Labor Code, N 197-FZ | Art. 74 Labor Code of the Russian Federation

Article 74 of the Labor Code of the Russian Federation. Changing the terms of the employment contract determined by the parties for reasons related to changes in organizational or technological conditions labor (current edition)

In the event that, for reasons related to changes in organizational or technological working conditions (changes in engineering and production technology, structural reorganization of production, other reasons), the terms of the employment contract determined by the parties cannot be saved, they can be changed at the initiative of the employer, with the exception of changes labor function worker.

The employer is obliged to notify the employee in writing not later than two months, unless otherwise provided by this Code.

If the employee does not agree to work under the new conditions, the employer is obliged in writing to offer him another job available to the employer (as vacant position or work corresponding to the qualifications of the employee, as well as a vacant lower position or lower paid job) that the employee can perform taking into account his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

In the absence of the specified work or the refusal of the employee from the proposed work employment contract is terminated in accordance with paragraph 7 of the first part of Article 77 of this Code.

In the event that the reasons specified in part one of this article may lead to the mass dismissal of employees, the employer, in order to save jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization and in the manner prescribed by Article 372 of this Code, to adopt local regulations , introduce part-time (shift) and (or) part-time working week for up to six months.

If the employee refuses to continue working part-time (shift) and (or) part-time working week, then the employment contract is terminated in accordance with clause 2 of part one of Article 81 of this Code. At the same time, the employee is provided with appropriate guarantees and compensation.

Cancellation of the part-time (shift) and (or) part-time working week regime earlier than the period for which they were established is carried out by the employer, taking into account the opinion of the elected body of the primary trade union organization.

Changes in the terms of the employment contract determined by the parties, introduced in accordance with this article, should not worsen the position of the employee in comparison with the established collective agreement, agreements.

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Commentary on Art. 74 Labor Code of the Russian Federation

1. In accordance with part 1 of the commented article, the employer has the right, in connection with changes in the organizational or technological working conditions in the organization, to unilaterally change the terms of the employment contract, determined by the parties at its conclusion, with the exception of changing the labor function of the employee.

Since the commented article links the possibility of changing (at the initiative of the employer) the terms of the employment contract determined by the parties with strictly defined reasons, the employer is obliged to provide evidence confirming that such a change was the result of changes in the organization of labor or in the organization of production (for example, changes in equipment and production technology , improvement of jobs on the basis of their certification, structural reorganization of production) and did not worsen the position of the employee in comparison with the terms of the collective agreement, agreement. In the absence of such evidence, a change at the initiative of the employer of the terms of the employment contract stipulated by the parties cannot be recognized as legal (see clause 21 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2).

2. The employer is obliged to notify the employee in advance about the forthcoming change in the terms of the employment contract determined by the parties, as well as about the reasons that necessitated such changes, no later than two months before their introduction. Notice must be made in writing.

If the previous terms of the employment contract cannot be maintained, and the employee does not agree to continue working under the new conditions, the employer is obliged to offer him in writing another job he has available that corresponds to his qualifications and state of health. If there is no such job, the employer is obliged to offer the employee an existing vacant lower position or a lower paid job that the employee can perform in accordance with his qualifications and state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. Thus, it is understood that the employer is obliged in this situation to offer the employee appropriate vacancies not only directly in the organization in which the employee is employed, but also in its structural divisions, if they are located in the same area. If there are vacancies in structural divisions located in other localities (for example, in a branch or representative office of an organization), the employer is obliged to offer them if this is provided for by the collective agreement, agreements, labor contract (see also comments to paragraph 2 of article 81 ).

If the employer does not have an appropriate job, as well as if the employee refuses another job offered to him, the employment contract with him is terminated on this basis (see comments to Article 77). Upon dismissal of employees on this basis, they are paid severance pay in the amount of a two-week average salary (part 3 of article 178 of the Labor Code).

