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Lesson notes on labor law using ICT. An agreement was reached between the employee and the employer to terminate the employment contract, the date and grounds for dismissal were established (by agreement of the parties) Agreement of the parties: when it is necessary

29.01.2024

Does an employee, having changed his mind about quitting, have the right to unilaterally refuse to fulfill this agreement by warning the employer about this before issuing an order to dismiss? Does the employer have the right to fire the employee despite warning the employee?

Answer: Taking into account the provisions of the law, clarifications of the Plenum of the Supreme Court of the Russian Federation, clarifications of the Constitutional Court of the Russian Federation and judicial practice, the employee does not have the right to unilaterally refuse the agreement reached with the employer to terminate the employment contract due to the fact that to terminate such an agreement, consent is required employee and employer. Thus, if agreement to terminate a previously concluded agreement is not reached, the employer has the right to dismiss the employee.

Justification: According to clause 1, part 1, art. 77 of the Labor Code of the Russian Federation, agreement of the parties is one of the grounds for termination of an employment contract.

The employment contract, in accordance with Art. 78 of the Labor Code of the Russian Federation, can be terminated at any time by agreement of the parties to the employment contract.

Termination of an employment contract, in accordance with Part 1 of Art. 84.1 of the Labor Code of the Russian Federation, is formalized by order (instruction) of the employer.

Thus, based on the above provisions, if an agreement has been reached to terminate the employment contract between the employee and the employer, then the consent of both parties is necessary to terminate such an agreement, since the norms of labor legislation do not provide for the possibility of refusing the concluded agreement to terminate the employment contract.

As explained by the Plenum of the Supreme Court of the Russian Federation in clause 20 of the Resolution of March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, when considering disputes related to the termination of an employment contract by agreement of the parties (clause 1, part 1, art. 77, Article 78 of the Labor Code of the Russian Federation), courts should take into account that in accordance with Art. 78 of the Labor Code of the Russian Federation, upon reaching an agreement between the employee and the employer, an employment contract concluded for an indefinite period, or a fixed-term employment contract, can be terminated at any time within the period determined by the parties. Cancellation of an agreement regarding the period and grounds for dismissal is possible only with mutual consent of the employer and employee.

The Constitutional Court of the Russian Federation in its Determination dated October 13, 2009 N 1091-О-О explained that freedom of labor, enshrined in Part 1 of Art. 37 of the Constitution of the Russian Federation, implies the possibility of terminating an employment contract by agreement of its parties, that is, on the basis of the voluntary and agreed expression of will of the employee and the employer. Reaching an agreement to terminate an employment contract on the basis of a voluntary agreement of its parties allows for the possibility of annulment of such an agreement solely through the agreed expression of will of the employee and the employer, which excludes the commission by both the employee and the employer of arbitrary unilateral actions aimed at abandoning a previously reached agreement. Such legal regulation is aimed at ensuring a balance of interests of the parties to the employment contract and cannot be considered as violating the constitutional rights of the employee.

From judicial practice it follows:

The St. Petersburg City Court, having established from the case materials that the employee, having changed his decision to quit, warned the employer about this, but was dismissed, in the Determination dated October 4, 2011 N 14946, came to the conclusion that due to the fact that the cancellation of the agreement grounds and the period of dismissal is possible only with the mutual consent of the employer and the employee, on the basis that the employer did not change his intention regarding the dismissal of the employee and at the time of dismissal between the employee and the employer, the agreement regarding the period and grounds for dismissal was not canceled by mutual consent of the employer and employee, the employer had the right to dismiss the employee under clause 1, part 1, art. 77 Labor Code of the Russian Federation.

The Moscow City Court, holding a similar opinion, in Ruling dated September 28, 2011 N 33-31167, established that the employee’s withdrawal of his application is not enough to annul the agreement regarding the period and grounds for dismissal; for this, the law provides for the mandatory consent of the second party - the employer, which was not obtained Therefore, it was not possible to cancel this agreement of the parties.

Thus, based on the analysis of the provisions of the law, clarifications of the Plenum of the Supreme Court of the Russian Federation, clarifications of the Constitutional Court of the Russian Federation and judicial practice, we can conclude that in order to terminate the agreement between the employee and the employer on the termination of employment relations, the consent of both parties is necessary due to the fact that the cancellation unilateral agreement regarding the period and grounds for dismissal is not permitted and is possible only with the consent of both the employee and the employer.

V. A. Lyubimova

Center for Accounting Methodology

and taxation

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As practice shows, one of the most common grounds for dismissal is dismissal at the initiative of the employee. But there are situations when it is optimal for both the employee and the employer to terminate the employment contract by agreement of the parties. Then the parties to the employment contract can agree on the period of dismissal, compensation, etc. In the article we will consider the nuances of concluding and executing an agreement, its amendment and cancellation, as well as other issues that arise when dismissal by agreement of the parties.

The main advantage of the agreement compared to other grounds for dismissal is that, by agreement of the parties, the employment contract can be terminated at any time (Article 78 of the Labor Code of the Russian Federation). The reasons for concluding such an agreement can be very different, for example, the employee’s desire to resign before the expiration of the employer’s two-week warning period, the employee’s dismissal at the employer’s suggestion before the expiration of two months due to staff reduction or liquidation of the organization, or the employee’s inadequacy for the position held.

Unfortunately, the Labor Code pays very little attention to dismissal by agreement of the parties. From Article 78 of the Labor Code of the Russian Federation, only two conclusions can be drawn:

— the initiator of the agreement can be either the employee or the employer;

— the employment contract can be terminated at any time by agreement of the parties.

As for the procedures for its conclusion, execution and amendment, in these matters one must be guided by established practice, including judicial practice, and the opinions of experts. Let's figure it out.

