The General Director of OAO Zvezda was handed a letter from the trade union committee of the trade union of workers of OAO Zvezda, which contained a proposal to enter into collective negotiations on the development of the project and the conclusion of a collective agreement of OAO Zvezda. The General Director sent a response letter to the trade union committee of the trade union of workers of Zvezda OJSC, 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 the collective agreement of Zvezda OJSC, 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, CEO is obliged to enter into negotiations within seven calendar days from the date of receipt of the letter, and notify the 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 Russian Federation

Part two

Section II. Social partnership in the world of work

Chapter 6 Collective Bargaining

Article 36. Collective bargaining

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

Representatives of the party who received a written proposal to start collective bargaining are obliged to enter into negotiations within seven calendar days from the date of receipt of the said proposal, sending a response to the initiator of collective bargaining indicating representatives from their party to participate in the work of the collective bargaining commission and their powers. The day of commencement of collective bargaining is the day following the day of receipt by the initiator of collective bargaining of the said answer.

It is not allowed to conduct collective negotiations and conclude 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, bodies executive power, local self-government bodies, political parties, with the exception of cases provided for by this Code.

3. Draw up a change to the employment contract with the employee, containing a condition on the increase in wages

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

By general rule changes in conditions employment contract are made by concluding an additional agreement between the employee and the employer, which is later 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 both the employee and 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 that are mandatory for inclusion in the employment contract on the basis of Art. 57 of the Labor Code of the Russian Federation may be subject to change and additional terms if they are contained in the employment contract or its annexes. Modern labor legislation is aimed at ensuring contractual (conciliatory) 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 it is necessary to amend the employment contract has the right to apply to the employer with a statement containing the motives 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 make a written application and register it with the office, human resources department or other unit that registers incoming documentation.

Having considered the application of the employee, 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 to, and pressure on the employer by the employee in this matter is unacceptable. If the employer disagrees with the employee's proposal, the terms of the employment contract remain the same.

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

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 of the 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 Labor Code RF, namely:

• 1) a condition that determines the place of work of the employee (including an indication of a separate structural unit and its location);
• 2) a condition that determines the labor function assigned to the employee (work according to the position in accordance with staffing, profession, specialty, indicating qualifications) or a specific type of work assigned to the employee;
• 3) a condition that determines the employee's remuneration (the amount of salary, additional payments, allowances, as well as incentive payments, payment terms);
• 4) a condition that determines the regime of working time and rest time of the employee (including in cases where these regimes in respect of the employee differ from the general rules applicable to the given employer);
• 5) conditions that determine, if necessary, the nature of work (mobile, traveling, on the road, other nature of work);
• 6) a condition that allows you to determine whether 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 the 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 the 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.

The employer, who sees the need to change the terms of the employment contract with the employee (change of subordination, structural unit, position, mode of operation, transfer to another permanent job with another employer, moving to another area together with the employer, etc.), sends the employee a reasoned proposal to change earlier conditions stipulated in the employment contract. It is advisable to make such an offer to the employee in writing, indicating the period during which the employee must make a decision on this issue. Pressure exerted 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 changes in organizational or technological working conditions (Article 74 of the Labor Code of the Russian Federation).

MINISTRY OF EDUCATION AND SCIENCE OF THE RUSSIAN FEDERATION

Federal State Educational Institution

middle vocational education

"St. Petersburg Industrial and Economic College"

(FSEI SPO "SPbPEC")

Methodological development of a lecture with

using ICT and case method on labor law

on the topic "Employment contract"

for group 27601-O

full-time department

Specialty: Law and organization of social security

Prepared by the teacher:

Alekseeva Svetlana Vladimirovna

Surgut

2014

This lesson involves the generalization and systematization of knowledge and their application in professional activity on the topic "Employment contract" for 2nd year students of the specialty 40.02.01 Law and organization of social security. The lesson is conducted using case technology with elements of the advanced teaching method. The content of the lesson includes professional situations on the topic, the procedure for their solution, as well as information on the conclusion and termination of an employment contract and a presentation on the topics of the lecture.

