The employer often decides to rename a number of employee positions in the staffing table. In one case, the company pursues the goal of bringing positions in accordance with the trends of the times (for example, the position of “salesperson” is renamed to the position of “sales manager”) with full preservation of job responsibilities, in the other - due to a change in the organizational structure of the company.
Making a decision to change the structure, staffing table, number of employees of an organization falls within the exclusive competence of the employer, who has the right to terminate an employment contract with an employee due to a reduction in the number or staff of the organization’s employees, subject to the established procedure for dismissal and guarantees against arbitrary dismissal (Definition Constitutional Court of the Russian Federation dated December 22, 2015 No. 2768-O).
Such conclusions are made by judges when considering labor disputes related to the legality of job reductions in the staff list (Appeal ruling of the Samara Regional Court dated September 19, 2016 No. 33-11721/2016 and the Supreme Court of the Republic of Tatarstan dated September 5, 2016 No. 33-14833/2016, decisions of Safonovsky District Court dated September 14, 2016 No. 2-2032/2016, Oktyabrsky District Court dated September 12, 2016 No. 2-2911/2016).
Important!
When both parties to the employment contract agree to such changes, no questions arise. Such a change is formalized by an additional agreement to the employment contract and does not require a two-month notice period for the employee (Article 72 of the Labor Code of the Russian Federation). A different situation arises when an employee does not agree to rename his position. LEGAL SERVICES FOR LEGAL ENTITIES
Often, an employee sees this as a change in his job function and the assignment of additional job responsibilities. But even with an unchanged job function, some employees are in no hurry to part with their “old” position.
WHAT ARE LABOR DISPUTES?
EXAMPLE No. 1
By order of JSC “Lutik”, in connection with the measures taken to optimize the work of the department, in order to increase the economic efficiency of activities, as well as in connection with the need to redistribute the load between employees as a result of a reduction in work, the position of a female employee was subject to exclusion from the staffing table. By the same order, a position with a lower official salary was introduced into the staffing table.
The employee was warned about the upcoming changes provided for in Article 74 of the Labor Code of the Russian Federation. The employee did not agree to work in the new position and after the expiration of the two-month period the employee was fired.
When considering a labor dispute, the judges analyzed the job descriptions of the “old” and newly introduced positions and concluded that the job responsibilities for these positions are different. These circumstances indicate that, in fact, in violation of the provisions of Article 74 of the Labor Code of the Russian Federation, there was a change in the employee’s labor function (change in functional (job) responsibilities).
On this basis, the judges concluded that the exclusion of the position occupied by the employee from the staffing table, with the simultaneous inclusion of another position in the staffing table, indicates a reduction in staff, and not a change in the essential terms of the employment contract while maintaining the position in the staffing table.
Important!
In this connection, in this case there were no grounds for applying the provisions of Article 74 of the Labor Code of the Russian Federation to the legal relations that arose.
MAINTENANCE OF PERSONNEL RECORDS
Let us recall that in accordance with clause 7, part 1, article 77 of the Labor Code of the Russian Federation, the basis for termination of an employment contract is the employee’s refusal to continue working in connection with a change in the terms of the employment contract determined by the parties (part 4 of article 74 of the Labor Code of the Russian Federation).
Article 72 of the Labor Code of the Russian Federation provides that changes to the terms of an employment contract determined by the parties are allowed only by agreement of the parties to the employment contract and such an agreement is concluded in writing.
But there are exceptions to this norm.
This provision provides for the possibility of changing the terms of the employment contract determined by the parties at the initiative of the employer in the cases specified in Article 74 of the Labor Code of the Russian Federation, in addition to changing the employee’s labor function.
The labor function also refers to the specific type of work assigned to the employee.
The concept of “labor function” differs in content from the concept of “job duties”. Labor duties determine the essence of the labor function performed by the employee, specify the type of work performed for a specific position (profession, specialty). The performance of labor duties does not require the employee to perform work in a different position, profession, specialty or qualification, and is related to the specific type of work assigned to the employee.
HR POLICY AUDIT
If a change in an employee’s job responsibilities requires him to perform work in a different position, profession, specialty, qualification, or changes the specific type of assigned work, then the employee’s job function will change.
