Changing the conditions included in the signed text of the employment contract, its voluntary conclusion and termination is a guaranteed right of the employee. No one may be unlawfully hired against his or her will, dismissed without the knowledge of the employee, and remain within the strict framework of the contract throughout its duration.
Unilateral action regarding labor relations is not permitted without the consent or at least prior notification of the other party, with rare legal exceptions. Such deviations from the rule and exceptions are made for the employer in order to make the most efficient use of capacity in the cases specified by law.
Essential and “non-essential” conditions
The significant ones include the following:
- Place of work. It is clearly indicated where exactly the work function is performed. This is important because the absence of an employee for four or more hours at a specified place is regarded as absenteeism and is a reason for possible dismissal.
- Labor function. It describes in detail what the employee will do. The most complete regulation of types of activity is given by the job description. The employee gets acquainted with it under his personal signature. An employer cannot require an employee to perform any unspecified functions. A change in a job description previously signed by a person being hired is considered a change in the job function and requires obtaining the consent of the employee governing it.
- Work period. The date from which the newly hired employee begins work is indicated. Until this moment, he is not considered an employee and the company’s policy does not apply to him. Salary and length of service are calculated from the specified day. Most often, the working day following the day the contract is signed is considered the first day of work, but this is not necessary. Fixed-term contracts have an expiration date. Perpetual ones do not.
- Terms of remuneration. If an agreement on this issue is not reached or it is not reflected in the written version of the contract, then it is not considered concluded, and the parties are not considered to be bound by an employment relationship.
In practice, all written conditions included in the text of the contract are considered essential. Strictly speaking, it is not permissible to change the employment contract in any part or clause. Any changes are formalized in a written document - an additional agreement. It contains the same details as the main contract. Changes that are not properly completed are invalid.
“Non-essential” conditions may include information about benefits, bonuses and other types of employee incentives. It is convenient for the employer to formalize each incentive with a separate order with the motivation for applying the incentive. Then it is in the nature of the employer’s right, and not his obligation. The decision to reward for a certain period of work is made by the employer without taking into account the opinion of the employee being rewarded.
The issue of improving the social and living conditions of workers is similarly considered if the employer has a social policy at the enterprise.
The position regarding the employee’s obligation to work for some time for the employer is somewhat controversial if the employer paid for the employee’s training or organized it on his own. The courts recognize the right of the employee to offer the employer to pay part of the expenses and terminate the employment contract with him.
In principle, all conditions specified in the contract are considered essential in practice. Therefore, in order to avoid protracted proceedings with administrative and judicial authorities protecting workers, it is necessary to adhere to a strict algorithm when implementing a decision to change its conditions.
Job
Employees' wages are reduced, work hours are changed, and sometimes additional responsibilities are introduced. Such changes, which worsen working conditions, present the employee with a choice - either work for less money or quit with minimal payments. In both cases, the employer's costs are reduced.
This begs the question: to what extent is it even legal to reduce workers’ wages and otherwise change the terms of an employment contract?
As a general rule, in accordance with Art. 72 of the Labor Code of the Russian Federation, changing any of the terms of an employment contract is allowed only by agreement of the parties to the employment contract - the employee and the employer. The initiative for such changes can come from both the employee and the employer (for example, the employee may ask to be transferred to another department, or the employer may offer the employee a salary increase), but neither party has the right to change anything without the consent of the other. With mutual agreement, the terms of the contract change, and from the date agreed upon by the parties. If agreement to change the terms of the employment contract is not reached, the employment relationship simply continues as it was.
However, there are situations when an employer can change the terms of an employment contract unilaterally (that is, without the consent of the employee). Current legislation links these situations to the fact that labor relations cannot be maintained in their previous form.
In particular, Art. 74 of the Labor Code of the Russian Federation gives the employer the opportunity to change the terms of the employment contract with the employee in the event that everything in the organization has changed so much that it is impossible to maintain the previous conditions for objective reasons.
The law directly establishes the requirements, subject to which the employer may unilaterally change the employment contract:
- The presence of organizational or technological changes in working conditions at the enterprise.