In the event of a dispute about the legality of terminating the employment contract, the employer is obliged to prove the impossibility of maintaining its previous conditions. If this circumstance is proven, but the employee is dismissed under paragraph 7 of Art. 77 of the Labor Code, without two months' notice of a change in the terms of the employment contract, the court, when considering a dispute, according to established judicial practice, may change the date of dismissal in such a way that labor Relations were terminated on the expiration date of the two-month period. If the employee was warned about changes in the terms of the employment contract, but dismissed due to the introduction of new working conditions before the expiration of the two-month period, the court may change the date of dismissal, taking into account the time remaining before the expiration of the specified period.

During the period for which the employment contract has been extended due to a change in the date of its termination, the employee must be reimbursed for his lost earnings.

3. Part 5 of the commented article establishes a special procedure for changing the terms of an employment contract at the initiative of the employer in cases where changes in organizational or technological working conditions may lead to mass dismissal of workers.

The criteria for mass layoffs are determined in industry and (or) territorial agreements (part 1 of article 82 of the Labor Code).

When developing them, one can use - taking into account the territorial and sectoral features of the development of the economy and the level of unemployment in the region - the criteria for mass layoffs established by Decree of the Government of the Russian Federation of 05.02.1993 N 99 "On the organization of work to promote employment in conditions of mass layoffs".

In accordance with it, the main criteria for mass dismissal are indicators of the number of dismissed employees in connection with the liquidation of organizations or a reduction in the number or staff of employees for a certain calendar period. These include:

a) liquidation of an organization of any organizational and legal form with a staff of 15 or more people;

b) reduction in the number or staff of the organization's employees:

50 or more people within 30 calendar days;

200 or more people within 60 calendar days;

500 or more people within 90 calendar days;

c) dismissal of employees with a number of 1% of the total number of employees due to the liquidation of the organization or reduction in the number or staff within 30 calendar days in regions with a total number of employees less than 5,000 people.

As examples of sectoral agreements that establish criteria for the mass dismissal of workers, one can cite: Industry Tariff Agreement for Organizations of the Chemical, Petrochemical, Biotechnological and Chemical-Pharmaceutical Industry for 2012-2014; Industry agreement on bodies and organizations Federal Service state statistics for 2012 - 2014; Industry agreement by organization timber industry complex Russian Federation for 2012 - 2014.

Judicial practice under Article 74 of the Labor Code of the Russian Federation:

Decision of the Supreme Court: Determination N 78-KG17-52, Judicial Collegium for Civil Cases, cassation
In resolving the dispute, the court of first instance came to the conclusion that the employer (Rossiya Airlines JSC) had the right, on its own initiative, to change the terms of employment contracts with employees determined by the parties in compliance with the conditions and procedure provided for in Article 74 of the Labor Code of the Russian Federation, and also the requirements of part 5 of article 135 of the Labor Code of the Russian Federation on the inadmissibility of worsening wage conditions in comparison with those established by labor legislation ...
Decision of the Supreme Court: Decree N 45-AD17-7, Judicial Collegium for Administrative Cases, supervision
Under such circumstances, the conclusion officials of the Inspectorate and courts to change by the institution unilaterally the labor function of employees in violation of the requirements of Articles 57, 74 of the Labor Code of the Russian Federation is unreasonable administrative offenses. No other violations were imputed to the institution ...
Decision of the Supreme Court: Determination N 5-KG12-64, Judicial Collegium for Civil Cases, cassation
After the plaintiff refused to change the terms of the employment contract in accordance with Art. 74 of the Labor Code of the Russian Federation, the employer did not dismiss her due to her refusal to work in the changed conditions, and the work of the plaintiff continued on the terms of the employment contract previously concluded with her ...

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ST 74 of the Labor Code of the Russian Federation

The employer is obliged to notify the employee in writing about upcoming changes in the terms of the employment contract determined by the parties, as well as about the reasons that necessitated such changes, at least two months in advance, unless otherwise provided by this Code.