Based on the foregoing, in law enforcement practice it is determined whether there are violations of the rights of an employee in cases of changes in his work duties (Appeal ruling of the Supreme Court of the Udmurt Republic dated June 15, 2015 No. 33-1943/2015).
Important!
A change in the position (its name) in the staffing table with a corresponding change in the direction of reducing job responsibilities with a 3-fold reduction in wages certainly indicates that as a result of the employer changing the staffing table, the previous job function was not preserved (Decision of the Pervomaisky District Court of Murmansk dated 05/02/2017 No. 2-1933/2017).
WHEN CAN AN EMPLOYEE CONTACT THE PROSECUTOR'S OFFICE FOR LABOR DISPUTES WITH AN EMPLOYER?
The situation is aggravated if a position occupied by an employee who is immune from layoff is subject to redundancy.
For example, if the employee is a single mother raising a child under the age of 14, and therefore, on the basis of Art. 261 of the Labor Code of the Russian Federation, termination of an employment contract with her at the initiative of the employer is not allowed.
Changing information about a legal entity: what you need to know about their state registration
Date of publication: 03/03/2014 12:30 (archive)
The street name or house number has changed. The general rule is: if the company has changed its location, it is necessary to make changes both to the constituent documents and to the unified state register of legal entities (USRLE). But there is one exception. It concerns a situation where only the street name or house number has changed, but the name of the locality or municipality remains the same. Under such circumstances, the constituent documents need not be changed.
But it is necessary to make changes to the state register. If this is not done, then tax inspectors will not be able to contact the organization at the address indicated in the Unified State Register of Legal Entities, which will give them grounds to liquidate the company through the court.
Directors were transferred to remote work
It is also advisable to make changes to the Unified State Register of Legal Entities in a situation where the general director began to work remotely. The fact is that the location of a legal entity is the place of its state registration (clause 2 of article 54 of the Civil Code of the Russian Federation). A company must be registered at the location of its permanent executive body, or a person who has the right to act on behalf of this organization without a power of attorney. This directly follows from paragraph 2 of Article 8 of the Federal Law of 08.08.01 No. 129-FZ “On State Registration of Legal Entities and Individual Entrepreneurs”. Thus, the location of an organization is, in essence, the workplace of its leader. And if it is located in an apartment, then the legal address indicated in the Unified State Register of Legal Entities must be this apartment. Otherwise, the director risks not receiving letters from the tax office, which in turn will lead to the liquidation of the company. We would like to add that registering a company at the director’s home address does not contradict the law.
The organization has changed its leader
When appointing a new director, president or other person authorized to act on behalf of the organization, changes must be made to the state register. To do this, you should submit an application in form No. P14001 (the forms of documents submitted for state registration of companies, individual entrepreneurs and peasant farms, as well as the requirements for their execution, were approved by order of the Federal Tax Service of Russia dated January 25, 2012 No. ММВ-7-6 / [email protected] ) , and indicate the current manager as the applicant. That is, the one who is being changed. His signature must be certified by a notary. In the application, it is necessary to fill out two sheets K: the first in relation to the former director, the second - in relation to the new director. On the first sheet K, in section 1 “Reason for entering information”, you need to put the number 2, which means “termination of authority”. Next, you need to fill out section 2, which provides information about the former manager specified in the Unified State Register of Legal Entities. On the second sheet K, in section 1 “Reason for entering information,” you should put the number 1, which means “assignment of authority.” Then you should fill out Section 3, which indicates information about the new manager, which will be entered into the state register. Please note: in the described situation, it is not necessary to provide any other documents other than form No. P14001. This means that decisions, protocols, orders for appointment and other papers do not need to be attached.
The director moved or received a new passport
In a situation where the manager remains the same, but information about him has changed, it is also necessary to provide an application in form No. P14001. On sheet K in section 1 “Reasons for entering information” you should put 3, which means “change of information about the person.” Next, you need to fill out section 2 and the corresponding fields of section 3. So, when changing the postal code, you need to fill out field 3.6.1.1, when changing the number and series of an identity document - field 3.5.2, etc.
