The financial crisis has created serious problems for employing companies. In the current realities, many managers are thinking about a more rational distribution of resources for their effective use.
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Thus, in order to save money, technological and organizational working conditions are changing. For example, an employer approves a part-time or part-time working week for all or some employees. The need for such actions may be caused by other problems or tasks of the employer.
A change in working hours is formalized in two ways: by decision of the parties or unilaterally by the employer, if there is a legally approved basis for such operations. The procedure itself will depend on which of these options is valid in a particular case.
What does the law say?
The main legal act that regulates this issue is the Labor Code of the Russian Federation. It approves the main points regarding the working period regime.
In addition, this codified act enshrines the right of the employee and the employer to change it by agreement. The Labor Code of the Russian Federation lists the reasons for unilateral transformation of the operating mode.
In the Labor Code of the Russian Federation, the working period regime is regulated by Art. 100. Paragraph 15 of this norm approves the rule on the possibility of changing it. Moreover, the legislator gives the right to make such changes both in relation to all employees and selectively.
Labor Code of the Russian Federation
In paragraph 16 of Art. 100 of the Labor Code of the Russian Federation defines the process of transforming the working period regime by decision of the parties. You can perform such actions at any time.
Transformations may affect the start of the working day or the regime as a whole.
The law allows for a situation where these changes are made by decision of an employee, including a part-time worker. This is possible in situations approved in Art. 93 Labor Code of the Russian Federation. The employer may take the initiative to change the working hours in cases approved by Article 74 of the Labor Code of the Russian Federation.
Consequences and responsibility
https://youtu.be/yflimnTttLg
If you want to change your work schedule on your own initiative, the employer must strictly follow the requirements of Art. 74 Labor Code of the Russian Federation. Today, violation of workers' rights brings the employer not only administrative liability in accordance with the Code of Administrative Offenses, Art. 5.27, but also criminal, for example, in connection with recent changes in relation to older workers who have 5 years left to work before retirement.
Moreover, if the employer has received an order from the Labor Inspectorate regarding violations of workers' rights, it is necessary to conduct an internal investigation and oblige the manager to correct the actions, otherwise such manager is subject to disciplinary action.
In what cases is it allowed?
Changing the working period by decision of the parties is permitted in all situations. The employee and employer sign an additional act, which acts as an integral part of the employment contract.
The law also analyzes two more situations:
- change at the initiative of the employer;
- transformation at the initiative of the employee.
Grounds and reasons
All reasons for transforming the working period regime can be classified depending on the person initiating such transformations. Above, we determined that a change can occur by decision of the parties. In such a situation, the reasons are not identified.
A contract is a free document that defines the terms of interaction between an employee and an employer. If it contains provisions that do not contradict labor legislation, then it is recognized as valid. Accordingly, the employee and the employer are not limited in their ability to transform the order of interaction with each other.
Also, the basis for transforming the working period regime is the initiative of either the employer or the employee. Let us consider the reasons for making such a decision in more detail.
Employee initiative
When can an employee show such initiative? Similar situations are defined in Article 93 of the Labor Code of the Russian Federation.
For example, a pregnant woman, a parent of a child under 14 years of age (if the child is disabled, then until adulthood), as well as an employee who cares for an unhealthy family member as prescribed by a doctor can apply for a change.
Employer initiative
In accordance with current legislation, the employer has the right to change any terms of the employment contract, with the exception of those that affect labor operations performed by the employee.
Accordingly, he can transform the working period of his employee. The reasons for carrying out such an operation are approved in the Labor Code of the Russian Federation - transformation of organizational or technological working conditions, for example, technology for creating a product, innovations in technology, etc. In accordance with Part 1 of Article 74 of the Labor Code of the Russian Federation, this list is open.
The legislator does not name all the reasons that may be sufficient to make such decisions. Accordingly, the list is open and subject to broad interpretation.
Agreement of the parties
The decision to change working hours is made by agreement of the parties.
Both the employer and the employees can take the initiative, but final transformations will be possible only with a mutual decision.
If there are no disagreements
This is an ideal case, but even then the administration is obliged to insure itself against possible surprises, and therefore it is necessary to take a written statement of consent. It is written in free form, indicating the date. It is assigned an incoming number, and it can be either an individual or a group document.
Example 1.1
To the director of Blue Bird LLC, E.N. Sladkaya. From the seller of the Kolosok store, N. E. Kislaya
Statement
I agree with the transition to a new work schedule from July 1, 2020. Kislaya N.E. ___________________
June 25, 2020
Example 2.2
To speed up the procedure and avoid confusion, the administration, along with a notification of a change in work schedule, sends a sample application for consent. Either the direct manager or the HR department employee goes around the workers with the form. It can be in the following form:
To the General Director of PJSC “Golden Circle” U.Zh. Sivoy From the furniture workshop workers
Collective statement
We, the undersigned, agree to change the work schedule from April 1, 2020.