If the employee does not agree to work in the new conditions, the employer is obliged in writing to offer him another job available to the employer (both a vacant position or a job 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 status. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

In the absence of the specified work or the employee's refusal of the proposed work, the employment contract is terminated in accordance with.

In the event that the reasons specified in part one of this article may lead to the mass dismissal of employees, the employer, in order to save jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization and in the manner established for the adoption of local regulations, to introduce a regime part-time work (shift) and (or) part-time work week for up to six months.

If the employee refuses to continue working part-time (shift) and (or) part-time work week, then the employment contract is terminated in accordance with. At the same time, the employee is provided with appropriate guarantees and compensation.

Commentary on Art. 74 of the Labor Code of the Russian Federation

1. The commented article interprets one of the types of transfers considered in - when the reason that led to the change in one or more conditions of the employment contract was changes in organizational or technological working conditions. At the same time, it is assumed that the labor function of the employee, defined in the employment contract, remains unchanged.

2. In its most general form, technology is understood as a system of tools and machines, as well as the methods of their application and functioning. Consequently, a change in the technological conditions of labor is expressed in the introduction of new tools, machines, as well as in a change in the processes of their operation.

The organization of labor is a complex and multidimensional category. At least two aspects of the organization of labor can be distinguished: 1) since human labor as an object legal regulation is social in nature, it is carried out in interaction with other people; 2) social labor implies a monetary value, therefore, the organization of labor can be understood as the streamlining of relations between people in the process of their joint labor activity, as well as the organization of wages.

Thus, the organization of labor involves the organization of the regime of work and rest of workers, their interaction in the labor process, the management of the labor process, its regulation, accounting, forms and systems. wages and so on. Accordingly, under change organizational conditions labor can be understood as a change in these and other similar factors, within the framework of which labor activity worker.

Technological and organizational changes may result in changes in the terms of the employment contract, while the employee's labor function remains the same. Since the basis for applying the rules established by the commented article 74 of the Labor Code of the Russian Federation are the specific circumstances determined by this article, in the event of a dispute, the employer must prove the existence of these circumstances, i.e. changes in organizational or technological working conditions. Otherwise, the actions of the employer aimed at changing the terms of the employment contract will be declared illegal.

In this regard, it must be borne in mind that, based on Art. 56 of the Code of Civil Procedure, 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 the result of changes in organizational or technological working conditions, for example, changes in equipment and production technology, improvement of jobs based on their certification, structural reorganization of production, and did not worsen the position of the employee in comparison with the terms of the collective agreement, agreement. In the absence of such evidence, the termination of the employment contract or the change in the terms of the employment contract determined by the parties cannot be recognized as legal (clause 21 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation").

3. It is assumed that the change in the terms of the employment contract, which occurs as a result of changes in organizational and technological working conditions, is carried out at the initiative of the employer, therefore the employer is obliged to notify the employee of this in writing no later than two months before their introduction ().

The legislator does not specify the procedure for notifying an employee of a change in the terms of an employment contract. In practice, it may be recommended to issue an order (instruction) of the head of the organization or other competent person on the transition to new working conditions, with which the employee must be familiarized against receipt no later than the period specified in the law.

Employer - individual is obliged to notify the employee in writing about the change in the essential terms of the employment contract at least 14 calendar days in advance (see to it).

The employer - a religious organization has the right to make changes to the content of the employment contract, subject to a written warning of this to the employee at least seven calendar days before their introduction (see to it).

4. If the employee refuses to continue working in the new conditions, the employer is obliged in writing to offer him another job available in the organization that corresponds to his qualifications and state of health, and in the absence of such, any other work that the employee can perform taking into account his qualifications and condition health.

The legislator does not establish the time limits within which the employer must offer the employee another job in the organization, as well as the specific form in which such an offer can be made. As one of the options for solving the problem, it can be recommended, together with the order on the upcoming change in the essential terms of the employment contract, to present the employee with a list of all vacancies available in the organization as an annex to the order. The employee, having familiarized himself with the order and the list of works offered to him against receipt, can at the same time express his will by agreeing to be transferred to any job corresponding to his qualifications and state of health, or refusing such a transfer.