The employer’s desire to change one or another condition of the employment contract (for example, reduce wages) cannot be arbitrary. He must have evidence that this is caused by changes in working conditions - organizational (for example, the company’s management decided to transform the organizational structure, reassign a department, redistribute responsibilities between the employer’s departments, etc.) or technological (for example, new equipment was purchased , it is planned to re-equip production, improve jobs based on a special assessment of working conditions). Thus, it is impossible, for example, to justify the need to reduce an employee’s salary by temporary financial difficulties, violations of agreements by counterparties, etc.
- It is impossible to maintain the previous terms of the employment contract due to the changes that have occurred.
In Art. 74 of the Labor Code of the Russian Federation directly states that changing the terms of the contract with an employee, even if the above changes are present, is possible only if it is impossible to maintain the employment contract in its original form (for example, if, according to the contract, the employee reports to the deputy head of the department, and the position of the deputy head of the department has been reduced, In this part, the contract can be changed and a different immediate supervisor can be assigned to the employee). Despite the fact that today courts of general jurisdiction rarely pay attention to this wording of Article 74 of the Labor Code of the Russian Federation, the Constitutional Court of the Russian Federation has repeatedly emphasized that judges must evaluate this (see, for example, Determination of the Constitutional Court of the Russian Federation dated September 29, 2015 No. 1831-O)
- Compliance by the employer with the procedure for notifying the employee of upcoming changes.
The employer is obliged to notify the employee of upcoming changes no later than two months before the moment when he intends to “legalize” these changes. In the notice, the employer must explain the reason for the upcoming changes.
If the employee does not agree to work under the new conditions, the employer is obliged to offer him in writing another available job (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower paid job), which the employee can perform taking into account his health condition . The employer is obliged to offer the employee all vacancies that meet the specified requirements that he has in the given locality (and in other localities - if this is provided for by the collective agreement, agreements, or employment contract).
In the absence of the specified work or the employee’s refusal of the offered work, the employment contract with the employee may be terminated in accordance with clause 7 of part one of Art. 77 of the Labor Code of the Russian Federation on the basis of “an employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties.” In addition to general guarantees, an employee dismissed under clause 7, part 1, art. 77 of the Labor Code of the Russian Federation, has the right to receive severance pay in the amount of two weeks’ average earnings (Article 178 of the Labor Code of the Russian Federation).
- The employer does not have the right to change the employee’s job function.
The labor function is defined in Art. 15 of the Labor Code of the Russian Federation as “work according to the position in accordance with the staffing table, profession, specialty, indicating qualifications; specific type of work assigned to the employee.” Simply put, this is what the employee undertakes to do by order of the employer when entering into an employment relationship, a set of your job responsibilities.
To prevent your employer from burdening you with additional unpaid work, when concluding an employment contract, it is very important to define as specifically as possible what exactly your job responsibilities are and avoid language like “and follow other instructions from management.”
It is believed that if an employer tries to unilaterally change the labor function of an employee, that is, to oblige him to perform a job other than the one for which the employee applied, then it is no longer a question of changing the terms of the employment contract, but of a layoff, and the employer is obliged to provide the employee with all the benefits due to this. case of warranty.
If you receive notice of a change to the terms of your employment contract, you have three options.
First, you can agree to continue working under the new conditions and sign an additional agreement to your employment contract. From the moment you sign such an agreement, your working conditions will change, and you will no longer be able to appeal anything.
Secondly, you can refuse to work under the new conditions by sending a written message to the employer about this. After the two-month notice period has expired, the employer will have the right to fire you, and if the changes in the terms of the employment contract contained in the notice were not justified, you will be able to go to court and have such notice declared illegal.
Finally, you may choose not to respond to the notice and to provide neither consent nor refusal. In this case, the employer will not fully understand your position and may not risk changing the terms of the contract or firing you. It should be borne in mind that when it comes to changing the size of your salary, it is better not to remain silent - it may happen that after the expiration of the notice period you continue to work, and in two weeks the employer will calculate your salary according to the new rules, stating that since you are not refused means they agreed.
It should also be noted that notification of changes in the terms of the employment contract on the basis of Art. 74 of the Labor Code of the Russian Federation is not formally a violation of rights, even if from its content it is clear that the requirements listed above are clearly not met. Having notified of a change in the terms of the contract, the employer is not obliged to actually change them (that is, if employees, after the expiration of the warning period, silently work under the same conditions, the employer is not obliged to change the conditions of their work or fire them, he can leave everything as is). Therefore, it is not worth going to court to declare the notification illegal. If you are sure that the content of the notice is clearly contrary to the law, you can file a complaint with the state labor inspectorate - within two months they may well understand the situation and convince the employer to abandon his idea.
