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Change of the conditions of the employment contract defined by the parties for the reasons connected with change of organizational or technological working conditions

General provisions TK the Russian Federation provide change of conditions of the employment contract only under the agreement of parties, except for the cases provided TK the Russian Federation (item 72 TK the Russian Federation).

In TK the Russian Federations exist exceptions by which the notifying order of change of conditions of the employment contract is provided.

change of the conditions of the employment contract defined by the parties probably not only while translating the worker on other permanent job, but also owing to change of organizational or technological working conditions of workers. In TK the Russian Federation is devoted by the given relation to item 74 gl. 12.

According to specified article in a case, when for the reasons connected with change of organizational or technological working conditions (change in the technician and the "know-how", structural reorganisation of manufacture, other reasons), the conditions of the employment contract defined by the parties cannot be kept, is supposed their change at the initiative of the employer, except for change of labour function of the worker.

thus, item 74 TK the Russian Federation is provided possibility of change of conditions of the employment contract at the initiative of the employer (except for labour function of the worker) for the reasons connected with change of organizational or technological working conditions.

changes are possible concerning any conditions of the employment contract, including concerning wages, but in any case change of labour function of the worker [119] is not supposed.

M. The cousin notices, that the given norm is applied, only if at the enterprise have changed technics, the organisation of workplaces, work, the "know-how", the enterprise is translated on a night operating mode and so on. In other cases the employer has no right to change essential working conditions of the worker [120] [121] .

As specifies O.Oznobihin, into number of organizational changes of working conditions can enter: changes in structure of management of the organisation; introduction of forms of the organisation of work (brigade, rent, contract); changes in organizational structure of the enterprise with loading redistribution on structural divisions and (or) on concrete posts - on - another it is structural reorganisation, and into number of technological changes of working conditions can enter: introduction of new "know-how"; introduction of new machine tools, units, mechanisms; working out of new kinds

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production; Introduction new or change of technical regulations.

the resulted list of the reasons of change of the organizational and technological working conditions, established in ch. 1 item 74 TK the Russian Federation, is opened. The specified changes can be caused and other reasons, for example, improvement of working conditions, introduction of new methods, development of new technologies, modernisation and equipment replacement, perfection of structure of management or the organisation of workplaces, etc.

the Part 1 items 74 TK the Russian Federation, providing, in an exception of the general rule about change of the conditions of the employment contract defined by the parties only under the agreement of parties (item 72 TK the Russian Federation), possibility of unilateral change of such conditions the employer, at the same time limits the granted right to cases of impossibility of preservation of former conditions owing to changes of organizational or technological working conditions.

Simultaneously the legislator in the item 74 TK the Russian Federations are established the guarantees given to the worker in case of unilateral change by the employer of conditions of the employment contract: an interdiction of change of labour function of the worker (ch. 1 items 74 TK the Russian Federation); definition of the minimum two-month term of the notice of the worker about forthcoming changes and about the reasons, their caused (ch. 2 items 74 TK the Russian Federation); a duty of the employer in case of disagreement of the worker to work in new conditions to offer it in writing other available work which the worker can carry out taking into account a condition of its health (ch. 3 items 74 TK the Russian Federation); an interdiction of deterioration of position of the worker in comparison with the established collective agreement, the agreement at change of conditions of the employment contract (ch. 8 items 74 TK the Russian Federation).

Such legal regulation has the purpose to provide to the worker possibility to continue work at the same employer or to give to the worker time, sufficient for decision-making on dismissal and search of new work.

About forthcoming changes of the conditions of the employment contract defined by the parties, and also about the reasons which have caused of such changes, the employer is obliged to notify the worker in writing not later than two months if other is not provided TK the Russian Federation.

as fairly marks O.Fedorova [122] , specified in item 74 TK the Russian Federation notice term - the general, except for the cases provided by the Labour code of the Russian Federation, other federal acts. In particular, the employer - the physical person is obliged to direct to the worker the corresponding prevention not less than for two weeks (item 306 TK the Russian Federation), and the employer - the religious organisation not less than for seven calendar days (item 344 TK the Russian Federation).

If the worker does not agree to work in new conditions the employer is obliged to offer in writing to it other work available for the employer (as a vacant post or the work corresponding to qualification of the worker, and a vacant subordinate post or nizheoplachivaemuju work) which the worker can carry out taking into account its state of health. Thus the employer is obliged to offer the worker all vacancies meeting specified requirements which are available for it in given district. To offer vacancies in other districts the employer it is obliged, if it is provided by the collective agreement, agreements, the employment contract.

in the absence of the specified work or refusal of the worker of the offered work the employment contract stops according to point 7 of a part of first article 77 TK the Russian Federation.