Agreement form

The law does not establish in what form the agreement must be concluded; it is assumed that it can be reached both in written and oral form. However, since disputes regarding dismissal by agreement of the parties are quite common, it is necessary that this agreement serve as evidence, first of all, that the parties showed a desire to terminate the employment contract precisely on this basis and agreed on the terms of such termination. And such evidence can only be an agreement in documentary form.

In addition, since the employment contract is concluded in writing, the agreement to terminate it must also be drawn up in writing. This conclusion is confirmed by judicial practice, in particular the Appeal ruling of the Moscow Regional Court dated March 14, 2013 in case No. 33-6131/2013.

Another question that usually arises is whether the agreement should be executed as a separate document. Here the courts generally take the following position: clause 1, part 1, art. 77 and art. 78 of the Labor Code of the Russian Federation does not establish the form of the agreement, which means that it does not have to be a separate document, the main thing is that it follows from it that an agreement has been reached between the employee and the employer. Such a document may be an employee’s application for termination of the employment contract by agreement of the parties with a mandatory indication of the date of termination, on which there is a resolution of the head of the organization on consent. It might look like this.

11/20/2013, Shibaev

Statement

I ask you to terminate the employment contract with me by agreement of the parties on the basis of clause 1, part 1, art. 77 of the Labor Code of the Russian Federation November 22, 2013.

If the manager does not agree, he can put down the resolution “Refuse” or “Disagree,” and then the employee will most likely have to write another statement - about dismissal of his own free will.

In the case when the employee and the employer have to agree on other conditions in addition to the date of dismissal, for example, on payment of compensation to the employee, a more convenient form would still be a separate document - an agreement. Let's give an example of it.

Agreement
on termination of the employment contract
dated 10.08.2011 N 73/11

1. In accordance with Article 78 of the Labor Code of the Russian Federation, the Employee and the Employer agreed to terminate the employment contract dated August 10, 2011 N 73/11 by agreement of the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation) on November 22, 2013.

3. On the Employee’s last working day, the Employer undertakes to issue a completed work book and make full payments to him.

4. On the Employee’s last working day, the Employer undertakes to pay the Employee the wages due to him, compensation for unused vacations, as well as severance pay in the amount of two official salaries, and the Employee undertakes to accept the specified amounts.

5. The Employee and the Employer confirm that the amount of severance pay established in clause 4 of this Agreement is final and cannot be changed.

6. The parties have no mutual claims against each other.

7. This Agreement is drawn up in two copies having equal legal force - one for each of the Parties.

Please note that the mandatory terms of the agreement are the basis for termination of the employment contract (agreement of the parties) and the date of dismissal of the employee. In addition, the agreement may contain the following conditions:

— on the payment of additional compensation in connection with the termination of an employment contract by agreement of the parties or severance pay and their amount;

— on the employee’s performance of certain actions before dismissal (for example, transferring affairs to another employee, participation in inventory);

— granting the employee leave with subsequent dismissal (Article 127 of the Labor Code of the Russian Federation);

- others that do not worsen the employee’s position in comparison with those established by current legislation.

Conclusion of an agreement

So, as already mentioned, not only the employee, but also the employer can take the initiative to terminate the employment contract. And if such a proposal from the employee is expressed directly in the resignation letter, that is, in writing, then the employer can offer the employee to enter into an agreement in any form - both written and oral. But in order to agree on all the conditions of dismissal, you need to enter into a written agreement.

An employer can initiate termination of an employment contract for many reasons. The most common is staff reduction. But there are grounds for dismissal that must be preceded by certain procedures. For example, before dismissal for non-compliance with the position held, the employer must conduct a certification; before dismissal for committing a disciplinary offense, the procedure for bringing to disciplinary liability must be followed. Thus, in order not to complicate the life of either the employee or the employer, the optimal basis for dismissal may be an agreement to terminate the employment contract.

An employer taking the initiative to conclude such an agreement needs to remember the following.

1. The agreement must be concluded voluntarily. If the employee can prove in court that the agreement was concluded under pressure from the employer, such an agreement will be declared illegal and the employee will be reinstated at work. The courts may accept a variety of arguments in favor of the fact that pressure was exerted. This may be the employee's health condition. Let's give an example. Due to the fact that the employee was not feeling well and was in a hurry to go to the hospital, he signed the dismissal agreement offered to him by the employer, after which the hospital diagnosed him with a hypertensive crisis. Based on the submitted certificates and sick leave, the court declared the employee’s dismissal illegal (Decision of the Kirovsky District Court of Omsk dated March 2, 2011 in case No. 2-1018/2011). In another case, the court considered that there was no agreement between the parties to terminate the employment contract, since it was established that the HR department employee misled the employee and fraudulently forced him to sign the agreement, although he did not intend to quit his job, since he had four children in his arms and was on parental leave (Cassation ruling of the Supreme Court of the Republic of Tyva dated 10/11/2011 in case No. 33-853/2011).

2. Payment of severance pay in accordance with Part 4 of Art. 178 of the Labor Code of the Russian Federation, when dismissal by agreement of the parties must be provided for in an employment or collective agreement. From judicial practice it follows that if there is no such condition in the employment contract, then it is necessary to conclude an additional agreement to it, which stipulates the amount of severance pay or monetary compensation upon dismissal by agreement of the parties. Payment of severance pay upon termination of an employment contract cannot be established only by a termination agreement, since such an agreement is not an additional agreement to the employment contract (Appeal ruling of the Moscow City Court dated May 30, 2013 in case No. 11-14388).

3. The amount of compensation must correspond to the employer’s current remuneration system. That is, if the agreement stipulates the payment of severance pay to an employee in the amount of six average monthly earnings, with a salary of 13,000 rubles. it cannot possibly be 1,209,522 rubles. (Determination of the Moscow City Court dated July 30, 2013 N 4g-7770).