Date \____\_____\_____ Signature\ ____________ Sivolapok E.K.
Date \____\_____\_____ Signature\ ____________ Kruglov K.N.
Date \____\_____\_____ Signature\ ____________ Sidorov Zh.Zh.
Date \____\_____\_____ Signature\ ____________ Correct V.K.
Date \____\_____\_____ Signature\ ____________ Good J.C.
Duration
The duration of working hours is the number of hours during which the employee performed his labor function. This indicator in its normal form is 40 hours. This norm applies to all workers, except those who are provided with a reduced working period, for example, for minors.
If an employee works more than 40 hours/week, then this period must be paid as overtime.
It is necessary to distinguish these situations from cases of approval for an employee with irregular working hours. In such a situation, a person is occasionally involved in performing work duties outside the normal working period.
As compensation, he receives 3 additional days of vacation.
Temporary
A change in working hours may be necessary for a short period. For example, in the summer - this is very important when employees go on vacation and need to be replaced.
Several situations are possible here:
- execution of an additional agreement with a certain period of validity (by agreement of the parties);
- registration of internal part-time work for a specific period (can be for one day or month), which also implies the conclusion of an additional agreement to the employment contract.
Permanent
The permanent transformation of the working period regime is carried out in the general manner. Depending on the specific situation, changes can be made to the employment agreement and internal labor regulations - a local document adopted by the enterprise.
The reason for making such a decision also has its role. Thus, the need to obtain the consent of the employee or employer will be determined.
On our website you will find detailed information about the types of working hours. How to keep track of working hours? You will find an example here.
Features of changing working hours
Features of mode transformation are determined by the method of its consolidation in documents.
Three situations are possible:
- the working hours regime is approved in the employment contract and it does not coincide with what is established in the internal labor regulations (ILR);
- the regime is not enshrined in the employment contract, as it is identical to that approved in the PVTR;
- the regime is enshrined in the employment contract and in the PVTR, and it is the same.
Despite the fact that the employer, at his discretion, can change the PVTR when the enterprise does not have a representative body of workers, these provisions are not applicable to the working time regime.
Here, employees are also able to influence this condition when there are no grounds for their unilateral change by the employer.
How to change? General rules and procedure
Changing the working period schedule is carried out differently depending on the basis for the implementation of such transformations.
So, if transformations are carried out by mutual decision of the employees and the employer, then it is necessary to draw up new additional agreements. They may differ depending on the procedure for approving working hours in the documents of a particular company.
If changes are made to the PVTR, an order is issued to take appropriate actions, then an agreement is drawn up.
The new regime will be valid for the employee from the date of signing the additional agreement. This is very important, especially when the changes affect more than one employee.
Thus, innovations may not affect different employees at the same time.
If the regime is established by the employment contract
If the parties do not object to the changes, then it is enough to draw up additional agreements. They indicate the item to be changed, as well as its new edition.
This agreement is signed by both the employee and the employer.
If employees do not agree, the transformation procedure will look like this:
- the employer issues an order to change the regime;
- employees must be familiar with the order against signature;
- further, the employees either sign an additional agreement, or the employment contract with them will be terminated.
If the regime is established by internal regulations
If the working time regime is approved in the PVTR, the conversion procedure will be carried out in the following order:
- approve the local act in a new edition (with a changed regime) by issuing an order from the manager;
- enter into agreements with employees regarding their consent to the changes. The text indicates the names and positions of all employees who expressed their approval of the changes; the agreement must be drawn up in a quantity sufficient to be delivered to all employees, plus one copy for the employer.
Employee initiative
If the employee has grounds for changing working hours, he submits an application to the employer - a memo. The relevant document is reviewed by the head of the enterprise and a decision is made on it.
If the employee has sufficient grounds for changing the working period and has provided evidence of the objectivity of these reasons, for example, documents, then the employer cannot refuse him. This is directly stated in Art. 93 Labor Code of the Russian Federation.
Violation of this rule may become grounds for filing a complaint with the labor inspectorate or the prosecutor's office.
Application (sample)
The application is submitted by the employee if there are grounds for changing the working hours. A document is attached to it that proves the reality of certain reasons indicated in the text by the employee.
In the application, you must write the current working hours and the one to which the employee wants to change it. The appeal is submitted to the head of the employing enterprise.