Text: Sergey Saurin, lawyer at the Center for Social and Labor Rights.
Photo: https://pixabay.com
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When employee consent is not required
The introduction of inconsistent changes is provided for by labor legislation. A complete list of such cases is given in the Labor Code of the Russian Federation.
Changes must be justified. The employer makes a corrective decision if technological and/or organizational innovations are introduced or existing settings are changed.
Technological changes involve the purchase and introduction of new equipment into the process, changes in the order of production (provision of services), certification of workplaces with their subsequent transformation.
Organizational changes mainly concern changes in the structure of the enterprise through the creation and abolition of structural divisions, as well as changes to local regulatory documents, especially to the staffing table.
Important! If the employer has undergone the above or similar changes, then changes to contracts with employees are inevitable. They can be carried out unilaterally, that is, without asking for consent, but with mandatory notification of those working on them.
Changes initiated by the employee
If the employee believes that changes need to be made to the contract, he should contact the employer. It is advisable to prepare a draft of a new contract or additional agreement to it: this will make it easier for the employer to make a decision on making changes.
The appeal itself is drawn up in a statement, which sets out the essence of the proposals, the motives that led to the need to make changes, as well as the expected time frame for making changes.
Important! If the employer agrees with the proposal, he puts a corresponding mark on the application and issues an order. If the employer agrees with only part of the changes being made, then he returns the application to the employee with a proposal to state the requirements differently. If the employer disagrees, the application with a note of refusal is returned to the employee.
The employee can demand changes by filing a lawsuit to force the employer to agree to the requirements and accept them. But positive law enforcement practice on this issue has not yet clearly emerged.
Procedure for changing the terms of the contract
In general, the change procedure looks like this:
- The company, represented by the director, his deputy or other authorized person, draws up written notifications to employees about upcoming changes. The document must describe both the essence of the innovations and the reasons that caused them.
- These messages are communicated to each employee with whom it is expected to sign a new version of the employment contract.
- The employee receives the document and signs confirming that he has read it. In case of disagreement, the notice is still considered to have been served, and an act to this effect is drawn up in the presence of witnesses - other employees.
- If the employee agrees with these changes, he signs an additional agreement. agreement to the contract. The manager signs an order reflecting the fact of changing the terms of the agreement.
- If he does not agree, then the company should offer him another position in which he can perform the duties. If there is no such vacancy at the moment, the company has the right to legally terminate the employment relationship in accordance with clause 7 of Art. 77 TK. In this case, the employee is given a work book, and the final payment is made to him. However, in this case it is not necessary to work 14 days.
Algorithm for making changes
The employer's procedure is as follows:
- Issuance of an order on organizational and/or technological changes at the enterprise.
- Publication of a draft order for future changes.
- Preparation of an additional agreement or a new version of the entire contract.
- Introducing design changes to accompanying documents: shift schedule, enterprise work schedule, staffing schedule, job descriptions, regulations on certain types of enterprise activities, regulations on divisions and other local acts.
- Familiarization of the employee with draft documents for signature (either they are signed in a special column in the draft order, or in separately issued notifications). Introductory events are carried out at least two months before the amendments to the employment contract come into force.
- Issuing an order for changes.
- Concluding additional agreements or new contracts.
If the employee refuses to accept the changes being made
The employee’s refusal may not be motivated by him in any way. Its presence is enough. The employee either does not sign the notice of upcoming changes (a draft order or a draft of a new local act), about which a commission of three people draws up an act, or signs and accompanies it with the note “does not agree.”
If an employee expresses disagreement and refuses to work under the new conditions, the employer offers him to work in another position with a possible change in functionality, if these positions are not affected by the introduced innovations.
This is especially reasonable when the employee does not agree with a reduction or new salary calculation or with a new schedule. By moving to a position with approximately the same previous pay, he loses nothing, except that he can perform a different job function within the framework of his qualifications.
Attention! If an employee opposes a job change, then he is offered available vacancies in his desired location or territory.
