Order on reorganization (enterprise, organization)

Personnel documents for the reorganization of a closed joint stock company into an LLC

Please tell me! We have undergone a reorganization from a closed joint stock company to an LLC. How are we required to notify employees (announcement at the information stand, an order with their approval, or a personal letter?). I also wanted to know about the need to change such documents as Job descriptions, Regulations on departments, Internal labor regulations, collective agreement and other internal regulations of the organization. If there is a need for a change, then how (a general order with a list of “make changes”, a stamp “in connection with the reorganization.” or is it necessary to approve everything with a new name?).

Reorganization: everything a personnel officer needs to know

The legislator clearly defined that a change in the subordination of an enterprise to a new owner cannot be considered a basis for terminating employment contracts. It is worth understanding that the reorganization of an enterprise is a significant change in working conditions.

Therefore, it is necessary to warn the person about the upcoming procedure. Make appropriate entries in personnel documents. If necessary, sign additional agreements. The interests of personnel must not be infringed, otherwise disputes and litigation cannot be avoided. What does HR need to know about reorganization?

Have a question for a lawyer?

In accordance with Art. 57 of the Civil Code of the Russian Federation, reorganization of a legal entity can be carried out in the form of merger, accession, division, separation or transformation.

Succession during the reorganization of legal entities occurs in the following order (Article 58 of the Civil Code of the Russian Federation):

— when a legal entity of one type is transformed into a legal entity of another type (change of organizational and legal form), the rights and obligations of the reorganized legal entity are transferred to the newly emerged legal entity in accordance with the transfer act.

A legal entity is considered reorganized, with the exception of cases of reorganization in the form of merger, from the moment of state registration of newly emerged legal entities. When a legal entity is reorganized in the form of the merger of another legal entity, the first of them is considered reorganized from the moment an entry is made into the unified state register of legal entities about the termination of the activities of the affiliated legal entity (Clause 4, Article 57 of the Civil Code of the Russian Federation).

In accordance with Part 5 of Art. 75 of the Labor Code of the Russian Federation, reorganization of an organization (merger, accession, division, separation, transformation) cannot be a basis for terminating employment contracts with employees of the organization. Consequently, after the reorganization, employment contracts with employees continue to be valid on the same terms. However, it is necessary to reflect the changes that have occurred in personnel documents.

First of all, the employer must notify employees about the reorganization. The deadline and form of notification are not established by labor legislation, so the easiest way to do this is in the form of a reorganization order, familiarizing the employees with it against signature. In the future, this order will be the basis for making an entry in the work books.

In any case, the notification must be sent in such a way that employees have the opportunity to take advantage of the provision provided to them by Part 6 of Art. 75 of the Labor Code of the Russian Federation the right to refuse to work in a reorganized organization. If the employee refuses to continue working, the employment contract with him is terminated in accordance with clause 6 of Part 1 of Art. 77 of the Labor Code of the Russian Federation (Part 6 of Article 75 of the Labor Code of the Russian Federation).

Company reorganization: preparing personnel documents

Attention:
Registration of reorganization by merger To start the reorganization process, you must have an approved decision on hand, establishing that this process is legal and the only way out of the current situation. Next, the head of the reorganized company must notify the tax service and creditors that all of his obligations will be transferred to another company. To properly redistribute property and documentation, it is necessary to conduct a complete inventory.

At the same time, checking the availability of all required documents, equipment and other valuables should be carried out with the participation of not only current but also future owners, so that the receiving party does not have future problems due to the lack of any materials.