Example:
Order (sample)
If an employee is approved for part-time work, an order is issued. It specifies the basis, term, and working conditions.
The employee must be familiar with the order against signature.
Example:
You will find examples of calculating summarized working hours in our article. What methods are used to estimate lost working time? Read here.
How to create a work book for the first time? Find out here.
Additional agreement (sample)
After the order is issued, an additional agreement must be drawn up. It is also signed by the employee and the employer.
The supplementary agreement serves as an integral part of the employment contract. It indicates the date of entry into force of the changes, as well as the text of the transformation and the numbers of paragraphs in which they will be included.
One of the copies is given to the employee, and the other to the employer.
Example:
Agreement of the parties
The decision to change the working hours can be made by the parties to the labor relationship by agreement. In such a situation, it is easiest to formalize such transformations.
The parties express their approval by signing an additional agreement to the employment contract.
This act reflects the text of the transformations, as well as the date they entered into legal force.
So, it must contain the following information:
- name of the parties to the agreement;
- the item that is subject to change;
- its new edition;
- the moment the agreement comes into force;
- details of the parties.
Employer initiative
We have already mentioned the reasons why the employer has the right to unilaterally decide on the need to change the working hours. In such a situation, employees tend to express their disagreement with the changes.
That is why it is necessary to carefully comply with all regulations of the legislator.
If the procedure is violated, unfavorable consequences for the employer may occur.
Notice (sample)
All affected employees must be notified accordingly.
This fact is confirmed by their painting. If an employee refuses to receive a notification, then this circumstance should be recorded in an act.
Notice in such a situation is sent by mail with return receipt requested.
Example:
How to analyze the use of working time fund? Find out from our article. Read about the features of flexible working hours here.
Order (sample)
An order in the process of changing the regime is issued in 2 cases:
- the need to make adjustments to the PVTR;
- the employer makes changes unilaterally.
In the first case, the order is necessary, since it confirms the fact of making a change to the local act.
It indicates the reason for the transformation - the need to transform the working time regime. The manager also makes an order to approve the PVTR in the new edition and conclude appropriate agreements with employees.
In the second case, the order to change the working hours must necessarily indicate the reason for the unilateral change in this condition. It also contains the text of the transformations.
If the working hours are approved in the PVTR, then in this order you can make an order to amend the local act.
Example of an order:
Additional agreement (sample)
The additional agreement is approved in accordance with the general procedure. The document itself is drawn up according to the same rules that we discussed above.
If employees do not agree
If employees still do not agree to carry out their labor function in the new conditions, then they will be offered vacant positions at this enterprise.
They can decide on further work within 2 months. The legislator does not prohibit an employee from terminating an employment contract earlier.
If after 2 months the employee has not accepted the vacancies offered to him and has not signed an additional agreement, then the relationship between him and the employer will be terminated.
How to change the work schedule at an enterprise within the framework of the law
Have a question related to changing the work schedule at the enterprise?
If you cannot do without changes, then you need to think about how to solve the issue competently. It is the employer who must ensure that the change in working hours occurs in strict accordance with the norms of labor legislation.
https://youtu.be/E1PM9nur-5o
Otherwise, you may provoke litigation from disgruntled staff.
There are many reasons that provoke an employer to change the work schedules of employees. Such factors include the expansion of production, the introduction of new production technology, and a change in the company’s activity profile.
Attention! When an enterprise switches to a 24-hour operating mode, it is necessary to determine a new operating mode for departments, change work schedules for employees, and introduce shifts.
The general procedure provided for by the Labor Code (Labor Code) of the Russian Federation (Russian Federation), any changes in labor relations can be made only by agreement of the parties. But the employer retains the right to unilaterally regulate issues related to changes in working hours. You can carry out such an operation if you follow the recommendations of specialists in the labor industry.
If necessary, employers have the right to regulate the conditions specified in the employment contract. He can unilaterally change the mandatory, indirect conditions. Those rules that relate specifically to the labor function of employees are not subject to correction.
• change in technological conditions; • change in the organizational structure of work.
Such circumstances include restructuring, staff reduction or expansion, introduction of new technologies, etc. More details about the reasons can be found in Art. 74, where this point is specified in part one.
The resolution of the Plenum of the Supreme Court (Supreme Court) “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” provides for another option that can be used as a basis for changing the work of an enterprise - improvement and modernization of workplaces after their certification.
Not forget!
1. Remember, in order for the upcoming changes to be painless for the company and not affect your reputation, you need to take into account the opinion of the representative body of employees. It is imperative to consult with representatives of the workforce if you plan to make changes to the Internal Regulations in anticipation of changes in working conditions in matters of working time.