The termination of an employment contract by agreement of the parties with pregnant employees is worthy of attention, since quite a lot of claims are received from them to recognize the agreement to terminate the employment contract as illegal. Thus, an agreement was signed with the employee to terminate the employment contract. After signing it, she found out that she was pregnant and applied to her employer to recognize the agreement as not concluded and to be reinstated at work, but was refused. Believing that her interests had been violated, she went to court, where she was also denied: it is prohibited to terminate an employment contract with pregnant women only at the initiative of the employer (Article 261 of the Labor Code of the Russian Federation). The agreement was signed with the mutual expression of will of the parties (Appeal ruling of the Samara Regional Court dated February 25, 2013 in case No. 33-1885/2013).

An agreement to terminate an employment contract with a pregnant employee may be considered illegal if she proves in court that she signed the document under duress.

It will also not contradict labor legislation if the dismissal by agreement falls during the period of vacation or sick leave.

On March 22, 2013, S. applied for her dismissal from work by agreement of the parties from this date, on the same day an agreement was concluded between her and the employer to terminate the employment contract on March 22, 2013 and she was fired, after which she filed a lawsuit to declare her dismissal illegal and reinstate her at work. She gave the following arguments: pressure was put on her, the dismissal order was issued too quickly, she was fired during a period of temporary incapacity for work. However, the court did not establish any violations on the part of the employer and came to the conclusion that the dismissal was made on the basis of the plaintiff’s personal statement, written voluntarily and in his own hand, the dismissal procedure was followed by the defendant, the fact that the dismissal was forced was not proven; the law does not contain a prohibition on the dismissal of an employee by agreement of the parties during the period of his temporary incapacity for work. The claims were rejected (Appeal ruling of the Chelyabinsk Regional Court dated September 3, 2013 in case No. 11-8851/2013).

Change and cancellation of the agreement

Perhaps, after signing the agreement, one of the parties will want to change any of the conditions: postpone the date of dismissal, change the amount of compensation, etc. But this cannot be done unilaterally. To change the terms of an agreement, as well as to conclude it, the will of both parties is necessary. If the parties agree, they should enter into a new agreement, which first cancels the previous one, and then establishes new conditions for dismissal by agreement of the parties.

The same applies to the cancellation (cancellation) of the agreement. True, some employees believe that, by analogy with an application for resignation of one’s own free will, which can be withdrawn before the date of dismissal, dismissal can also be refused by agreement of the parties and the agreement will be considered cancelled. But this, of course, is not true. An agreement to terminate an employment contract can also be canceled only by mutual consent, which is confirmed by Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation.”

According to paragraph 20 of this resolution, upon reaching an agreement between the employee and the employer, an employment contract concluded for an indefinite period, or a fixed-term employment contract, can be terminated at any time within the period established by the parties. Cancellation of an agreement regarding the period and grounds for dismissal is possible only with mutual consent of the employer and employee. Here is a sample of such an agreement.

Agreement on cancellation of the agreement dated November 20, 2013 on termination of the employment contract dated August 10, 2011 N 73/11

Limited Liability Company "Stroyservis" represented by General Director Konstantin Sergeevich Shibaev, acting on the basis of the Charter, hereinafter referred to as the Employer, on the one hand, and Maria Nikolaevna Belova, hereinafter referred to as the Employee, on the other hand, collectively referred to as the Parties, have entered into this agreement about the following.

1. The parties agreed to cancel the agreement dated November 20, 2013 on termination of the employment contract dated August 10, 2011 N 73/11.

2. This agreement is drawn up in two copies having equal legal force, one copy for each party.

Dismissal by agreement

So, the agreement has been signed. On the day specified in it, the employer issues an order to terminate the employment contract by agreement of the parties and makes an entry in the work book that will look like this: “The employment contract is terminated by agreement of the parties, paragraph 1 of part one of Article 77 of the Labor Code of the Russian Federation.”

On the last working day, a settlement is made with the employee and a work book is issued.

However, not all so simple. Perhaps, without waiting for the last working day, the employee, after concluding an agreement, will write a letter of resignation of his own free will. What should the employer do in this case? This situation arises if the work period established by the agreement exceeds two weeks, or the employee wants the basis for dismissal not to be the agreement of the parties, but his own desire, etc. And here experts are of the following opinion.

If, after the conclusion of the agreement, the employee submitted a letter of resignation of his own free will from an earlier date, then he must be dismissed of his own free will. The employer does not have the right to retain the employee, since the conclusion of the agreement does not limit the employee’s right to terminate the employment contract in accordance with Art. 80 of the Labor Code of the Russian Federation at your own request. In this case, the employee’s statement is not a revocation of the agreement and does not cancel it - it is a document with the help of which the employee exercises his right. If the employee in the resignation letter indicates a later date than in the agreement, the situation is the opposite: the application is canceled by the agreement, since the agreement sets an earlier dismissal date and the employer has the right to use it. And the employee does not have the right to cancel the agreement unilaterally. The application and agreement have the same legal force, but the execution of these documents will depend on the timing. In which document the date of dismissal is earlier, it has priority.

Can an employee who signed an agreement be dismissed for other reasons, for example, at the initiative of the employer for committing a disciplinary offense (absenteeism, theft, etc.)? Experts have different opinions. But we adhere to this position: if a disciplinary offense was committed before the date of dismissal established by the agreement, it is possible to dismiss the employee, since the conclusion of the agreement does not relieve the employee from conscientiously performing labor duties until the moment of dismissal. But at the same time, it is necessary to comply with the procedure for bringing to disciplinary liability established by Art. 192, 193 Labor Code of the Russian Federation.