Orders on the composition of the commission must be submitted no later than __ days from the date of their publication.

https://www.youtube.com/watch{q}v=VNynEK0yaD8

a) immediately bring this order to the attention of the relevant government bodies and services;

b) notify the employment service authorities of the upcoming release of workers by ______;

c) in writing, against signature, notify the other employees of the institution about the upcoming reorganization in accordance with paragraph 1 of this order within the period before ____________;

d) make an inventory of cash balances on the accounts of institutions, receivables and payables and notify in writing the creditors and debtors of the institution about the reorganization of the legal entity by ________________;

e) prepare a list of property on the balance sheet of Reorganizing LLC and submit it for approval to Reorganizing LLC;

g) after completing the reorganization measures, draw up a transfer act of property and obligations and, together with the application and decision on reorganization, submit it to the registration authority at the location of the legal entity to which the merger is being carried out, in order to make a record of the termination of the activities of the merged legal entity;

3.2. Monitor the transfer of property, receivables and payables;

3.3. Provide information on the progress of reorganization activities to __________________________________________.

a) within _________, prepare notifications about the reduction in the number and staff of employees and personally familiarize, against signature, each employee subject to dismissal under clause 2, part 1, art. 81 Labor Code of the Russian Federation;

b) within the period before ______with the written consent of the employees, prepare an order for the dismissal of employees in the prescribed manner.

- offer the employee subject to dismissal, in accordance with his qualifications, another job (and in the absence - any lower or lower paid position) if there are vacancies in the state;

— after issuing an order on the transfer of property of reorganized organizations, ensure its acceptance with the preparation of an act of acceptance and transfer of property;

— ensure the statutory activities of institutions throughout the entire period of reorganization.

6. (Other things that may relate to the ongoing reorganization, for example, coordination with the trade union organization.)

7. I reserve control over the execution of this order.

LLC "Reorganizing"

FULL NAME.

In the event that you intend to transfer employees to the organization to which the company is joining, before completing the reorganization procedure (before making an entry in the Unified State Register of Legal Entities), the dismissal of employees will take place in the order of transfer to another organization (clause 5, part 1, article 77 Labor Code of the Russian Federation). An employee can be transferred to a permanent job in another organization by mutual decision of the current employer and the receiving organization.

In this case, the initiator of the transfer can be either the employer or the employee. This is stated in Part 2 of Article 72.1 of the Labor Code of the Russian Federation. Such a transfer occurs through dismissal from the previous place of work, since in another organization a new employment contract is concluded with the employee (part 4 of article 64 and part 2 of article 72.1 of the Labor Code of the Russian Federation). To process the transfer, the current employer must issue an order to terminate the employment contract in connection with the transfer in Form No. T-8.

Often, reorganization entails organizational and technological changes, in connection with which the terms of the employment contract determined by the parties are subject to change. Often, after completing the reorganization procedures, the employer is forced to revise the staffing table. Let's consider the procedure for registering the transfer of an employee to another permanent job.

In the case where a transfer to another permanent job is carried out at the initiative of the employer, registration may begin with a proposal for transfer (see Appendix 1). If the employee agrees to be transferred to another job, the parties enter into an additional agreement to the employment contract, which defines all the conditions for performing the new job function (see Appendix 2).

Federal Law of 08.08.2001 N 129-FZ). These five days begin to flow from the day the registration documents are submitted to the tax authority. If reorganization is a pretext for staff reduction We have found that reorganization cannot serve as a basis for terminating employment contracts. But in practice, one of its goals is to reduce the number of employees.

Attention

Rostrud specialists consider it legal to reduce staff in connection with the reorganization (Letter dated 02/05/2007 N 276-6-0). Please note: if an employee quits, there is no need to make entries about the reorganization in his work book (see sample 3 on p. 119). Do not confuse reorganization with liquidation. Some employers, when carrying out reorganization, dismiss employees on the basis of clause.

1 tsp. 1 tbsp. 81 of the Labor Code - in connection with the liquidation of the company. But it's not right.

Important

An entry must be made in the work book: “Dismissed by transfer to (name of organization) with the consent of the employee, clause 5 of part 1 of article 77 of the Labor Code of the Russian Federation” (clause 6.1 of the Instructions approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 No. 69 , clause 15 of the Rules approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225). The new employer must conclude an employment contract with the employee and issue a hiring order. The following entry is made in the employee’s work book: “Accepted to (name of structural unit) for position (name) in the order of transfer from (name of organization)” (clause.