Thus, the employment contract can be ceased in connection with refusal of the worker of work continuation in connection with change of the conditions of the employment contract defined by the parties (item 7 ch. 1 items 77 TK the Russian Federation) only in two cases:) absence of work, the requirement to which are established ch. 3 items 74 TK the Russian Federation; refusal of the worker of the work offered it corresponding to specified requirements.

as item 74 TK the Russian Federation connects change possibility (at the initiative of the employer) the conditions of the employment contract defined by the parties with strictly certain reasons as has specified Plenum of the Supreme Court of the Russian Federation in the decision from March, 17th, 2004 ╣ 2 źAbout application of the Labour code of the Russian Federation by vessels of the Russian Federation╗, the employer is obliged to present the proofs confirming, that such change was a consequence of changes in the organisation of work or in the manufacture organisation (for example, changes in the technician and the "know-how", perfection of workplaces on the basis of their certification, structural manufacture reorganisation) and did not worsen position of the worker in comparison with conditions of the collective agreement, the agreement. In the absence of such proofs at the initiative of the employer of the conditions of the employment contract caused by the parties it is impossible to recognise change lawful.

so, in definition of the Supreme Court of the Russian Federation from December, 3rd, 2007 ╣ 19-in 0734 [123] it is underlined, that in operating edition of the Labour code of the Russian Federation the employer is deprived the right unilaterally to change the conditions of the employment contract defined by the parties. In particular, dismissal of the worker under item 7 ch. 1 item 77 TK the Russian Federation can be made the employer only when there is an objective necessity to change a condition of the employment contract with the worker owing to impossibility of their preservation in a former kind, and the worker on it disagrees.

in each concrete case the employer should present that proof, that the working conditions defined by the employment contract objectively could not be kept.

so, in Appeal definition of the Moscow city court from July, 16th, 2012 ╣ 11-11952/2012 [124] it is specified, that change of organizational working conditions in connection with considerable reduction in demand for the realised goods, volume of a gain from realisation, etc. In this connection the post held by the claimant is renamed with salary reduction, contradicts the current legislation, the specified circumstances cannot be the basis for change of the conditions of the employment contract defined by the parties, including for reduction of the size of wages of the worker.

as marks T.J.Korshunova, at the permission of affairs under the claims following from application of item 74 TK TF and item 7 ch. 1 items 77 TK the Russian Federation, vessels should establish following legally significant circumstances: 1) whether the post of the worker is kept; 2) whether there were objective causes for change of the conditions of the employment contract concluded with the worker defined by the parties; 3) whether procedure of dismissal of the worker, established item 74 TK the Russian Federation is observed. However, as practice shows, courts at the permission of affairs not completely establish legally significant circumstances on business that leads to acceptance of the incorrect decisions striking the rights of workers [125] .

In a case when the reasons specified regarding first present article, can entail mass lay-offs of workers, the employer with a view of preservation of workplaces has the right taking into account opinion of elected body of the primary trade-union organisation and in an order established by article 372 TK the Russian Federation for acceptance of local normative acts, to enter a mode of the incomplete working day (change) and (or) incomplete working week for the term up to six months (ch. 5 items 74 TK the Russian Federation).

To number of such reasons changes in the technician and the "know-how", perfection of workplaces on the basis of their certification, structural reorganisation of manufacture, for example, concern. Their presence, and also causal relationship between them and introduction of incomplete working hours, in case of dispute occurrence, the employer (should prove item 21

decisions of Plenum of the Supreme Court of the Russian Federation from March, 17th, 2004 ╣ 2 źAbout application of the Labour code of the Russian Federation by vessels of the Russian Federation╗).

So, in session of the court it has been established, that the employer has made the decision on an establishment of a mode of incomplete working hours, in connection with reduction of flights, volumes of transportations, incomplete congestion of the enterprise during the winter period, with a view of bar of claim by lapse of time of mass lay-offs of workers and preservation of workplaces, in spite of the fact that according to the item 2 GK the Russian Federation enterprise is the independent activity carried out on the risk directed on regular reception of profit on using by property, sales of the goods, performance of works or rendering of services by the persons registered in this quality in a statutory order, hence, burden of adverse consequences, the person who was carrying out ground activity, instead of the worker of the given person bears. That is the employer has entered a mode of incomplete working hours to reduce the expenses at the expense of workers. Also in session of the court it is established, that actually there were no reasons reflected in the order for introduction of a mode of incomplete working hours as reduction of flights and volume of transportations, incomplete congestion of the airport during the winter period - has not occurred. Considering, that the heavy financial condition of the enterprise if it also was available, cannot be the reason of reduction of wages of workers in connection with absence of such basis in TK the Russian Federation, the court has come to conclusion, that actions of the employer are illegal [126] .