Thus, K. filed a lawsuit to declare the illegality of her dismissal for absenteeism in the presence of an agreement to terminate the employment contract. At the same time, the plaintiff believed that if the employer had arrears in paying her the amounts specified in the agreement, she had the right not to go to work. But her arguments were not confirmed during the trial. There were also no violations of the law in the procedure for bringing to disciplinary liability. K.’s claims were denied (Appeal ruling of the Moscow City Court dated July 24, 2012 in case No. 11-14732).

Summarize

In conclusion, we note: despite the fact that there are quite a lot of legal disputes related to the termination of an employment contract by agreement of the parties, this method in some cases is still preferable to others. Such an agreement can be concluded for any reason and at any time. In addition, it can be concluded with any employee - a pregnant woman, an employee with children under three years of age, a single mother, etc. In this case, the consent of a trade union or other representative body of workers is not required. We would like to add that by agreement of the parties, both an agreement concluded for a certain period and a fixed-term employment contract can be terminated.

So, there are quite a lot of advantages of entering into an agreement. And if you follow our recommendations, you will not be afraid of litigation.

When concluding an employment contract, an employment relationship arises between the employer and the job applicant, and the applicant himself becomes an employee with rights and responsibilities defined by law and the contract. What guarantees of the rights of citizens in the process of concluding an employment contract does the current legislation provide?

The Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) in Article 57 establishes a number of essential conditions that must be necessarily reflected in the employment contract as a written agreement between the employee and the employer:

Place of work, and in the case when an employee is hired to work in a branch (representative office, other separate structural unit of the organization);

– place of work indicating a separate structural unit and its location;

Labor function (work according to the position in accordance with the staffing table, profession, specialty indicating qualifications; specific type of work assigned to the employee);

The start date of work, and when concluding a fixed-term employment contract - also the duration of its validity and the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract;

Conditions of remuneration (including the size of the tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments;

Working hours and rest hours (if for a given employee it differs from the general rules in force for a given employer);

Compensation for hard work and work under harmful and (or) dangerous working conditions, if the employee is hired under appropriate conditions, indicating the characteristics of working conditions at the workplace;

Conditions that determine, if necessary, the nature of the work (mobile, traveling, on the road, other nature of work); - condition on compulsory social insurance of the employee;

Other conditions in cases provided for by labor legislation and other regulatory legal acts containing labor law norms.

Indication of these mandatory conditions in the employment contract acts as a separate guarantee that the employer takes into account the rights and legitimate interests of the employee in the labor process. At the same time, their absence in itself in the employment contract does not entail recognition of the contract as not concluded, but of the actual labor relations that have developed in as a result of the employee's admission to work - absent. On the contrary, by virtue of the direct instructions of the law, the employment contract must be supplemented with appropriate conditions.

The text of the employment contract, if an appropriate agreement is reached between the employee and the employer, may also include additional conditions relating, in particular, to improving the social and living conditions of the employee and his family members, additional material incentives for the employee and a number of other issues.

When drawing up an employment contract, it is also of fundamental importance to indicate in the contract its details, including:

Last name, first name, patronymic of the employee and name of the employer (last name, first name, patronymic of the employer - an individual);

Information about documents proving the identity of the employee and the employer - an individual;

Taxpayer identification number (for employers, with the exception of employers - individuals who are not individual entrepreneurs);

Information about the employer’s representative who signed the employment contract and the basis on which he is vested with the appropriate powers;

Place and date of conclusion of the employment contract.

The current Russian legislation has adopted the Recommendation of the International Labor Organization No. 166 “On the termination of employment relations on the initiative of entrepreneurs” (1982) on limiting the cases of concluding fixed-term employment contracts. The purpose of such a restriction is clear - labor relations, as a general rule, must be sufficiently strong and ensure the stability of the employee’s social status. Therefore, Article 59 of the Labor Code of the Russian Federation, in fact, establishes a general rule - an employment contract is concluded for an indefinite period, unless otherwise established by this Code or other federal laws, taking into account the nature of the work to be performed or the conditions for its implementation.

Thus, the list of cases in which a fixed-term employment contract can be concluded is limited.

Fixed-term employment contracts are concluded in the following cases:

For the duration of the performance of the duties of an absent employee, whose place of work is retained in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, and an employment contract;

For the duration of temporary (up to two months) work;

To perform seasonal work, when, due to natural conditions, work can only be carried out during a certain period (season);

With persons sent to work abroad;

To carry out work that goes beyond the normal activities of the employer (reconstruction, installation, commissioning and other work), as well as work related to a deliberately temporary (up to one year) expansion of production or the volume of services provided; - with persons entering work in organizations created for a predetermined period or to perform a predetermined job;

With persons hired to perform obviously defined work in cases where its completion cannot be determined by a specific date;

To perform work directly related to the internship and professional training of the employee;

In cases of election for a certain period to an elected body or to an elective position for paid work, as well as employment related to the direct support of the activities of members of elected bodies or officials in state authorities and local governments, in political parties and other public associations;

With persons sent by employment services to temporary work and public works;

With citizens sent to perform alternative civil service;

Also, by agreement of the parties, a fixed-term employment contract may be concluded:

With persons entering work for employers - small businesses (including individual entrepreneurs), the number of employees of which does not exceed 35 people (in the field of retail trade and consumer services - 20 people);

With age pensioners entering work, as well as with persons who, for health reasons in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, are allowed to work exclusively of a temporary nature;

With persons entering work in organizations located in the Far North and equivalent areas, if this is associated with moving to the place of work;

To carry out urgent work to prevent disasters, accidents, accidents, epidemics, epizootics, as well as to eliminate the consequences of these and other emergency circumstances;

With persons elected through a competition to fill the relevant position, conducted in the manner established by labor legislation and other regulatory legal acts containing labor law norms;

With creative workers of the media, cinematography organizations, theaters, theatrical and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, in accordance with the lists of works, professions, positions of these workers, approved by the Government of the Russian Federation Federation, taking into account the opinion of the Russian Tripartite Commission for the Regulation of Social and Labor Relations;

With managers, deputy managers and chief accountants of organizations, regardless of their legal forms and forms of ownership;

With persons studying full-time;

With persons entering part-time work;

In other cases provided for by this Code or other federal laws.