We suggest you read: Searching a house or apartment: procedure and rules

3.1 and 6.1 of the Instructions approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 No. 69). Upon dismissal by transfer, a full payment is made from employees, including compensation for unused vacation.

Reason for drawing up the order for reorganization

In the course of its activities, the employer, for one reason or another, may carry out reorganization.

Reorganization means the termination of the existence of an employer with the transfer of its rights and obligations to other persons. The reasons for reorganization may be different, for example: simplification of doing business; release of new products; complete change of internal structure, etc.

According to Art. 57 of the Civil Code of the Russian Federation, the procedure for reorganizing an employer can be carried out in five forms : transformation, separation, division, accession, merger.

In Art. 75 of the Labor Code of the Russian Federation describes in detail the legal consequences for employees.

In accordance with Part 5 of Art. 75 of the Labor Code of the Russian Federation, reorganization of the employer or change in the type of state or municipal institution cannot be grounds for terminating employment contracts with employees. To maintain the employment relationship, the employee's consent is required.

In case of disagreement to continue working in connection with the reorganization, the employee is subject to dismissal in accordance with clause 6, part 1, art. 77 Labor Code of the Russian Federation.

After entering information about the reorganization into the Unified State Register of Legal Entities, the employer must issue an order.

When reorganizing an enterprise, what should employees do?

If the reorganization has negative consequences, employees can defend their interests in court and other authorities. In particular, having been laid off, some employees have the right to preferential retention at the enterprise. And if it was not observed, the employer should be pointed out to the employer and, if necessary, go to court.

Changing the terms of the employment contract during the reorganization can also be challenged. In court, the employer will have to prove that it was a consequence of this procedure, and not due to the desire to worsen the working conditions of subordinates (clause 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004, as amended on November 24, 2015).

The procedure for drawing up and contents of the reorganization order

The labor legislation of the Russian Federation does not provide for a unified form of this order, therefore HR specialists draw up the document arbitrarily.

The presented sample reorganization order contains the following information:

a list of information about the employer that has changed (for example: indicate the new name of the employer);
form of reorganization;
date of entering information about changes in workers’ work books;
procedure and date for notifying employees;
information about the employee who is responsible for monitoring the execution of this order (full name and position);
etc.

The order must be signed by the head of the organization, and the order must be presented to the interested parties under the signature.

The order for reorganization must be registered in the register of orders (instructions) for the main activity and stored in the organization permanently in accordance with clause 19 of the “List of standard management and archival documents generated in the course of the activities of state bodies, local governments and organizations, indicating storage periods » dated August 25, 2010

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Algorithm of action for the personnel service at the time of enterprise reorganization

The head of the structure must inform about upcoming changes at the enterprise. He issues the appropriate order, which indicates the timing of the event, the reasons for the decision and the form of the procedure - merger, accession, etc. We introduce the document to interested parties.

After this, personnel officers undertake to prepare notifications for staff about the reorganization. The document must contain (can be compiled in free form):

Full name of the organization, its details, actual location.
Information about the addressee - position, full name.
Date – the moment of actual reorganization and planned staff reduction.
It is necessary to make an entry with the wording “The employee has the right on the basis of Art. 75 of the Labor Code of the Russian Federation to refuse to perform his duties, then he will be dismissed under clause 6. Part 1 Art. 77 Labor Code of the Russian Federation."
Signature of the head of the structure and the notified person.
Make a note where the person signs “I received a warning, I agree/disagree to continue the employment relationship”), underline what is necessary.

If a new company changes its name or details, an additional agreement must be concluded with each employee. We must indicate in it:

What scheme will the employer's reorganization take place?
Details of the order that became the basis for the procedure.
List all items that have changed. For example, clauses 6,10,12, where the old name of the enterprise is indicated, should now contain the new one. You can use the wording: “replace the words “Summer LLC” with “Winter LLC”.