According to the author, position ch. 5 items 74 TK the Russian Federation strike at the rights of workers to fair wages. So with introduction of a mode of the incomplete working day (change) and (or) incomplete working week at workers the wages that goes to the contradiction with the guarantees fixed in ch at once decrease. 2 items 74 TK the Russian Federation about the notice on forthcoming changes of conditions of the employment contract not later than two months. Thus, the balance of the rights of employers and workers with an excess towards the rights of employers is broken.

If the worker refuses work continuation in a mode of the incomplete working day (change) and (or) incomplete working week the employment contract is terminated according to point 2 of a part of first article 81 TK the Russian Federation. Thus corresponding guarantees and indemnifications are given to the worker.

cancellation of a mode of the incomplete working day (change) and (or) incomplete working week before term on which they have been established, is made by the employer taking into account opinion of elected body of the primary trade-union organisation.

changes of the conditions of the employment contract defined by the parties, entered according to the present article, should not worsen position of the worker in comparison with the established collective agreement, agreements.

in earlier operating the Labour Code of the Russian Federation (the item 25) the similar norm according to which źin connection with changes in the manufacture and work organisation change of essential working conditions is supposed at work continuation on the same speciality, qualifications or posts╗ contained. It is a question of change of essential working conditions (systems and the sizes of a payment, privileges, an operating mode, an establishment or cancellation of incomplete working hours, combination of trades, change of categories and names of posts and others) in connection with changes in the manufacture and work organisation, at this continuation of work on the same speciality, qualification or a post.

the basic difference of specified norms TK the Russian Federation and the Labour Code of the Russian Federation consists that item 74 TK the Russian Federation regulates relations of the worker and the employer on change of the conditions of the employment contract defined by the parties, and item 25 the Labour Code of the Russian Federation - on change of essential working conditions. The volume of the given concepts is various. So, as change of working conditions it is understood not only change of conditions of the employment contract established by the parties, but also other working conditions of the worker defined by standard legal acts, the collective agreement, the agreement and even by local normative acts of the employer, that is established in a non-contractual order 1 .

TK the Russian Federation not casually allocates labour relations, adjustable items 74 TK the Russian Federation, in a special kind of labour relations. Specificity of the labour relations regulated by given article, consists that the employer has the right to change the conditions of employment contracts adjusted by the parties with workers, except for a condition about labour function, in case of approach of the circumstances defined by the law, namely events at the enterprise of organizational or technological changes of working conditions of workers. Relations of the parties of the employment contract, regulated by specified article, differ from relations of the worker and the employer on change of conditions of the employment contract as transfer into other permanent job at which the parties have the right to change any treaty provisions including a condition about labour function.

besides, change of the conditions of the employment contract defined by the parties in a context of item 74 TK the Russian Federation, unlike change of the employment contract within the limits of item 72.1 item, 72.2 and 57 TK the Russian Federation, consists also that it always means unilateral will on employment contract change only from the employer. Differently, the initiative of the employer expressed in the corresponding form on change of the working conditions defined by the parties in cases, statutory, generates change of the maintenance of the employment contract irrespective of will of the worker, otherwise speech would go about the agreement of the parties of the employment contract.

However, in the scientific literature meets also other judgements concerning the legal nature of change of the conditions of the employment contract defined by the parties. So, according to E.B.Hohlova, change of the conditions of the employment contract adjusted by the parties in case of change of organizational or technological working conditions will of the employer, and approach of the events specified in the law behind which the law recognises value of the juridical fact are a consequence not, namely: carrying out of actions for reorganisation of applied technologies, changes of the organisation of work, etc. źIn this case the initiative of the employer is directed not on izmenenie the working conditions of the worker defined by the parties, and on technical and organizational improvement of manufacture, change of working conditions of the worker is only one of collateral consequences of spent actions ╗. Thus it is not enough one approach of such event for change of the maintenance of labour legal relation, the difficult legal structure is necessary: change of working conditions and manufacture and presence of corresponding will of the worker. [127] Thus the consent of the worker which is necessary for receiving to the employer agrees ch. 2 items 74 TK the Russian Federation two months prior to forthcoming changes in working conditions, are necessary to give the chance for the worker to avoid the negative consequences connected with change of conditions of the employment contract: beforehand to find new work, to be translated for other work or all the same to remain to work on the same work, but with the changed conditions.

Proceeding from it one more feature of considered relations consists in specific consequences of disagreement of the worker on such "caused" changes. If at refusal of the worker on transfer into other permanent job at the initiative of the employer the worker comes under to restoration on former work in case of disagreement of the worker on work continuation in new conditions it agree item 74 TK the Russian Federation, and also at absence in the organisation of other work approaching for the worker the employment contract stops under item 7 of item 77 TK the Russian Federation. Thus, disagreement of the worker for work on new conditions at change of the conditions of the employment contract defined by the parties owing to change technological or organizational working conditions is the basis for transfer of the worker into other permanent job or its dismissal.