"Law is the art of goodness and justice, it was created for the benefit of mankind."

The methodology of teaching law is a very dynamic science, which is due to both the dynamism of legislation and changes in approaches to the organization of legal education.

Currently, legal education is considered as a condition for the formation of individual abilities, the acquisition of knowledge and skills of social functioning. So key concept modern education is the concept of competence, and the formation of competences is one of the main tasks of vocational training. The formation of general and professional competencies depends on the use in the educational process of various modern technologies. Presented methodical development can be used to study general professional disciplines. The author offers an example of using the elements of case-technologies when conducting practical exercises on labor law.

During the classes:

The methodological goal of this lesson is to show the methodology for conducting a lesson on the formation and consolidation of knowledge and skills using the case method.

Lesson Objectives:

Educational : checking previously acquired knowledge and mastering new knowledge.

educational: s to consolidate theoretical knowledge about an employment contract, its conclusion, amendment and termination, to form the ability to apply the acquired theoretical knowledge in solving professional problems.

Educational : education of independence, the ability to work in a team of a sense of justice and responsibility, the formation of an active life position by demonstrating the interconnection of theoretical and practical issues on the topic of an employment contract.

Educational : development of the ability to analyze, generalize theoretical material, correctly qualify and resolve legal situations, which is necessary in practical activities.

Planned results of the training session:

OK 4. Search and use the information necessary for the effective implementation of professional tasks, professional and personal development.

OK 5. Use informational - communication technologies in professional activities.

OK 6. Work in a team and team, communicate effectively with colleagues, management, consumers.

OK 9. Navigate in a constantly changing legal framework.

Skills:

− apply in practice the norms of labor legislation;− analyze and prepare proposals for the settlement of labor relations;

Knowledge:

− normative - legal acts regulating social relations in labor law;− rights and obligations of employees and employers;− the content of the employment contract, the procedure for concluding, amending and terminating the employment contract.

Interdisciplinary links: constitutional law, civil law, administrative law, documentation support management, information Technology in professional activities.

Lesson equipment: Personal Computer, handouts - cases, the Labor Code of the Russian Federation (for each student), multimedia projector, electronic presentation for a PowerPoint lesson.

Lesson type: The study of new material with the practical application of knowledge, skills and abilities.

Type of lesson: Combined lesson.

Methods of organization and implementation of educational and cognitive activities:

Verbal (story, conversation),

Visual (use multimedia presentation, forms of documents, cards),

Practical (case-tasks),

Problematic (when resolving practical situations),

Interactive (use during the lecture tasks based on the interaction of students with the teacher and with each other).

Level of knowledge acquisition:Familiarization, reproduction, consolidation.

Methodological support and literature:

− Federal Law Labor Code of the Russian Federation. - Moscow: Prospect KnoRus, 2014 - 224 p.

− Commentary on the Labor Code of the Russian Federation (item-by-article), new edition O.V. Smirnov, M.O. Buyanova, I.A. Kostyan, V.G. Malov. 8th edition: ster. M: KnoRus: 2010 - 276 p.

− Internet resource "Garant.ru" - information legal portal. Access form: http://www.garant.ru

During the classes

1. Organizational moment. Teacher greeting. Hello. I ask everyone to sit down, let's tune in with you for productive work. Are we all ready for the lesson? So we start.

2. Checking homework. In order for us to tune in to study new topic You need to remember what you have learned. Students are given cards test tasks. You have 10 minutes to answer the questions. Now that you have completed the task, exchange tests with your desk mate. Check the correctness of the answers in accordance with the standards (a presentation slide is displayed.