If the employee agreed with the transfer to another job available in the organization, such a transfer is formalized by an order (instruction) and an additional agreement to the employment contract indicating in it the new conditions that are included in the employment contract.

In the absence of the specified work or if the employee refuses to be transferred to another job, the employment contract with him is terminated in accordance with.

As follows from the commented article 74 of the Labor Code of the Russian Federation, the employer is obliged by law to offer the employee the vacancies he has in the given area. The employer is obliged to offer vacancies in other localities if it is provided for by the collective agreement, agreements or labor contract. At the same time, the employer has the right to offer any vacancy to the released employees, regardless of its location.

5. A change in the organizational or technological working conditions may lead to a change in the terms of the employment contract not for one employee, but for the whole group.

One of the options for solving the problems arising in connection with this is formulated by the legislator in the commented article. If changes in organizational or technological working conditions may lead to mass dismissal of workers, the employer, in order to save jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization, to introduce a part-time regime for up to six months.

The condition on the length of working time is one of the essential working conditions. Therefore, the introduction of part-time work is allowed only with the consent of each employee. The employee can express his will by familiarizing himself with the relevant order (instruction) of the employer. At the same time, since the establishment of part-time work is not permanent, it is not advisable to draw up an additional agreement attached to the employment contract that defines this condition. Additional agreement possible if the employer and employee agree that the latter's part-time work will be permanent.

If the employee refuses to continue working on these conditions, the employment contract is terminated with the provision of appropriate guarantees and compensations to the employee (see Art. 81, Labor Code of the Russian Federation and commentary to them).

In accordance with the Regulations on the organization of work to promote employment in the conditions of mass release, approved. Decree of the Council of Ministers of the Russian Federation of February 5, 1993 N 99, the main criteria for mass layoffs are the indicators of the number of dismissed employees in connection with the liquidation of the organization or the reduction in the number or staff of employees for a certain calendar period.

At present, the criteria for mass layoffs are determined in industry and (or) territorial agreements, therefore, the rules provided for by the said Regulations apply only if there are no relevant provisions in the agreements (see also the commentary to it).

For the procedure for taking into account the opinion of the elected body of the primary trade union organization, see the commentary to it.

6. The rules of parts 5 and 6 of the commented article 74 of the Labor Code of the Russian Federation are not universal in nature: a) their application is the right, but not the obligation of the employer; b) they are applied in cases of mass dismissal of workers; c) they are of a temporary nature, since they are applied “in order to preserve jobs” (i.e. it is assumed that the circumstances that led to the reduction in working hours are of a transitory nature and after their elimination, employees will be assigned a working time regime stipulated by the employment contract) .

7. The Labor Code proceeds from the unconditional recognition of the fact that changes in working conditions are always carried out at the initiative of the employer. Therefore, it is established that changes in the terms of the employment contract cannot be introduced that worsen the position of the employee in comparison with the terms of the collective agreement, agreement (part 8 of the commented article). In addition, local regulations, providing for the introduction, replacement and revision of labor standards, are adopted by the employer, taking into account the opinion of the representative body of employees, and employees must be notified of the introduction of new labor standards no later than two months in advance (see also the commentary to it).

Thus, new working conditions, entailing a change in the employment contract, can be introduced solely by the employer only if they do not worsen the position of the employee in comparison with the terms of the collective agreement (agreement); otherwise, they can be introduced if the content of the collective agreement (agreement) is revised accordingly, and, if necessary, the opinion of the representative body of employees is taken into account.