At the same time, not any, but only some changes in information are subject to state registration. In particular, a change of address and passport data must be registered only if the manager is a foreign citizen or a stateless person. If the director has Russian citizenship, then there is no need to report the new passport data, as well as the new place of residence, to the Federal Tax Service.
In addition, you don’t have to inform the tax authorities about the extension of powers of a manager or other person who has the right to act on behalf of the organization.
In a limited liability company, the authorized capital has changed.
When increasing or decreasing the authorized capital of an LLC, it is necessary to make and register changes to the constituent documents. To do this, you need to submit an application in form No. P13001*. It is mandatory to fill out Sheet B, which is dedicated to information about the amount of the authorized capital. Plus, in form No. P13001 it is necessary to fill out sheets G, D, E, G, Z, I. They are intended for information about the participants of the company. Each of these sheets indicates the name or full name of the participant and data on his share: nominal value and amount in the form of a percentage or fraction. As for the application for amendments to the Unified State Register of Legal Entities (form No. P14001), it does not need to be submitted. The fact is that it also contains sheets intended for information about the participants. And since this information is already indicated in form No. P13001, it must be duplicated.
EXAMPLE No. 2
The employee had an employment relationship with MAU "RKTs" in the position of "chief economist".
The employer carried out a structural reorganization of the accounting and reporting department by introducing the positions of “economist” and “accounting and reporting economist” with the partial loss of some labor functions of the “chief economist” position.
For this reason, the employee was given a notice of the upcoming change in the terms of the employment contract determined by the parties, namely: changing the title of the position “chief economist” to “economist”, reassignment to the chief accountant, change in salary.
Amendments to the staffing table actually amounted to a change in organizational working conditions, since a department was excluded from it and functions were redistributed between the remaining departments.
DEBT COLLECTION IN MOSCOW
The employee did not agree to work in the new position of “economist” and was dismissed under clause 7 of Article 77 of the Labor Code of the Russian Federation.
Important!
The courts of all instances proceeded from the fact that the exclusion from the staffing table of the position “chief economist” in one division with the simultaneous inclusion of the position “economist” in the accounting and reporting department indicates a reduction in staff, and not a change in the essential terms of the employment contract with the plaintiff, which was the basis for dismissal due to a reduction in the number or staff of the organization’s employees in accordance with clause 2, part 1, article 81 of the Labor Code of the Russian Federation, but not clause 7 of article 77 of the Labor Code of the Russian Federation.
In addition, the employee is a single mother raising a young child and needs increased social protection, since she is the only person vested with parental rights and bearing parental responsibilities for the upbringing and maintenance of the child. And therefore, in accordance with Part 4 of Article 261 of the Labor Code of the Russian Federation, the termination of an employment contract with the specified person at the initiative of the employer was allowed in violation of the requirements of the law. Based on the above, the employee was reinstated in her previous position (Appeal ruling of the Kamchatka Regional Court dated September 29, 2016 No. 33-2354/2016).
WHAT IS THE RISK OF VIOLATING LABOR LAW?
The very fact of maintaining the functional necessity of the reduced position, in view of the assignment of corresponding job responsibilities to mid-level personnel, when reducing positions related to management, cannot indicate the illegality of measures to reduce staff, since the rationality of this personnel decision is attributed by the legislator to the discretion of the employer (Appeal Definition of Samara regional court dated March 28, 2017 No. 33-4383/2017).
SCHEDULED AND UNSCHEDULED INSPECTIONS BY LABOR INSPECTION: PROCEDURE FOR APPOINTMENT, CONDUCT, REGISTRATION
When should you change your business name?
According to Art. 54 of the Civil Code of the Russian Federation, the name of the company directly indicates the type of its activity and is enshrined in the charter document. The main reasons for changing it are:
- radical change of activity
- acquisition of a ready-made company whose name does not suit the new owners
- wrong choice of original name
- the court's decision
According to Art. 5, art. 17 of the Federal Law of 08.08.2001 No. 129-FZ, when renaming a company, information about its new name must be included in the charter while maintaining the information contained in the Unified State Register of Legal Entities.
A simpler name change procedure applies to companies that operate under a standard agreement. To do this, you need to write an application to amend the name of the enterprise, information about which is contained in the register. LLC participants do not need to adopt a standard decree.
