Change of a labor contract under an initiative of the employer: payment and working hours
According to clause 2 of the Labor code of the Russian Federation (LC the Russian Federation) one of main principles of legal regulation of labor attitudes in the Russian Federation is a duty of the parties of the labor contract to observe conditions of the concluded contract.
Conditions of a payment of the worker are necessarily joined in the labor contract by virtue of clause 57 LC of the Russian Federation. Thus the sizes of such fixed payments as the salary or the tariff rate should be specified directly in the text of the labor contract.
Meanwhile businessmen frequently have an objective necessity to change existing conditions of a payment of workers in interests of their business.
Such necessity is caused by the different reasons. For example, it can be caused by crisis phenomena in business, such as difficulties with realization of the goods, works or services, decrease in profitableness and other negative processes. Under such circumstances preservation of conditions of a payment in a constant kind strongly complicates promotion to an output from crisis or at all creates threat to the existence of the enterprise. Finally it can damage both to the businessman, and workers. At the same time change of conditions of a payment can be demanded and in a situation, when business functions quite safely to make its even more successful.
Anyhow, the labor legislation of the Russian Federation gives to the employer the right under its initiative to change conditions of a payment of workers. In this connection a part the Russian Federation first clause 74 LC contains following norm. In case when for the reasons connected with change of organizational or technological working conditions (change in technics and "know-how", structural reorganization of manufacture, other reasons), the conditions of the labor contract certain by the parties cannot be kept, is supposed their change under the initiative of the employer, except for change of labor function of the worker.
As we see the Russian Federation from given norm LC, one of the bases of change of conditions of the labor contract under the initiative of the employer is change of organizational working conditions. The organization of work represents the complex phenomenon which among other includes also the organization of a payment. Hence, the concept of change of organizational working conditions includes including change of the organization of a payment (system of a payment).
According to a part of the second clause 135 LC the Russian Federation systems of a payment, including the sizes of tariff rates, salaries, payments of compensatory and stimulating character are established by collective agreements, agreements, local statutory acts of the employer (positions, politicians and others). In turn the first specified clause provides a part, that the wages of the concrete worker are established by the labor contract according to systems of a payment operating at given employers.
Thus, positions of the part of the first clause 74 LC of the Russian Federation, parts of the first and the second clause 135 LC of the Russian Federation in their interrelation allow the employer in case of change at his system of a payment to initiate respective alteration of conditions of labor contracts of concrete workers. Differently the employer acquires the right to insist on reduction of conditions of labor contracts a payment in conformity with new system of a payment.
Certainly, that change of conditions of a payment under the initiative of the employer should not carry discrimination character or serve as the means compelling workers to leave work.
About forthcoming change of the conditions of the labor contract certain 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. LC the Russian Federation does not establish detailed procedure of the prevention. However we recommend to acquaint the worker under a list with the corresponding written document (the order or the prevention).
If the worker does not agree to work in new conditions of a payment the employer is obliged to offer in writing to him other available work (as a vacant position or a work corresponding qualification of the worker, and a vacant subordinate position or a lower payed work) which the worker can carry out in view of his state of health. Thus the employer is obliged to offer the worker all the vacancies meeting specified requirements which are available it in that district which is a place of a permanent job of the worker. The employer is obliged to offer vacancies in other districts, if it is stipulated by the collective agreement, agreements, the labor contract. At absence of suitable vacant posts or refusal of the worker of the offered vacancy the employer acquires the right to dismiss the worker according to item 7 of a part of first clause 77 LC the Russian Federation (refusal of continuation of work in connection with change of the conditions of the labor contract certain by the parties).
If the worker agrees to continue work in new conditions of a payment, the parties make out the corresponding agreement on change of conditions of the labor contract. As to working hours, to be exact speaking, its mode by the general rule it is established not by the labor contract, and rules of the internal labor schedule (clause 100 LC of the Russian Federation). Differently the mode of working hours has local normative character and extends on individually not certain circle of persons (all workers of the given employer, workers of separate structural divisions or posts). In this connection for change of a mode of working hours the employer as a rule needs to change not labor agreements, and rules of the internal labor schedule. Thus it is necessary to remember, that according to clause 160 LC of the Russian Federation norms of working hours, concern to norms of work. In turn clause 162 LC establishes the Russian Federation, that workers should be informed on introduction of new norms of work not later than two months. Therefore in case of change of norms of working hours we recommend to inform beforehand about it workers by means of acquaintance under a list .
The condition on a mode of working hours without fail joins in the labor contract only when the mode of working hours established for the concrete worker differs from the general rules operating at the employer, (clause 57 LC the Russian Federation).
If the mode of working hours nevertheless is registered in the labor contract a corresponding condition, as well as the condition on a payment, can be changed under the initiative of the employer in cases when it cannot be kept owing to change of technology or the organization of work. The order of change of a condition of the labor contract about a mode of working hours is similar to the order of change of a condition about a payment (clause 74 LC the Russian Federation). Thus refusal of the worker of continuation of work in connection with change of a condition of the labor contract about a mode of working hours also can cause dismissal of the worker.
In summary it is necessary to note, that experts carry change of the labor contract under the initiative of the employer to questions of the labor right of the raised complexity. In this connection we recommend employers to pay special attention to legal maintenance of the given actions.
About the Author
Alexander Ksenophontov graduated the Moscow State Law Academy in 1998. He has more than ten years’ experience of law practice. Now Alexander is a Senior Lawyer in the law firm of LEVINE Bridge.
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