If the employee, in principle, does not agree with the changes being made, does not accept innovations and refuses to work in new organizational and/or production conditions, then in this case the employer has the right, in accordance with paragraph 7 of Article 77 of the Labor Code of the Russian Federation, to dismiss him.
Commentary on Article 74 of the Labor Code of the Russian Federation
As a general rule, changes to the terms of an employment contract determined by the parties are allowed only by agreement of the parties and in writing (see Article 72 of the Labor Code and commentary thereto). At the same time, the commented article contains exceptions to this general rule and allows, at the initiative of the employer, to change the conditions agreed upon by the parties without the consent of the employee. In this case, changing the labor function is not allowed.
The legislator does not disclose the concept of either organizational or technological working conditions, but only points to such reasons as changes in technology and production technology, structural reorganization of production, etc. (for example, merger, accession, division, transformation, spin-off, downsizing and ( or) staff of employees, etc.).
It is very important that changing the terms of an employment contract is possible only when changes have occurred in the organizational or technological working conditions and, accordingly, the agreed conditions cannot be maintained. Therefore, the employer is required to provide appropriate evidence of such changes. In paragraph 21 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2, the need to take into account Art. 56 of the Code of Civil Procedure, according to which the employer is obliged, in particular, to provide evidence confirming that the change in the terms of the employment contract determined by the parties was a consequence of changes in organizational or technological working conditions, for example, changes in equipment and production technology, improvement of workplaces based on their certification, structural reorganization of production, and did not worsen the employee’s position in comparison with the terms of the collective agreement or agreement.
In the commented norm, in comparison with the previous edition, the procedure for changing the terms of an employment contract determined by the parties for reasons related to changes in organizational or technological working conditions is supplemented with provisions that eliminate the discrepancies that existed in the past regarding the calculation of the deadlines for warning employees about an upcoming unilateral change in labor conditions agreement and possible dismissal in case of disagreement to continue working under new conditions.
The employee must be notified by the employer in writing of the introduction of these changes, as well as the reasons for such changes, no later than two months in advance, unless otherwise provided by the Labor Code.
Changes to the terms of the employment contract determined by the parties cannot be introduced if they worsen the employee’s position in comparison with the established collective agreement or agreements.
However, if the employee does not agree to continue working under the new conditions, then the employer is obliged to offer him in writing another job available to him (a vacant position or a job corresponding to the employee’s qualifications, a vacant lower position or a lower paid job), which must correspond to his state of health. In the absence of such work or in the event of the employee’s refusal to do it, the employment contract with him is terminated under clause 7 of Art. 77 Labor Code (see commentary to Article 77).
If the employee refuses to continue working under the new conditions, the employer is obliged to offer existing vacancies that meet the necessary requirements and are located in the given area. But the employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.
Part 5 of the commented article provides that if the circumstances specified in part 1, i.e. changes in organizational and technological working conditions may lead to mass layoffs of workers; in order to preserve jobs, the employer has the right, taking into account the opinion of the elected body of the primary trade union organization, to introduce a part-time working day (shift) or part-time working week, but only for a period not exceeding six months. In this case, the procedure for taking into account the opinion of the elected body of the primary trade union organization, provided for in Art. 372 Labor Code (see commentary to it). The criteria for mass dismissal of workers are determined by industry and (or) territorial agreements (see Part 1 of Article 82, Articles 45 and 46 of the Labor Code and commentary thereto). In accordance with the Resolution of the Council of Ministers - Government of the Russian Federation dated 02/05/1993 N 99 “On the organization of work to promote employment in conditions of mass layoffs” <1> the main criteria for mass layoffs are indicators of the number of workers being laid off in connection with the liquidation of enterprises, institutions, organizations or layoffs number or staff of employees for a certain calendar period.
——————————— <1> SAPP RF. 1993. N 7.
If an employee refuses to continue working on a part-time (shift) or part-time work week, his employment contract is terminated due to a reduction in staff or numbers under clause 2 of Art. 81 of the Labor Code with the provision of appropriate guarantees and compensation (see Article 81 of the Labor Code and commentary thereto).
A part-time working regime introduced by the employer for a period of no more than six months can be canceled before the expiration of this period and taking into account the opinion of the elected body of the primary trade union organization (see Article 372 of the Labor Code and commentary thereto).
After six months after the employer introduced the part-time work regime, all employees must be transferred to the previous normal work schedule.