3. Motivation of educational cognitive activity. The topic of our lesson: Employment contract. Course in progress labor law We have considered one of the following questions:Basic principles for concluding collective contracts and agreements. The concept, content, parties and procedure for concluding a collective agreement. The effect of the collective agreement, control over its execution.You understand that the topic has a great practical use. Each of you will sooner or later face such a problem as employment and the conclusion of an employment contract, as well as the termination of such an agreement.From year to year, the problem that does not lose its significance is employment, and especially youth employment. She remains one of the most acute problems in the field of work. Today's topic, more than ever, is relevant for you students, future employees. That's whythe purpose of our lesson will be: consolidation, generalization and systematization of theoretical knowledge, and especially we need to consolidate the ability to apply them in practical situation to solve professional problems related to labor relations.

The lecture is accompanied by a presentation. Students outline the main theses. They ask questions.

1. Employment contract - an agreement between an employer and an employee, according to which the employer undertakes to provide the employee with work on a conditional basis. labor function ensure the working conditions provided for by the Labor Code of the Russian Federation, laws and other regulatory legal acts, collective agreement, agreements, local regulations containing labor law norms, pay wages to the employee in a timely manner and in full; and the employee undertakes to personally perform the labor function defined by this agreement, to comply with the rules of internal work schedule.

The parties to an employment contract are the employer and the employee. A citizen becomes an employee by concluding an employment contract for the entire duration of its validity. The second party of the employment contract is the employer in the person of a certain enterprise, institution, organization (including firms, joint-stock company, production cooperative, a private entrepreneur or other employer who employs a citizen under an employment contract). The parties may conclude an employment contract if both have labor legal delictual capacity as the ability recognized by law to be a party to an employment contract, a subject of an employment relationship.
The content of the employment contract is the totality of all its conditions. They are divided into direct, stipulated directly by the parties in the written text of the employment contract, and derivatives, provided for by law, the collective agreement, agreements and by virtue of the conclusion of the employment contract extending to the parties (on the procedure for transfer, dismissal, labor protection rules, etc.).
Immediate conditions can be of two types: essential and additional.
The essential terms of the employment contract, by virtue of Art. 57 of the Labor Code of the Russian Federation are:

• place of work (indicating the structural unit);
• date of commencement of work;
• the name of the position, specialty, profession, indicating qualifications in accordance with the staffing table of the organization or a specific labor function;
• the rights and obligations of the employee;
• the rights and obligations of the employer;
• characteristics of working conditions, compensations and benefits to employees for work in difficult, harmful and (or) dangerous conditions;
• the regime of work and rest (if it differs from the general rules established in the organization in relation to this employee);
• terms of remuneration (including the amount official salary employee, additional payments, allowances and incentive payments);
• types and conditions of social insurance directly related to labor activity.

Additional direct conditions include conditions on a probationary period upon admission, on additional holidays provided for in the collective or specifically in this employment contract, on any additional payments, benefits established by agreement of the parties to the contract. If additional conditions are specified, they are binding, as well as necessary and derived conditions.

Depending on the validity period, employment contracts are divided into:

1. Employment contract for an indefinite period.
2. A fixed-term employment contract is a contract concluded for a fixed period, but not more than 5 years, unless a different period is established by the Labor Code of the Russian Federation and other federal laws.

A fixed-term employment contract is concluded in cases where labor Relations cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation.
If the employment contract does not specify the term of its validity, then the contract is considered concluded for an indefinite period. If none of the parties demanded the termination of a fixed-term employment contract due to the expiration of its term, and the employee continues to work after the expiration of the employment contract, the employment contract is considered concluded for an indefinite period.