2. Please note that the list of technological changes, on the basis of which a unilateral change in working conditions can occur, can be supplemented with one more item - restructuring, modernization of production. This could be the introduction of a new technological process, the launch of innovative equipment, or changing the rules for using work equipment.
3. Organizational changes include such circumstances as the introduction of shift work into practice, redistribution of tasks between departments (shops), changes in terms of standardization and payment of labor activities.
So, the owner of the enterprise has a forced need to change certain terms of the employment contract, what should he do next?
Our advice
1. The employee refuses to accept for review the notification about the need to change the operating mode of the enterprise, then be sure to draw up a report confirming this circumstance.
• reasons for the changes; • new working conditions; • date of implementation of the new schedule;
• other standards of interest to personnel.
Example
3. Issuance of an order amending the Internal Regulations in labor matters.
4. Notification of employees about upcoming changes and the reasons for innovations must be in writing. The law specifies a one-month period for informing personnel. The employer retains the right to choose the method of notification.
Method No. 1. Familiarization with signature. A printed order with the text about the need to introduce a new work schedule and the reasons for this innovation is presented to the employee for review. The employee who has read the order puts the stamp “Acquainted” and signs the date of familiarization. This number will be the starting date for informing staff.
Attention! It is impossible to force an employee to continue working under new conditions.
Method No. 2. Personal written notices. It should be noted right away that there is no single standardized form for this type of notification. The employer needs to independently compose the text of the introductory letter, making sure to indicate the reason for changing the work schedule of the enterprise in general and employees in particular. It is also necessary to indicate the date of innovation.
Example
A mark of delivery is an opportunity to control the number of people familiar with the innovations and a certain guarantee of action within the right margin. You will be able to avoid disputes related to violation of the deadline for familiarizing staff, since a stamp with the date of delivery of each employee’s copy will be kept by you.
The fact that the letter of introduction is drawn up in two copies can be found in Art. 77 Labor Code, paragraph 7 of the first section. The deadlines given for familiarization are regulated by Art. 74 TK.
The employer's further actions will depend on the employee's reaction.
All employees who have accepted the new working conditions enter into an additional agreement to the employment contract. This document must take into account all innovations and the date from which they will take effect. This additional agreement is drawn up and signed in two copies. The fact that the employee has received his copy of the agreement must be written on the employer’s copy.
Example of an employee statement
An additional agreement is the basis for issuing a new order. By this order, the employer changes the working hours. There is no clearly defined standard that an order must meet by law. A document is drawn up in any form. This order is presented to the employee for review against signature.
Example of an additional agreement
It is the employer's responsibility to offer employees all vacancies that it has in a particular region. The requirements for these vacancies are specified in Part 3 of Art. 74 basic laws in the labor sphere. He is obliged to offer vacancies in other regions if such an obligation is provided for in an employment contract or collective agreement.
So, the employee does not give his consent to continue the working relationship in the new labor conditions. The employer must notify the employee in writing of the availability of positions that may be suitable for him. You can offer a vacancy that matches the specification, qualifications and salary level of the person.
If such a position does not appear, then you need to recommend a vacant job. The position may be lower in rank or pay, but is familiar and feasible for the employee. The health status and qualifications of the personnel are taken into account.
We suggest you read: Where can you get advice on maternity leave?
Summary
So, let's summarize. The employer has the right to change the work schedule of employees if, due to new organizational or technological changes, the previous conditions cannot be maintained in the company. The procedure for this procedure is established in Art. 74 TK.
If the employer cannot offer a vacant position to an employee, or the person does not agree to work under new conditions, then the employment contract will be terminated in accordance with the terms of Art. 77, clause 7 of part one of the Labor Code. This is the employee’s refusal to accept newly introduced or amended terms of the employment contract.
If an employee is dismissed on the basis provided for in Art. 178, part 3 of the Labor Code, then the employer is obliged to pay him a benefit, the amount of which should be equal to the average two-week earnings.
Action according to this scheme will help the employer avoid claims and litigation. The law provides for the possibility of making changes unilaterally.
To avoid claims from employees, provide them with a written version of the order.
- HR records management
Business lawyer {amp}gt; Labor Law {amp}gt; Changing the work schedule without the employee’s consent: deadlines and algorithm
Current labor legislation defines work schedule as one of the essential working conditions. It is the subject of discussion with the future employee at the interview stage. For many candidates, it is the work schedule that is decisive for making a hiring decision.
Therefore, the decision to change the schedule cannot be made unilaterally, destroying the agreements reached. An unscrupulous employer can use it as a tool to put pressure on an employee.