Make a corresponding entry in the workers’ work book that will reflect the change in working conditions for the person. This may be wording about changing the name of the company or dismissal if there was a refusal to continue working.

An example of an entry in a work book about the termination of a contract

In practice, we make an entry as follows - indicate the next serial number, skip the date (if it is not a dismissal). In the appropriate section “Job Information” we enter information about the reorganization, indicate the new name and date. Column “Grounds” - we make a link to the order. This should be an order from the employer, where he instructs to make appropriate adjustments to the personnel document flow due to upcoming changes.

What does the reorganized company do?

STEP 1. We notify each employee in writing about the reorganization

The notification is prepared in any form.

Limited Liability Company "Nostalgia"

"29" November 2011

Accountant Kiseleva O.I.

NOTIFICATION

Dear Olga Ivanovna!

We notify you that in connection with the decision of the general meeting of participants dated November 15, 2011, Nostalgia LLC will be reorganized from February 1, 2012 in the form of merger with Harmony LLC.

Based on Art. 75 of the Labor Code of the Russian Federation, reorganization is not a basis for terminating employment contracts with employees.

But you have the right to refuse to continue working in connection with the reorganization. In this case, the employment contract with you will be terminated in accordance with clause 6, part 1, art. 77 of the Labor Code of the Russian Federation. Payment of severance pay and preservation of average earnings for the period of employment upon dismissal on this basis, Art. 178 of the Labor Code of the Russian Federation are not provided for.

If you refuse to continue working due to the reorganization, please notify the HR department no later than January 31, 2012.

November 29, 2011

STEP 2. We take applications for dismissal from employees who refused to work for the successor

The application is drawn up in any form.

It can be formatted like this.

General Director of Nostalgia LLC Biryukov I.N. from the seller Zvereva Anna Igorevna

I ask you to dismiss me effective January 31, 2012 due to refusal to continue work in connection with the reorganization of Nostalgia LLC in the form of merger with Harmony LLC.

Zvereva A.I.

January 27, 2012

STEP 3. Formalize your dismissal

We issue dismissal orders using the unified form No. T-8.

Based on these orders, we make entries in the work book of employees who refused to work for the successor.

If the employee refuses to continue working

If an employee decides to refuse to continue working, he must write a statement requesting dismissal due to refusal to continue working due to reorganization. Based on such a statement, the employer issues an order in Form N T-8 and dismisses the employee under clause 6, part 1, art. 77 Labor Code of the Russian Federation. Note that when indicating the reason for dismissal, the order should write “in connection with refusal to continue work due to the reorganization of the institution,” and at the base indicate the name and details of the document on the basis of which the reorganization is taking place (resolution of the head of the city administration, decision, protocol, etc.). etc.), and details of the employee’s written refusal to continue working.

Approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 N 1 “On the use of unified forms of primary accounting documentation for recording labor and its payment.”

What does the assignee do?

STEP 1. We issue an order for the “transfer” of workers from one company to another

An order in a free form is needed so that the accounting department of the legal successor includes in its payroll the employees who “transferred” from the reorganized company.

Limited Liability Company "Harmony"

Order No. 1k

"1" February 2012

In connection with the reorganization of Nostalgia LLC in the form of merger with Harmony LLC, from February 1, 2012, employees of Nostalgia LLC who did not refuse to work in connection with the reorganization are considered employees of Harmony LLC.

STEP 2. We make entries in work books and personal cards of employees

The procedure for making entries in the work books of employees during reorganization in the Instructions for filling out work books to approved. Not defined by Resolution of the Ministry of Labor dated October 10, 2003 No. 69. We contacted Rostrud for clarification.

Cash compensation for vacation - what a personnel officer should know during reorganization

You need to calculate in advance the number of days if employees quit:

If a person has worked for 11 months, this period must be counted as length of service, which will provide the basis for paid leave. That is, this category will receive full compensation.
Worked less than 11 months - calculate the amount of payments proportionally.