Thus, it is available differences of transfer into other permanent job and change of the conditions of the employment contract defined by the parties because of change of technological or organizational working conditions according to item 74 TK the Russian Federation.

it is possible to draw a conclusion, that change of the conditions of the employment contract defined by the parties according to item 74 TK the Russian Federation means unilateral change of the employment contract at the initiative of the employer, caused by technological or organizational changes of working conditions, at continuation of work of the worker on the same labour function, that is covers a special case of change of the employment contract.

it is necessary to notice, that representatives of business develop the various bills directed on change of the corresponding legislation.

So, there is a concept of change TK the Russian Federation prepared by the Russian union of industrialists and businessmen (further - RSPP), representing employers. Amendments in TK the Russian Federations offered

RSPP, simplify dismissal of workers and revision of employment contracts. The reasons the economic crisis, reduction in demand or manufacture modernisation can be. The given concept has been directed to the Government of the Russian Federation and the Russian tripartite commission (RTK) on regulation of sociolabor relations.

among the reasons, on which employers possibility unilaterally to terminate the employment contract is provided, it is crisis, slump in production, reduction in demand for production, introduction of new technologies, innovative ways and work methods.

the given amendments also provide mechanisms which will allow the employer to go through economic recession: Temporary transfer of the worker to other employer with a suspension of the basic employment contract, the simplified introduction of a time mode of incomplete working hours.

in RSPP consider, that at economic difficulties it should be easier to small-scale business on own initiative to dismiss workers.

it is obvious, that RSPP develop and advance the given offers exclusively in interests of employers as they expand possibilities of employers, striking thus the rights of workers.

it is necessary to agree with a position of Federation of independent trade unions of Russia (FNPR), negatively concerned offers RSPP. In our opinion, offers RSPP on amendment in TK the Russian Federation essentially restrain laws of master and servant of workers and are directed on possibility to save on payments to workers in crisis. And after all the businessman should bear risks of activity carried out by it.

Besides, in conditions of even more often arising economic crises, the employer searches for ways to bypass the legislative guarantees established, in particular, for workers at transfers for other work.

It is offered to limit application of item 74 TK the Russian Federation as organizational conditions can for the employer be changed always, including unlimited number of times owing to what stability of the employment contract decreases. Besides the employer, wishing to get rid of objectionable workers, often abuses the right (at any time to change organizational conditions), thus changes also conditions of employment contracts with workers, forcing them to leave. Item 74 TK gives unlimited possibilities to the employer to worsen the Russian Federation conditions of employment contracts with workers that leads to social intensity and the Russian Federation contradicts a problem of achievement of the optimum coordination of observance of interests of the parties of the labour relations, fixed in item 1 TK.

the Author offers to add ch. 1 items 74 TK the Russian Federation following words: źthe Specified changes cannot be made more often an once within a calendar year╗.

it is offered to add ch. 5 items 74 TK the Russian Federation: ź With a payment of workers for first two months not below average earnings of workers before introduction of a mode of the incomplete working day (change) and (or) incomplete working week ╗.

the Author comes to conclusion, that change of conditions of the employment contract should be divided into kinds:

) constant or temporary transfer;

transfer together with the employer in other district;

temporary transfer to other employer (for sportsmen and the workers directed to other employer under the contract on granting of work of workers (personnel);

) change of the conditions of the employment contract defined by the parties on

to the initiative of the employer for the reasons connected with change

of organizational or technological working conditions (item 74 TK the Russian Federation);

change of the conditions of the employment contract defined by the parties under the agreement of its parties.

the Author classification of kinds of change of conditions of the employment contract depending on number of the persons who have shown on it the initiative is offered:

1) unilaterally - time transfers at the initiative of the employer, obligatory for the worker (item 72.2 TK the Russian Federation); change of the conditions of the employment contract defined by the parties for the reasons of organizational or technological character (item 74 TK the Russian Federation);

2) in a bilateral order (under the agreement of parties) - time and constant transfers; change of the conditions of the employment contract defined by the parties; transfer together with the employer in other district;

3) in a tripartite order - transfers of sportsmen (item 348.4 TK the Russian Federation), transfers of workers temporarily directed to other employer under the contract on granting of work of workers (personnel) (gl. 53.1 TK the Russian Federation).

It is possible to draw a conclusion on decrease now guarantees of stability of the employment contract. Aggression of market relations forces the employer to search for ways of economy of the means by application of a various sort of change of conditions of the employment contract. Representatives of business lobby the bills directed on change of the corresponding legislation in interests of employers.


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A source: Prokofiev Michael Aleksandrovich. CHANGE the EMPLOYMENT CONTRACT CONDITION: LEGAL REGULATION PROBLEMS. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2017. 2017

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