An employment contract, as a general rule, comes into force from the day it is signed by the employee and the employer, although a different period may be specified in the contract itself. The actual admission of an employee to work with the knowledge or on behalf of the employer (his representative) is equivalent to the conclusion of an employment contract, which in this case must still be drawn up in writing, even after the actual admission to work (Part 2 of Article 67 of the Labor Code of the Russian Federation) .

If the employment contract does not specify the start day of work, then the employee is obliged to start work on the next working day after the contract enters into force (Part 3 of Article 61 of the Labor Code of the Russian Federation).

The employment contract is concluded in writing, drawn up in 2 copies, each of which is signed by the parties. In this case, one copy of the contract remains with the employee, the second is kept with the employer. The employee’s receipt of a copy of the employment contract must be confirmed by the employee’s signature on the copy of the employment contract kept by the employer (Part 1 of Article 67 of the Labor Code of the Russian Federation).

The conclusion of an employment contract is the basis for the employer to issue an order (instruction) on hiring. In this case, the order (instruction) is announced to the employee against signature within 3 days from the date of actual start of work. At the employee’s request, the employer is obliged to provide him with a duly certified copy of the specified order (Article 68 of the Labor Code of the Russian Federation).

The General Director of Zvezda OJSC was handed a letter from the trade union committee of the Zvezda OJSC workers' union, which contained a proposal to enter into collective negotiations on the development of a project and the conclusion of a collective agreement for Zvezda OJSC. The General Director sent a response letter to the trade union committee of the trade union of employees of JSC Zvezda, in which he indicated that he had not considered the proposal to enter into collective negotiations on the development of the project and the conclusion of a collective agreement of JSC Zvezda, since the company was on the verge of bankruptcy and he had no time deal with such issues.

Is it legal for the CEO to refuse collective bargaining?

No, the general director is obliged to enter into negotiations within seven calendar days from the date of receipt of the letter, and notify representatives of the trade union committee in a response letter. In my answer, I will refer to the Labor Code of the Russian Federation, Chapter 6, Article 36 (as amended as of 01/01/2013): (as amended as of 01/01/2013)

Labor Code of the Russian Federation

Part two

Section II. Social partnership in the sphere of labor

Chapter 6. Collective Bargaining

Article 36. Conducting collective bargaining

Representatives of workers and employers participate in collective negotiations for the preparation, conclusion or amendment of a collective agreement, agreement and have the right to take the initiative to conduct such negotiations.

Representatives of a party who have received a proposal in writing to begin collective bargaining are required to enter into negotiations within seven calendar days from the date of receipt of the proposal by sending a response to the initiator of collective bargaining indicating representatives from their side to participate in the work of the collective bargaining commission and their powers. The start day of collective negotiations is the day following the day the initiator of collective negotiations receives the specified response.

Collective negotiations and the conclusion of collective agreements and agreements on behalf of employees by persons representing the interests of employers, as well as organizations or bodies created or financed by employers, executive authorities, local government bodies, and political parties are not allowed, except for the cases provided for by this Code.

3. Draw up an amendment to the employment contract with the employee containing a condition on increasing wages

The parties to the employment relationship may make changes to the employment contract during the entire period of its validity. Chapter 12 of the Labor Code of the Russian Federation contains the legal basis for amending it.

As a general rule, changes to the terms of an employment contract are made by concluding an additional agreement between the employee and the employer, which is subsequently an integral part of the employment contract (Article 72 of the Labor Code of the Russian Federation). The initiator of changing the terms of the employment contract can be either the employee or the employer.

The main thing is that the conditions included in the contract and the changes made do not contradict the current labor legislation, since by virtue of Art. 9 of the Labor Code of the Russian Federation, if conditions that contradict the Labor Code of the Russian Federation are included in a collective agreement, agreement or employment contract, then they are not subject to application.

In addition to the conditions mandatory for inclusion in an employment contract on the basis of Art. 57 of the Labor Code of the Russian Federation, additional conditions may also be subject to change if they are contained in the employment contract or annexes to it. Modern labor legislation is aimed at ensuring contractual (consensual) relations between the employee and the employer.

1. Changing the terms of the employment contract at the initiative of the employee

An employee who considers that changes need to be made to the employment contract has the right to contact the employer with a statement containing the reasons for making changes to the employment contract, the nature of the changes and the expected timing of their introduction. To avoid disputes, it is recommended to draw up a written statement and register it with the office, human resources department or other department that registers incoming documentation.

Having considered the employee’s application, the employer either agrees to amend the employment contract or refuses the employee. The employer can express his opinion in writing (in a resolution on the employee’s application or in a separate letter). It should be noted that the employer has the right to agree with the employee’s proposal, but is not obliged, and pressure on the employer from the employee in this matter is unacceptable. If the employer does not agree with the employee’s proposal, the terms of the employment contract remain the same.

If the employer agrees with the employee’s proposal, the parties sign an additional agreement to the employment contract, which records the agreements reached. If necessary, the employer issues an appropriate order, makes entries in the employee’s work book and personal card (for example, when transferring to another structural unit).