It is worth considering that if an employee worked for less than half a month, these days should be excluded from the length of service for calculating vacation pay. More than 15 days – round up to a full month. When reorganizing departments and reducing staff, dismissal, you need to find out the motivated opinion of the trade union. This concerns a situation where a person will be dismissed from office on the basis of clause 2, part 1, article 81 of the Labor Code of the Russian Federation.

An example of an entry in a work book about the termination of a contract under Art. 81 h 1

If the employer ignored this requirement and did not obtain the consent of the elected body before issuing an order to terminate the contract, the dismissal will be considered illegal. The employee will have to be reinstated and the entire procedure will have to begin with him again - from serving the notice to finding out the opinion of the trade union.

Reorganization in the form of affiliation: personnel issues

Reorganization of a company can occur in different forms (Article 57 of the Civil Code of the Russian Federation):

The chosen form of reorganization affects the procedure for succession of a legal entity. But issues related to labor relations are resolved in a similar way in all cases. Therefore, it is enough to consider the procedure for their settlement using the example of one of their reorganization forms.

So, if an enterprise undergoes a reorganization in the form of a merger, personnel issues must be resolved consistently. Even if the staffing schedule and the terms of the concluded contracts do not change, the employer should:

Warn employees in writing about the impending reorganization. The notices remind them of the right to voluntarily refuse to continue working for the new company.

If one of the employees decides to quit, based on their statements, a corresponding order is issued.

The employment contract with employees who wish to leave is terminated on the basis of clause 6 of Art. 77 TK. A record of this is made in work books and personal cards of employees.

An entry is made in the work books and personal cards of the employees remaining at the enterprise that the company has been reorganized in the form of a merger (with reference to the corresponding decision of the participants). Changes are also being made to employment contracts. Previously, the enterprise issues an order that the employees of the merged company are considered employees of the organization to which the merger took place.

If an employer plans to make redundancies during reorganization or change the terms of employment contracts, then he must notify those affected in writing no later than two months before dismissal (Articles 74, 180 of the Labor Code). In the first case, dismissal occurs on the basis of clause 4 of Article 77 of the Labor Code, and in the second - on the basis of clause 7 of Article 77 of the Labor Code, if the employee does not want to work under new conditions.

Reorganization by merger, what to do with employees – Human Resources Management

1 Reorganization of an enterprise in the form of merger
2 reduction during reorganization by merger
3 Reorganization by merger consequences for employees
4 Reduction during reorganization by merger
5 Reorganization by merger
6 Personnel nuances during reorganization in the form of affiliation

Due to ongoing changes in the Russian economy, it is becoming more difficult for many market participants to conduct their activities efficiently and without losses. The reasons can be different: the presence of stronger players, rising prices for raw materials, etc.

Therefore, many of them decide to join forces to create a larger enterprise that can survive in the current conditions and stay afloat. In addition, the reorganization is carried out in order to optimize taxation and management.

Existing methods of enterprise reorganization

Existing civil legislation provides for 5 forms for the reorganization of enterprises:

separation;
selection;
transformation;
merger;
accession.

Only the last two of them are suitable for merging organizations. Each has its own special rules for the order of implementation.

If a merger is a procedure in which the organizations participating in it cease to exist, and all their rights and obligations are transferred to a new legal entity (created as part of this process), then annexation is a slightly different phenomenon. This is a form of reorganization in which, out of several persons participating in the procedure, at the end only one (joining) remains, and the rest (joining) cease to exist.

I choose one or another form of reorganization, its initiators proceed from the circumstances of a particular situation, the need to preserve any of the participating companies, the complexity of the documentation, and, of course, the goal pursued by carrying out these procedures.

According to the Civil Code of the Russian Federation, it is allowed to combine various forms of reorganization, as well as the participation of 2 or more organizations, including different organizational and legal ones.