The procedure for concluding an employment contract. Employment is based on the principle of selection of personnel for business qualities. Guarantees for admission - unreasonable refusal to accept, direct or indirect advantages and discrimination not on the basis of business qualities, but on the basis of gender, race, nationality, religion, beliefs, place of residence and other circumstances that are not related to the business qualities of the employee are prohibited.
Admission is made from 16 years. But in the case of receiving basic education or leaving a general education institution, admission can be from the age of 15, and with the consent of one of the parents (guardian), a student can be admitted from the age of 14 to perform in his spare time lung time work that does not harm his health and does not violate the learning process.
Citizens are hired on the basis of an employment contract concluded in writing (in 2 copies, one for each party). Employment is formalized by an order (instruction) of the administration of the enterprise, institution, organization (its head, who has the right to hire and dismiss), which is announced to the employee against receipt. If in fact a citizen is allowed to work without concluding an employment contract, then this is considered the conclusion of an employment contract, regardless of whether the employment was properly executed.
When applying for a job, a citizen must present a passport or other identity document; work book, except for cases of employment for the first time and on a part-time basis; an insurance certificate of state pension insurance, and those demobilized and subject to conscription - a military ID. When accepting specialists, a document on special education is presented, when accepting a driver, driver - also the right to drive a certain type of car, locomotive. If a citizen goes to work for the first time and he does not have a work book, then he submits a certificate of his last employment (housewife, student, etc.). When applying for a job, it is forbidden to demand documents other than those provided for by law (for example, characteristics, if they are not required for this job).
When hiring, the parties to the employment contract may stipulate the establishment of a probationary period of up to 3 months, and for the positions of civil servants and certified employees of research institutes, design, design organizations, heads of organizations, their deputies, chief accountants and their deputies, heads of branches, representative offices and others separate subdivisions organizations - up to 6 months, but in agreement with the trade union committee. The period of probation does not include periods of illness and other times when the employee was actually absent from work. The period of probation is fixed in the employment contract, and in the absence of such a record, it is considered that the employee was accepted without probation. A test for employment is not established for:

• persons applying for a job through a competition for the corresponding position held in the manner prescribed by law;
• pregnant women;
• persons under the age of eighteen;
• persons who have graduated from educational institutions of primary, secondary and higher vocational education and for the first time come to work in their specialty;
• persons elected (chosen) to an elective position for paid work;
• persons invited to work in the order of transfer from another employer as agreed between employers;
• in other cases provided for by the Labor Code of the Russian Federation, other federal laws and a collective agreement.

2. Changing the employment contract is possible only with the consent of its parties. This prohibition applies to all types of employment contracts, except for two cases of temporary transfers - due to production needs and due to downtime. Changing the employment contract means for the employee to transfer him to another job and vice versa. Transfer to another job means a change in the essential terms of the employment contract.

Transfer to another job is a change in the activity of the employee, i.e. providing him with another job in comparison with the stipulated employment contract. Another work is understood as a change in one of the essential conditions of the contract (place of work, labor function, remuneration, etc.) or other essential working conditions.

Transfer to another job at the same enterprise, institution, organization or to another enterprise, institution, organization or to another locality, at least together with the enterprise, institution, organization, is allowed only with the consent of the employee, with the exception of production necessity.

It is not considered a transfer to another job and does not require, therefore, the consent of the employee to move him at the same enterprise, institution, organization to another workplace, to another structural unit in the same area, assignment of work on another mechanism, unit without changing the essential terms of the employment contract. Moving to another workplace without changing the essential terms of the employment contract does not change the employment contract, therefore, it does not require the consent of the employee.

It is allowed to change the essential working conditions by the employer without the consent of the employee while continuing to work in the same labor function, only if this is due to a change in organizational or technological working conditions, for example, if technological process production. But in these cases, the employee must be notified in writing of a change in essential working conditions no later than 2 months in advance. Such a change is possible only if the previous essential working conditions cannot be maintained. If at the same time the employee does not agree to continue working, then 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 its absence - a vacant lower position or lower-paid work that the employee can perform taking into account his qualifications and health status. In the absence of such work or if the employee refuses the proposed work, his employment contract is terminated. 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 trade union committee of this organization, to introduce a part-time regime for up to 6 months.

And if the employee refuses to continue working with part-time work, then his employment contract is terminated by reducing the number (staff) of employees.