2. Changing the terms of the employment contract at the initiative of the employer

Practice shows that most often, at the initiative of the employer, one or more mandatory conditions of the employment contract, provided for in Art. 57 of the Labor Code of the Russian Federation, as well as other additional conditions included in the contract in accordance with the requirements of the Labor Code of the Russian Federation, namely:

  • 1) a condition defining the employee’s place of work (including indicating a separate structural unit and its location);
  • 2) a condition defining the labor function assigned to the employee (work according to the position in accordance with the staffing table, profession, specialty indicating qualifications) or the specific type of work assigned to the employee;
  • 3) the condition determining the employee’s remuneration (salary amount, additional payments, bonuses, as well as incentive payments, payment terms);
  • 4) a condition determining the working time and rest time regime of the employee (including in cases where these regimes in relation to the employee differ from the general rules in force for a given employer);
  • 5) conditions determining, if necessary, the nature of the work (mobile, traveling, on the road, other nature of work);
  • 6) a condition that allows you to determine whether the work under this employment contract is the main place of work or part-time work (Article 282 of the Labor Code of the Russian Federation);
  • 7) a condition on the amount of reimbursement of expenses when using personal property of employees (Article 188 of the Labor Code of the Russian Federation);
  • 8) a condition on the amount of compensation in the event of termination of an employment contract with the head of the organization (Article 279 of the Labor Code of the Russian Federation);
  • 9) conditions on the types and conditions of additional insurance for the employee;
  • 10) a condition for additional monetary compensation upon dismissal by agreement of the parties, and others.

An employer who sees the need to change the terms of an employment contract with an employee (change of subordination, structural unit, position, work schedule, transfer to another permanent job with another employer, moving to another area with the employer, etc.) sends the employee a reasoned proposal to change the previously conditions specified in the employment contract. It is advisable to make such an offer to the employee in writing, indicating the period within which the employee must make a decision on this issue. Putting pressure on an employee by an employer is unacceptable. If the employee refuses, the terms of the employment contract remain the same. The exception is a change in the terms of an employment contract unilaterally at the initiative of the employer due to a change in organizational or technological working conditions (Article 74 of the Labor Code of the Russian Federation).

Have you ever wondered how many times the Labor Code contains the phrase “by agreement of the parties”? How is it different from the “consent” of the employee or the “initiative” of the employer? And what documents need to be completed in each case? Agreement? Agreement? Or maybe the employee should write a statement?.. Some will give up - the main thing is to come to an agreement with the employee, and it won’t be about the documents... But everything, of course, is not so simple. Reaching an agreement is half the battle; you still need to formalize it correctly. We hope our recommendations will help you choose the right design option for any situation.

Admit it, how often do you look at Section I of the Labor Code of the Russian Federation, which is called “General Provisions”? In fact, the honest answer “no” will surprise no one. Those for whom the Code is a reference book usually work with “applied” norms, starting somewhere with Article 57 “Content of the Employment Contract”. But in order to understand why it is necessary to negotiate something with an employee at all, let’s turn to the general provisions of the Code.

AGREEMENT OF THE PARTIES: WHEN IT IS NECESSARY TO AGREE

Labor relations are those based on an agreement between an employee and an employer on the employee’s personal performance of a labor function for pay, the employee’s subordination to internal labor regulations while the employer provides working conditions provided for by labor legislation, a collective agreement, agreements, local regulations, an employment contract (Article 15 Labor Code of the Russian Federation). They arise between an employee and an employer on the basis of an employment contract concluded by them in accordance with the Code (Part 1 of Article 16 of the Labor Code of the Russian Federation).

So, the law calls the employment contract the basis for the emergence of relations between an employee and an employer. And many norms are devoted to its content and form. And most importantly, the conditions in the employment contract are fixed by agreement of the parties.

For example, when concluding an employment contract, by agreement of the parties, it provides for the condition of testing the employee in order to verify his compliance with the assigned work (Part 1 of Article 70 of the Labor Code of the Russian Federation).

However, as they say, “everything flows, everything changes,” and during the course of work, the terms of the concluded contract may change for one reason or another. As a general rule, this is allowed only by agreement of the parties to the employment contract. The Code provides for some exceptions, but even in these situations, the employee has the right to choose: continue working under new conditions proposed by the employer, or terminate the employment relationship. This means that in such situations, the employee actually agrees to change the terms of the employment contract.

In cases where, for reasons related to changes in organizational or technological working conditions (changes in equipment and production technology, other reasons), the terms of the employment contract determined by the parties cannot be maintained, it is allowed to change these conditions at the initiative of the employer, with the exception of the employee’s labor function .

The employee is warned in writing about upcoming changes to the conditions of the employment contract determined by the parties, as well as about the reasons that made them necessary, in writing no later than two months, unless other deadlines are provided for by the Labor Code of the Russian Federation. An employee may agree to continue working under changing conditions. In this case, the parties will enter into an additional agreement to the employment contract, where they will determine new conditions.

However, the employee may not agree to work under the new conditions. In this case, the employer is obliged to offer him in writing another available job that the employee can perform taking into account his state of health. If the employee agrees to be transferred to another job, the parties draw up an additional agreement to the employment contract, where they determine the working conditions for the new job function.

In the absence of such work or the employee’s refusal to transfer, the employment contract is terminated under clause 7, part 1, art. 77 Labor Code of the Russian Federation. As we see, in this last option the parties were unable to agree either on working under new conditions or on transferring the employee to another job. Since the change in the terms of the employment contract is caused by objective circumstances, the parties have no choice but to terminate the employment relationship on appropriate grounds.

So, if an agreement is reached between the employee and the employer, the employment contract can be concluded, amended or terminated. By agreement of the parties, the content of the employment contract is determined (Article 57 of the Labor Code of the Russian Federation), a transfer to another job is carried out (Article 72 of the Labor Code of the Russian Federation), and the contract can be terminated (Article 78 of the Labor Code of the Russian Federation).