At the same time, a change in the terms of an employment contract may be the result of objective factors, for example, a change in the market commodity markets on which the employer operates, entails the need to reform the applied technologies or the organization of labor. In such cases, the will of the employer is not aimed at changing the terms of the employment contract, but at adapting it to new economic realities through the reorganization of production in order to ensure its existence as an economic entity. Since the employer can make changes to the content of the employment contract, provided that appropriate changes are made to the collective agreement or agreement (which is possible only if there is a counter expression of will of the other party (parties) in the contract or agreement), in the absence of such an expression of will, the implementation of Art. 74 of the Labor Code of the Russian Federation becomes impossible. In this case, the employer is forced either to amend the employment contract on the basis of general rules about transfers to another permanent job(see Art. Art., Labor Code of the Russian Federation and commentary to them), i.e. with the consent of the employee; or apply the rules on temporary transfers in connection with the occurrence of circumstances of an extraordinary nature (see to it); either apply statutory legal mechanisms for terminating an employment contract (see also the commentary to it).

8. The legislator abandoned the earlier applied in Part 3 of Art. 25 of the Labor Code of the term "changes in essential working conditions", replacing it with the concept of "changes in the terms of an employment contract". Based on this, they do not matter and do not entail any legal consequences arbitrarily serious changes in working conditions, if they are not related to a change in the content of the employment contract. For example, the installation of new equipment, computers, equipment is not always associated with a change in the labor function (specialty, profession, qualification or position), salary, working hours or other conditions established by the employment contract, but this may lead to significant changes in the actual working conditions of the worker.

Since the content of the employment contract does not change in this case, such changes can be made by the employer without observing the rules on transferring to another job, including the rules established by the commented article. In this case, the employee who does not want to continue working in the new working conditions retains the right to terminate the employment contract on his own initiative (see th to it), and the employer has the opportunity to terminate the employment contract with the employee if there are appropriate grounds for this (see paragraph article 81 of the Labor Code of the Russian Federation and commentary to it).

New edition Art. 74 Labor Code of the Russian Federation

In the absence of the specified work or the employee's refusal of the proposed work, the employment contract is terminated in accordance with.

In the event that the reasons specified in part one of this article may lead to the mass dismissal of employees, the employer, in order to save jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization and in the manner established for the adoption of local regulations, to introduce a regime part-time work (shift) and (or) part-time work week for up to six months.

Commentary on Article 74 of the Labor Code of the Russian Federation

Special consideration deserves the procedure for changing previously defined terms of an employment contract on the basis provided for in Article 74 of the Labor Code of the Russian Federation. As follows from this article, the need to change the terms of an employment contract may be due to a change in organizational or technological working conditions.

These changes may affect the equipment and production technologies used by the employer, be expressed in the structural reorganization of production, for example:

changes in the technology of work, due to the tightening of requirements for the quality of products manufactured by the enterprise;

changes in the technical equipment of the enterprise (relevant structural divisions) due to the need to improve it due to wear and tear, obsolescence of equipment, etc.;

changes in the organization of workplaces based on the results of their certification;

changes in organizational structure enterprises due to the introduction of a new (updated) staffing table.

The initiative in changing the terms of the employment contract in this case belongs to the employer. However - we emphasize - these changes cannot affect the conditions that determine the labor function of the employee. We note further that a change in the organizational and technological working conditions may entail a change in the terms of the employment contract for this employee, in accordance with which the following are determined:

place of work ( structural subdivision or work site, if the relevant essential condition was previously included in the employment contract);

rights and obligations (powers) of the employee;

characteristics of working conditions, including those entailing the establishment (cancellation of previously established) compensations and benefits for this employee for work in difficult, harmful and (or) dangerous conditions;

the regime of work and rest established for the employee;

terms of remuneration for the worker.

Article 74 of the Labor Code of the Russian Federation contains a number of requirements for changing the terms of an employment contract on the specified basis, the preliminary fulfillment of which by the employer is mandatory. So, the employee must be notified of the entry into force of the relevant changes no later than two months before the expected date of their introduction by the employer in writing and against signature before the expected date of their introduction ().

In the event that the employee, for one reason or another, does not agree to continue working in the new conditions, the employer is obliged to immediately offer him (also in writing and against signature) another job available in the area (vacant position) corresponding to the state of health of the employee, which he can carry out taking into account the available qualifications. Such offers may be sent to the employee in the form of a list of vacancies.