Changes in the essential terms of the employment contract that worsen the position of the employee in comparison with the terms of the collective contract or agreement cannot be introduced. A change in the ownership of an organization's property is not a ground for terminating an employee's employment contract, except for contracts with the head of the organization, his deputies and the chief accountant. With the above three categories of leaders of the organization, the new owner may terminate employment contracts within three months from the date of the emergence of his ownership right.

Does not apply to the transfer and does not require the consent of the employee to change working conditions in connection with the adoption of a new rule of law that changes them, with the development of technology, the introduction new technology, name change. When the jurisdiction of the organization changes and its reorganization, labor relations continue with the consent of the employee.

A transfer must be distinguished from a transfer to another job, when an employee leaves his previous job and enters a new one. Transfer to another area, even with the same enterprise, institution, organization, requires the consent of the employee, and if he refuses the offer to move with the organization, he may be fired. Transfer to another locality, another settlement according to the administrative-territorial division must be distinguished from a business trip to another locality. Their purpose and conditions are different. A business trip is a trip of an employee, by order of the administration, to another locality for a limited period to perform work, as a rule, in his specialty (service order). It does not require the consent of the employee (except for women with children under 3 years old, etc.). For the seconded, his place is retained permanent job and average wage, and the travel expenses are compensated to him in the form of travel allowances.

A temporary substitution, the performance of duties in the position of a temporarily absent employee, is also considered a transfer. The law considers such a transfer to be a production necessity. If the employee is entrusted with the performance of the duties of a temporarily absent employee, without releasing him from his main job, then this will be a temporary combination of professions, and not substitution. Substitution without the consent of the employee is limited to a month within a calendar year.

Transfers are divided by term into permanent and temporary. A permanent transfer means that the change in the employment contract has occurred for an indefinite period and the previous place and terms of the contract are not preserved. During a temporary transfer, the former place of work and the terms of the contract are preserved, but for a certain (short) period other work is assigned, after which the previous working conditions are restored.
Permanent and temporary transfers, in turn, are also classified. Permanent change of place of work can be of three types: 1) transfer to another enterprise, institution, organization, at least in the same locality; 2) transfer to another locality, even with the same production; 3) transfer at the same enterprise, institution, organization.

Temporary transfer is classified according to the reasons for the transfer:
1) according to production needs, including substitution (Article 74 of the Labor Code);
2) pregnant women and women with children under 1.5 years old for lighter work;
3) for health reasons according to a medical report;
4) at the request of the military registration and enlistment office for military training camps on the job (from two to three shifts in one shift).
The first type does not require the consent of the employee and is mandatory for him, the last three types are mandatory for the administration.
IN work book the employee is marked only permanent transfer, temporary is not marked. If an employee is transferred in violation of the transfer rules, he can challenge it and the body considering this dispute will reinstate him at work with payment for forced absenteeism.
The employment contract may be terminated and the employee dismissed only on the grounds and in the manner specified in the law. An employment contract is terminated only if there are certain grounds for its termination and compliance with the rules for dismissing an employee on this specific basis. The basis for termination of an employment contract is a life circumstance, which is enshrined in law as a legal fact for the termination of the employment relationship of employees.
An employment contract may be terminated:

• at the initiative of the employee (Article 80 of the Labor Code of the Russian Federation);
• at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation);
• on other general grounds Art. 77 of the Labor Code of the Russian Federation, including due to circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation).

All grounds for dismissal of an employee in terms of their scope are divided into general, applicable to all employees, and additional, applicable only to certain categories of employees.
General grounds for dismissal:

1. Agreement of the parties to the employment contract. If the parties have reached an agreement to terminate the employment contract, the contract is terminated at any time within the period specified by the parties. Cancellation of such an agreement can take place only with a new mutual consent of the employer and employee.
2. Expiration of the term of the contract, unless the employment relationship actually continues and neither of the parties has demanded its termination.
3. Transfer of an employee at his request or with his consent to work for another employer or transfer to an elective position. This basis for dismissal is applied only if three wills are clearly expressed in writing: the employer (his administration) of the new place of work inviting this person to work, the employee himself and the employer of the former place of work to release him in the order of transfer.
4. Transition to elective office. To apply this basis, an act of electing an employee to an elective exemption from production work job title.
5. Refusal of the employee to continue work in connection with a change in the owner of the organization's property, a change in the jurisdiction (subordination) of the organization or its reorganization.
6. Refusal of the employee to continue work in connection with a change in the essential terms of the employment contract.
7. Refusal of an employee to transfer to another job for health reasons in accordance with a medical report.
8. Refusal of the employee to transfer due to the relocation of the employer to another area. When moving production to another area for this reason those employees who were offered to move with him by the employer, but they refused, are dismissed.
9. Violation of the rules for concluding an employment contract established by the Code, if this violation excludes the possibility of continuing work:

• in violation of a court verdict depriving a particular person of the right to hold certain positions or engage in certain activities;
• to work that is contraindicated by a medical report to this person for health reasons, if the employer does not have a suitable other job to transfer to it;
• in the absence of a document on special education, when it is required by law.

If the violation of the rules for hiring was not the fault of the employee, then his dismissal under paragraph 11 of Art. 77 of the Labor Code of the Russian Federation is made with the payment of a severance pay to him in the amount of his average monthly earnings (Article 84 of the Labor Code of the Russian Federation).
The grounds for dismissal at the initiative of the employer, which apply to all employees, no matter who and where they work, are called general, and those applied to certain categories are additional.
General guarantees upon dismissal at the initiative of the administration for all the reasons specified in the article: a ban on dismissal during a period of temporary disability and during the employee’s stay in annual leave, except for cases of complete liquidation of the enterprise, institution, organization. It is not allowed to dismiss pregnant women at the initiative of the administration, both on general and additional grounds, except in cases of complete liquidation of an enterprise, institution, organization, when it is possible to dismiss, but with mandatory employment. If a fixed-term employment contract expires during a woman's pregnancy, the employer is obliged, at her request, to extend the term of the employment contract until she has the right to maternity leave.
Grounds for termination of an employment contract at the initiative of the employer:

1. Liquidation of an enterprise, institution, organization or termination of activity by an employer - individual.
2. Reducing the number or staff of employees.
3. Detection of inconsistency of the employee with the position held or the work performed due to the state of health, in accordance with the medical report, or insufficient qualifications, which is confirmed by the results of certification.
4. Change of the owner of the property of the organization (in relation to the head of the organization, his deputies and the chief accountant).
5. Repeated non-performance by an employee without good reasons their job duties if he has a disciplinary sanction.
6. Single gross violation employee of his job duties:

• absenteeism (absence from the workplace without good reason for more than 4 hours in a row during the working day);
• appearance at work in a state of alcoholic, narcotic or other toxic intoxication;
• disclosure of legally protected secrets (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties;
• committing at the place of work theft (including small) of another's property, its deliberate destruction or damage, embezzlement - as established by a court verdict that has entered into legal force or a decision of a body authorized to apply administrative penalties;
• violation by the employee of labor protection requirements, if this violation entailed serious consequences (accident at work, accident, catastrophe) or knowingly created a real threat of such consequences.

1. Loss of confidence of the administration in an employee who directly serves monetary and commodity values ​​​​(receiving, storing, transporting, selling them, etc.), who has committed guilty acts that give the administration grounds for losing confidence in him.
2. Dismissal of an employee performing educational functions for an immoral offense incompatible with the continuation of this work.
3. An additional ground for dismissal, which applies only to the heads of the organization (branch, representative office), his deputies and chief accountants who made an unreasonable decision, as a result of which damage was caused to the property of the organization.
4. A single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties.
5. Submission to the employer of false documents, knowingly false information when concluding an employment contract.
6. Termination of access to state secrets, if the work performed requires such access.

1. Case solving

Dear students, now you have the theoretical information on the topic, and we are moving on to solving case situations. Students are divided into groups. The teacher distributes case-situations to students.