It is no secret that mergers and acquisitions are carried out, among other things, to close existing ones. In this case, the process of affiliation is most acceptable, which is facilitated by the absence of the need to create a new organization.

If we calculate the time spent on carrying out reorganization actions in the form under consideration, we can establish that at least 3 months must be allocated for these procedures.

Various ways of reorganizing Joint Stock Companies are discussed in the following video story:

Mechanism of accession as part of the reorganization

This procedure is implemented through several stages.

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Making a decision on reorganization by each participant

Carrying out this stage depends on the OPF (organizational and legal form) of the enterprise. Thus, in an LLC, decision-making on this issue is within the competence of the general meeting of participants (GMS).

Thus, it is accompanied by the preparation, convening and holding of the General Assembly (as a rule, extraordinary). The said decision must not only determine the main conditions of the reorganization, but also approve the terms of the merger agreement, and in the case of an LLC being merged, then the transfer deed .

Notification of the registration authority (IFTS) about the start of the procedure

According to the requirements of the law, it is necessary to submit a notification in form P12003 and the corresponding decision on reorganization to the authorized bodies.

At the same time, the law establishes a period for performing this action - no more than 3 working days from the date of the decision made by the last of the accession participants.

It is the authorized representative of the latter, as a rule, who is the applicant when filing a notification.

Notification of creditors about the commencement of relevant procedures

In accordance with Art. 60 of the Civil Code of the Russian Federation, after a decision on reorganization is made, it is necessary to implement measures to notify interested parties, namely creditors, government bodies, etc.

For this purpose (after registration by the tax authorities of a notification about the beginning of the process), a corresponding announcement is printed in special media (Bulletin of State Registration). This is done twice (periodically - once a month). It should be taken into account that the notice is published from all participants, those of them who made the decision last or who were assigned such a responsibility by others.

Conclusion of a connection agreement, inventory and transfer of property

In cases provided for by law, a merger agreement is required, which regulates all the conditions of the reorganization, including its procedure and consequences. To carry out the inventory, a special commission is formed, which conducts it and prepares the relevant documents.

The reconciliation of settlements with the tax authorities of the reorganization participants and other necessary actions are carried out. These activities may precede the notification of the Federal Tax Service and interested parties about the reorganization of companies. In addition, a deed of transfer , according to which the assets and liabilities of the acquired persons are alienated to the acquirer.

It is also necessary to note that, for example, in relation to an LLC, a rule has been established according to which it is required to hold a joint general meeting of the companies participating in the merger, where a decision must be made on making changes to the charter of the acquiring company, as provided for in the merger agreement, on the election of new members of the company's bodies. This stage does not stand out as independent, however, its existence must be taken into account.

State registration of changes in the information of the Unified State Register of Legal Entities on the reorganization that took place

As part of the implementation of this stage, it is necessary to take into account that final registration of the merger is allowed no earlier than the moment when the deadline for filing complaints against decisions on reorganization expires, which is 3 months from the date of entry into the Unified State Register of Legal Entities about the beginning of the procedure. In addition, at least 30 days must have passed from the date of the last publication.

To register please submit :

applications (form No. P16003 and form P13001);
accession agreement;
deed of transfer;
decision to increase the authorized capital, amend the charter of the acquiring entity;
changes to the charter;
document confirming payment of state duty;
application (form 14001, if changes need to be made regarding governing bodies, etc.);
other documents that may be required depending on the type of legal entity or the characteristics of its activities (for example, confirmation of changes in the issue of issue-grade securities, if any).

The period for state registration is no more than 5 working days. Traditionally, reorganization procedures are considered to be completed at this stage.

Solving personnel issues of enterprises

Equally important when implementing a merger are questions about the personnel of the merging organizations.

If possible, it is possible to transfer workers through dismissal and hiring of the acquiring company or on the basis of Art. 75 Labor Code of the Russian Federation.

Source: https://tr777.ru/reorganizatsiya-putem-prisoedineniya-ch/