In the absence of the specified work, as well as in the event that the employee refuses the work offered to him (taking into account the foregoing), the employment contract with him is terminated in the manner and on the grounds provided for.

Another commentary on Art. 74 of the Labor Code of the Russian Federation

1. Article 74 interprets one of the types of transfers discussed in - when the reason that led to the change in one or more conditions of the employment contract was changes in organizational or technological working conditions. At the same time, it is assumed that the labor function of the employee, defined in the employment contract, remains unchanged.

2. For market economy the high dynamism of those organizational and technological conditions in which labor is applied is characteristic; therefore the legislator directs Special attention on the legal consequences that occur as a result of a change in such conditions.

In its most general form, technology is understood as a system of tools and machines, as well as the methods of their application and functioning. Consequently, a change in the technological conditions of labor is expressed in the introduction of new tools, machines, as well as in a change in the processes of their operation.

The organization of labor is a complex and multidimensional category. There are at least two aspects of labor organization. First, since human labor as an object of legal regulation is of a social nature, it is carried out in interaction with other people; secondly, social labor presupposes its monetary value. Therefore, the organization of labor can be understood as the streamlining of relations between people in the process of their joint labor activity, as well as the organization of wages. In this regard, the organization of labor involves the organization of the regime of work and rest of workers, their interaction in the labor process, the management of the labor process, its regulation, accounting, forms and systems of wages, etc. Thus, a change in organizational working conditions can be understood as a change in these and other similar factors within which the worker's labor activity is carried out.

Changes of a technological and organizational nature may result in a change in the essential conditions of an employment contract, while the employee's labor function remains the same. Since the basis for the application of the rules established by Art. 74 of the Labor Code are specific circumstances defined by this article; in the event of a dispute, the employer must prove the existence of these circumstances, i.e. changes in organizational or technological working conditions. Otherwise, the actions of the employer aimed at changing the essential terms of the employment contract will be declared illegal.

In this regard, it must be borne in mind that, based on Art. 56 of the Code of Civil Procedure, 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 the result of changes in organizational or technological working conditions, for example, changes in equipment and production technology, improvement of jobs based on their certification, structural reorganization of production, and did not worsen the position of the employee in comparison with the terms of the collective agreement, agreement. In the absence of such evidence, the termination of the employment contract due to or the change in the terms of the employment contract determined by the parties cannot be recognized as legal (paragraph 21 of the Resolution of the Plenum Supreme Court RF dated March 17, 2004 N 2).

3. It is assumed that the change in the terms of the employment contract, which occurs as a result of changes in the organizational and technological working conditions, is carried out at the initiative of the employer, therefore the employer is obliged to notify the employee in writing no later than two months before their introduction (part 2 of article 74 TC RF).

The employer - an individual is obliged to notify the employee in writing of a change in the essential terms of the employment contract at least 14 calendar days in advance (see).

The legislator does not establish the terms during which the employer must offer the employee another job in the organization, as well as the specific form in which such an offer can be made. As one of the options for solving the problem, it can be recommended, together with the order on the upcoming change in the essential terms of the employment contract, to present the employee, as an annex to the order, with a list of all vacancies available in the organization. The employee, having familiarized himself with the order and the list of works offered to him against receipt, can at the same time express his will - by agreeing to a transfer to any job corresponding to his qualifications and state of health, or refusing such a transfer.

If the employee agreed with the transfer to another job available in the organization, such a transfer is formalized by an order (instruction) and an additional agreement to the employment contract, indicating in it the new conditions that are included in the current employment contract.

In the absence of the specified work or if the employee refuses to be transferred to another job, the employment contract with him is terminated in accordance with paragraph 7 of Art. 77 of the Labor Code of the Russian Federation.

As follows from Art. 74, the employer is obliged by law to offer the employee the vacancies he has in the given locality. The employer is obligated to offer vacancies in other localities if this is provided for by the collective agreement, agreements or employment contract. At the same time, the employer has the right to offer any vacancy to the released employees, regardless of its location.