The law also provides for situations in which the performance of actions by an employee or employer does not entail a permanent change in the terms of the employment contract, but leads to a “one-time”, short-term deviation from the general rules.

For example, an employee will ask for part of the vacation, while the employment contract provides for the provision of vacation in full and the entire vacation is planned in the vacation schedule.

How can you deviate from the rules? Of course, by agreement of the parties. In our example, the authorized representative of the employer will either agree to provide the employee with part of the vacation, or refuse such provision - and then the employee will use the vacation in the amount and on the dates provided for in the vacation schedule.

By agreement of the parties, other issues may be resolved when regulating relations directly related to labor.

Thus, the agreement of the parties, expressed in writing, determines the amount of reimbursement of expenses when an employee uses personal property with the consent or knowledge of the employer and in his interests (Article 188 of the Labor Code of the Russian Federation).

Finally, the law also highlights those cases when reaching an agreement with the employee is not required. As a rule, they are associated with special circumstances, and the employee is provided with certain guarantees.

In the event of an industrial accident, the employee may be transferred without his consent for a period of up to one month to work not stipulated by the employment contract with the same employer to eliminate the consequences of the accident. In this case, the employee is paid according to the work performed, but not lower than the average earnings for the previous job.

AGREEMENT OF THE PARTIES: WHEN IT NEEDS TO BE EXECUTED

The agreement of the parties is a wording that is neutral in nature. In the Code, cases of agreement between the parties are designated differently: “agreement”, “by agreement of the parties”, “agreement of the parties, drawn up in writing”. When certain actions are initiated by one party and the other is asked to agree to it, the wording “with consent” is used.

In some cases, the legislator directly prescribes the need to formalize the agreement of the parties in writing; other norms do not contain such mandatory instructions.

Note! The existence of an agreement between the parties to the employment contract in cases directly provided for by the current Labor Code of the Russian Federation requires confirmation

However, a written form of agreement is necessary in most cases, even when it is not expressly required by law.

For example, Part 1 of Art. 93 of the Labor Code of the Russian Federation provides: by agreement between the employee and the employer, both upon hiring and subsequently, a part-time working day (shift) or a part-time working week can be established. The norm does not provide that such an agreement between the employee and the employer must be drawn up in writing. However, it is obvious that when hiring, the condition of part-time work is included in the employment contract, which is concluded in writing.

Sometimes the logic of the legislator is incomprehensible when in one case a written form of agreement is directly provided for, but in another similar situation such an indication is not made.

For employees studying part-time and part-time (evening) forms of study in state-accredited educational institutions of higher professional education, a working week shortened by 7 o'clock.

Part 5 Art. 173 of the Labor Code of the Russian Federation provides that, by agreement of the parties to an employment contract, a reduction in working hours is carried out by providing the employee with one day off from work per week or by reducing the duration of the working day during the week. A similar guarantee is provided for employees studying part-time (evening) and part-time courses in state-accredited educational institutions of secondary vocational education.

However, Part 5 of Art. 174 of the Labor Code of the Russian Federation, which establishes the method for determining a reduction in working hours, specifically states that the agreement of the parties to an employment contract must be concluded in writing. Why is the written form of the agreement not indicated in Part 5 of Art. 173 of the Labor Code of the Russian Federation is unclear. Apparently, the agreement must be in writing in both cases.

Advice: Document the agreements reached with the employee in writing, even if the law does not directly provide for such a form of agreement between the parties.

Finally, keeping the agreement in writing between the parties is recommended in order to demonstrate that the employer is complying with applicable labor laws. A timely and correctly drawn up document confirming the existence of an agreement between the parties will help in the event of controversial situations.

Of course, in practice there are also situations where a verbal agreement between the parties is sufficient.

The Labor Code provides that an employee can go to work on the day of donating blood and its components. In this case, an agreement must be reached with the employer. Should such an agreement be written?

As a general rule, on the day of donation of blood and its components, as well as on the day of the associated medical examination, the employee is released from work. However, Part 2 of Art. 186 of the Labor Code of the Russian Federation provides that, by agreement with the employer, the employee may go to work on the day of donating blood and its components (with the exception of heavy work and work with harmful and (or) dangerous working conditions, when the employee’s going to work on this day is impossible). For work on the day of blood donation, the employee will be given another day of rest at his request.

In such a situation, written documentation of reaching an agreement on the employee’s return to work is not required; a verbal agreement is sufficient. And the fact that the employee both donated blood and went to work on the same day will be confirmed by data from the time sheet.

So, the law provides for many situations where the employee and the employer must reach an agreement, and in the vast majority of cases such an agreement is drawn up in writing. In this regard, the following question arises: what documents should the reached agreement include?

First of all, of course, contractual ones. The purpose of their creation is precisely to consolidate in writing all the provisions that the parties agree on.

The main contractual documents include:
employment contract;
agreement of the parties on testing upon the actual admission of the employee to work;
additional agreement to the employment contract;
student agreement;
agreement on training at the expense of the employer;
agreement on compensation for moral damage caused to the employee;
employee reimbursement agreement;
agreement on compensation for damage caused to the employer;
agreement of the parties to terminate the employment contract.

In some cases, drawing up a contract or agreement is unnecessary. Then it is enough to formalize the “deal” between the employee and the employer on another document. The main thing is that the question (proposal, request) of one party to the employment contract and the answer to this from the other party confirm that the employee and the employer have reached an agreement on this issue (proposal, request). Basically these can be the following documents:
employee statement;
notice sent to the employee.

On an employee’s application containing a specific request, the head of the organization will put a resolution, which will reflect the decision on the merits of the stated request ( Annex 1).