5. A change in organizational or technological working conditions may lead to a change in the terms of an employment contract not for one, but for a group of employees.

One of the options for solving the problems arising in connection with this is formulated by the legislator. By virtue of Art. 74 of the Labor Code of the Russian Federation, if changes in organizational or technological working conditions may lead to mass dismissal of workers, the employer, in order to save jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization, to introduce a part-time regime for up to six months.

The condition on the length of working time is one of the essential working conditions, therefore the introduction of part-time work is allowed only with the consent of each employee. The employee can express his will by familiarizing himself with the relevant order (instruction) of the employer. At the same time, since the establishment of part-time work is not permanent, it is not advisable to draw up an additional agreement attached to the employment contract that defines this condition. An additional agreement is possible if the employer and the employee reach an agreement that the latter's part-time work will be permanent.

According to the Regulations on the organization of work to promote employment in conditions of mass layoffs, approved by Resolution of the Council of Ministers of the Russian Federation of February 5, 1993 N 99, the main criteria for mass layoffs are the indicators of the number of dismissed workers in connection with the liquidation of the organization or the reduction in the number or staff of workers for a certain calendar period. These include:

a) liquidation of an enterprise of any organizational and legal form with a staff of 15 or more people;

b) reduction in the number or staff of employees of the enterprise in the amount of:

50 or more people within 30 calendar days;

200 or more people within 60 calendar days;

500 or more people within 90 calendar days;

c) dismissal of employees in the amount of 1% of the total number of employees due to the liquidation of enterprises or reduction in the number or staff within 30 calendar days in regions with a total number of employees less than 5 thousand people.

Currently, the criteria for mass layoffs are defined in industry and/or territorial agreements, so the cited rules apply only if there are no corresponding provisions in these agreements (see).

For the procedure for taking into account the opinion of the elected body of the primary trade union organization, see the commentary to them.

6. From the content of the previous paragraph, it is obvious that the rules of Parts 5 and 6 of Art. 74 of the Labor Code of the Russian Federation are not universal in nature, since: a) their application is the right, but not the obligation of the employer; b) they are applied in cases of mass dismissal of workers; c) are temporary in nature, since they are used "in order to save jobs" (i.e. it is assumed that the circumstances that led to the reduction in working hours are of a transitory nature and after their elimination, employees will be set a working time regime due to labor agreement).

In the absence of at least one of the formulated conditions, these rules do not apply and the released workers can be dismissed according to the rules of paragraph 2 of Art. 81 of the Labor Code of the Russian Federation with the provision of appropriate guarantees and compensations, in particular, in compliance with the rules interpreting preemptive right to leave at work with a reduction in the number or staff of the organization's employees.

7. The legislator proceeds from the unconditional recognition of the fact that changes in working conditions are always carried out at the initiative of the employer; therefore, it is established that changes in the terms of the employment contract cannot be introduced that worsen the position of the employee in comparison with the terms of the collective agreement, agreement (part 8 of article 74 of the Labor Code of the Russian Federation). In addition, it must be borne in mind that local regulations providing for the introduction, replacement and revision of labor standards are adopted by the employer, taking into account the opinion of the representative body of employees, and employees must be notified of the introduction of new labor standards no later than two months (see).

Thus, new working conditions, entailing a change in the employment contract, can be introduced solely by the employer only on the condition that they do not worsen the position of the employee in comparison with the terms of the collective agreement (agreement); otherwise, they can be introduced only if the content of the collective agreement (agreement) is revised accordingly, and, if necessary, the opinion of the workers' representative body is taken into account.

At the same time, a change in the terms of an employment contract may be the result of objectively acting factors, for example, a change in the situation in the commodity markets in which the employer operates entails the need to reform the applied technologies or labor organization. In such cases, the will of the employer is not aimed at changing the terms of the employment contract, but at adapting it to new economic realities through the reorganization of production in order to ensure its existence as an economic entity. Since the employer can make changes to the content of the employment contract, provided that appropriate changes are made to the collective agreement or agreement (which is possible only if there is a counter expression of the will of the other party (parties) in the contract (agreement), in the absence of such an expression of will, the implementation of Article 74 of the Labor Code of the Russian Federation becomes impossible.In this case, the employer is forced to either amend the employment contract on the basis of the general rules on transfers to another permanent job (see Art. , and commentary to them), i.e. with the consent of the employee, or apply the rules on temporary transfers in connection with the onset of circumstances of an extraordinary nature (see); or apply the legal mechanisms established by law to terminate the employment contract (see).

8. The legislator abandoned the term “change of essential working conditions” (part 3 of article 25) previously used in the Labor Code, replacing it with the concept of changing the terms of an employment contract. Based on this, arbitrarily serious changes in working conditions do not matter and do not entail any legal consequences, if they are not related to a change in the content of the employment contract. For example, installation of new equipment, computers, accessories, etc. are not always associated with a change in the labor function (specialty, profession, qualification or position), the amount of wages, the duration or mode of working hours and other conditions established by the employment contract, but this may entail significant changes in the actual working conditions of the employee. Since the content of the employment contract does not change in this case, such changes can be made by the employer without observing the rules on transferring to another job, including the rules established by the commented article. In this case, the employee who does not want to continue working in the new working conditions retains the right to terminate the employment contract on his own initiative

In the absence of the specified work or the refusal of the employee from the proposed work, the employment contract is terminated in accordance with paragraph 7 of the first part of Article 77 of this Code.

In the event that the reasons specified in part one of this article may lead to the mass dismissal of employees, the employer, in order to save jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization and in the manner prescribed by Article 372 of this Code, to adopt local regulations , introduce a part-time (shift) and (or) part-time working week for up to six months.

Commentary on Article 74 of the Labor Code of the Russian Federation

1. The employer has the right to unilaterally change the terms of the employment contract if there is a combination of the following conditions: 1) there have been changes in organizational or technological working conditions, i.e. changes have been made to the technique and technology of production, etc.; 2) in connection with this, the previous terms of the employment contract cannot be retained; 3) changes in the terms of the employment contract do not apply to: profession, specialty, position, qualification, specific type of assigned work; 4) the employee is notified by the employer in writing no later than 2 months. about the forthcoming change in the terms of the employment contract; 5) the reasons for changing the terms of the employment contract are given to the employee; 6) changes in the terms of the employment contract do not worsen the position of the employee in comparison with the collective agreement, agreements.

2. If the employee does not agree to change the terms of the employment contract, the employer is obliged to offer him another vacant job in writing. If the employee agrees to perform other work, then appropriate changes in the conditions are made to his employment contract by agreement of the parties.

3. The employer is obliged to offer vacancies in other areas, if it is provided for by the collective agreement, agreements, labor contract.

4. In the absence of the specified work or the refusal of the employee from the proposed work, the employment contract is terminated in accordance with paragraph 7 of part 1 of Art. 77 TK.

5. When introducing a part-time (shift) and (or) part-time working week regime, as well as when production is suspended, the employer is obliged to notify the employment service authorities of this in writing within 3 working days after the decision to carry out the relevant measures (Article 25 of the Law of the Russian Federation of April 19, 1991 N 1032-1 "On Employment in the Russian Federation").

In the event that the reasons specified in part one of this article may lead to the mass dismissal of employees, the employer, in order to save jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization and in the manner prescribed by Article 372 of this Code, to adopt local regulations , introduce a part-time (shift) and (or) part-time working week for up to six months.

Comments to Art. 74 Labor Code of the Russian Federation

3. The employer is obliged to offer vacancies in other areas, if it is provided for by the collective agreement, agreements, labor contract.

4. In the absence of the specified work or the refusal of the employee from the proposed work, the employment contract is terminated in accordance with paragraph 7 of part 1 of Art. 77 TK.