Having received a notification that contains a certain proposal, the employee, applying for an familiarization visa, can express his attitude towards such proposal ( appendix 2).

The cases of agreement between the parties provided for by the Labor Code of the Russian Federation, as well as methods for their execution, are given in table. Let's look at some of them in more detail.

AGREEMENT OF THE PARTIES. SELECTED CASES

Drawing up agreements when hiring

When hiring, the parties enter into an employment contract. Writing a contract allows the employee and the employer to formulate all the conditions in detail in order to avoid uncertainty regarding its content in the future.

The law does not dictate to the parties how to draw up a written employment contract. It is drawn up arbitrarily, but must meet the formal characteristics of a contract - a bilateral transaction, have the appropriate details and not contradict the fundamental principles of contract law.

Article 57 of the Labor Code of the Russian Federation establishes lists of information that must be indicated in an employment contract, conditions that must be included in it, and those conditions that the parties can agree on.

In accordance with Art. 70 of the Labor Code of the Russian Federation, one of the conditions of the employment contract may be the condition of testing the employee in order to verify his compliance with the assigned work. If the test condition was not agreed upon when concluding the employment contract and is not provided for in it, it is considered that the employee was hired without a test. The employer does not have the right to set a probationary period for the employee in the employment order if the employment contract does not provide for such a condition.

An exception to this general rule is in cases where an employee is actually allowed to work without drawing up an employment contract. In such a situation, when the employment contract is subsequently drawn up in writing, a test condition may be included in it, but only if the parties agreed on it and formalized this agreement in writing before the start of work.

Such an agreement is drawn up in any form and must contain information about the trial period agreed upon by the parties ( Appendix 3).

Drawing up agreements when transferring to another job

Transfer to another job is a permanent or temporary change:
labor function of the employee;
the structural unit in which the employee works (if the structural unit was specified in the employment contract).

Transfer to another job also includes transfer to work in another location together with the employer.

The reason for transferring an employee to another job may be production interests, temporary absence of another employee, personal desire of the employee, medical indications, etc. Regardless of the reasons for the transfer, it is permitted only by written agreement of the parties to the employment contract, which is drawn up in the form of an additional agreement to the employment contract.

Attention! Error! Sometimes, when an employee is transferred, a new employment contract is concluded. This is contrary to the law, since when an employee is transferred to another job, the employment relationship is not interrupted, but only some terms of the employment contract are changed

However, before concluding such an agreement, other documents may be created, for example:
an employee’s application requesting a transfer to another job;
an offer to the employee to transfer to another job;
idea of ​​transferring an employee to a higher position;
notification of the employee about the need to transfer together with the employer to another location.

The creation of such documents is not provided for by law and depends on the practice of work in a particular organization. The parties can negotiate, during which an oral agreement on the transfer will be reached. Such an agreement will be sufficient for the written execution of an additional agreement to the employee’s employment contract.

According to established practice, amendments to an employment contract are formalized by an additional agreement to it, signed by both parties. An additional agreement to the employment contract serves as the basis for issuing an order (instruction) to transfer the employee to another job.

Drawing up agreements upon termination of an employment contract

Every employment contract, once concluded, sooner or later ends. The parties are not absolutely free to choose the grounds for terminating the employment relationship. Labor legislation contains a list of grounds for termination of an employment contract.

Some of the grounds provide for the need for the parties to agree on the termination of the employment contract or certain procedures for dismissal.

According to clause 1, part 1, art. 77 of the Labor Code of the Russian Federation, an employment contract can be terminated by agreement of the parties. Since the employment contract arises by agreement of the parties, by their agreement it can be terminated at any time.

The Code does not contain a direct requirement for the mandatory written execution of a dismissal agreement. However, in practice such an agreement is drawn up in writing.

The form of the agreement can be arbitrary, the main thing is that it clearly expresses the desire of the parties to terminate the employment relationship by mutual agreement, indicating a specific date of dismissal.

The parties can also cancel the agreement to terminate the employment contract only by mutual consent. Evidence of such a mutual agreement may be another bilateral document, for example an agreement to cancel an agreement to terminate an employment contract ( Appendix 4).

We quote the document

When considering disputes related to the termination of an employment contract by agreement of the parties (clause 1 of part one of Article 77, Article 78 of the Labor Code of the Russian Federation), the courts should take into account that, in accordance with Article 78 of the Code, when an agreement is reached between the employee

and by the employer, an employment contract concluded for an indefinite period, or a fixed-term employment contract can be terminated at any time within the period determined by the parties. Cancellation of an agreement regarding the period and grounds for dismissal is possible only

with mutual consent of the employer and employee.

Paragraph 20 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”

Article 80 of the Labor Code of the Russian Federation gives the employee the right, on his own initiative, to terminate an employment contract at any time by notifying the employer in writing no later than two weeks in advance. This provision reflects the principle of freedom of labor and freedom of employment contract.

In accordance with Part 2 of Art. 80 of the Labor Code of the Russian Federation, by agreement between the employee and the employer, the employment contract can be terminated even before the expiration of the notice period for dismissal.

It should be borne in mind that the basis for dismissal does not change; it remains the same - at one’s own request, and not by agreement of the parties. In this case, the parties do not agree on the basis for dismissal, but only on the date of dismissal. Therefore, if the parties agreed to terminate the employment contract before the expiration of the statutory notice period, the employment contract is terminated on the basis of clause 3, part 1, art. 77 of the Labor Code of the Russian Federation on the date agreed upon by the employee and the employer.

Read more about the rules for drawing up contractual documents in the next issue of the Personnel Officer's Handbook.

Cases of agreement between the parties to an employment contract, provided for by the Labor Code of the Russian Federation, and their execution

Appendix 4

An example of drawing up an agreement to cancel an agreement to terminate an employment contract