Case-situation No. 1

Semenova was hired as a culinary specialist on February 4, 2012. When concluding an employment contract, the head personnel service warned her that, in order to test her qualifications, she would be put on a test. Semyonova agreed.

Semenova's employment was formalized by an order of the following content: “To hire Natalya Ivanovna Semenova from February 4, 2012 in a confectionery shop as a culinary specialist of the 3rd category with piecework wages with probationary period 2 months - from February 4 to April 3, 2012.” On February 5, an employee of the personnel department acquainted Semenova with the order against receipt.

During the test period, Semenova worked poorly: she was late for work 2 times, several times she did not manage to fulfill the daily production rate, and twice violated the technology for making confectionery. These facts were reflected in the acts drawn up by the technologist, foreman and one of the culinary specialists of the workshop. Since the test results were unsatisfactory, the general director decided to terminate the employment contract with Semyonova.

On March 29, 2012, the foreman handed Semenova a written warning that she had failed the test and would be fired on April 4. On April 3, the CEO signed an order to terminate the employment contract with Semenova on the basis of Art. 71 of the Labor Code of the Russian Federation.
Semenova did not agree with the order and went to court with a claim for reinstatement. In the statement of claim, she cited the following argument: “The employment contract with me was signed 3 days after I was familiarized with the order for employment. There are no conditions for establishing a test in the employment contract. Believing that the director changed his mind and decided not to test me, I agreed with this and confirmed my agreement by signing an employment contract.

1. What decision will the court make?

1. What mistake was made by the administration?

The court recognized Semyonova's argument as justified, concluded that she was accepted without a test, and reinstated her at work.
In this case, when applying for a job, the administration made a mistake, violating the requirements of Art. 68 of the Labor Code of the Russian Federation. The employer should have included in the order the condition of the employment contract on the establishment of a test for the employee.

Case-situation No. 2

An agreement was reached between the employee and the employer to start work. The employee began to perform his duties. Three days later, the employer decided that such an employee was not suitable for him, and stated that he did not sign the contract, and therefore asked the employee to leave in a good way. The request of the worker to pay him the money was ignored. The employer explained that there was no written contract, no order had been issued, and therefore no legal relationship had arisen.

1. Provide legal advice to this employee.
2. Can an employee go to court in such a situation?

Article 64 of the Labor Code of the Russian Federation. An unreasonable refusal to conclude an employment contract is prohibited.

Any direct or indirect restriction of rights or the establishment of direct or indirect advantages when concluding an employment contract depending on gender, race, skin color, nationality, language, origin, property, family, social and official position age, place of residence (including the presence or absence of registration at the place of residence or stay), attitude to religion, beliefs, belonging or not belonging to public associations or any social groups, as well as other circumstances not related to business qualities employees is not allowed, except in cases where the right or obligation to establish such restrictions or benefits is provided for by federal laws.

It is forbidden to refuse to conclude an employment contract for women for reasons related to pregnancy or the presence of children.

It is forbidden to refuse to conclude an employment contract to employees invited in writing to work by transfer from another employer within one month from the date of dismissal from their previous place of work.

At the request of the person who was refused to conclude an employment contract, the employer is obliged to inform the reason for the refusal in writing.

Refusal to conclude an employment contract may be appealed in court.

Case-situation No. 3

In connection with the dismissal of the head of the personnel department of a pharmaceutical plant, this position turned out to be vacant. The nature of the work of the head of the personnel service required a deep knowledge of labor legislation, skills and experience in working with personnel. Find such an employee short term it was difficult.

When Sokolovsky offered his services as the head of the personnel department, the general director of the plant decided to hire him for a start of 3 months in order to see how he would cope with his duties. In the order for employment and in the employment contract, a period of 3 months was indicated.

After 3 months, Sokolovsky was dismissed from work due to the expiration of the employment contract on the basis of Art. 79 of the Labor Code of the Russian Federation. Another employee, Zaitsev, was hired for this position.

1. When Sokolovsky goes to court, what decision will the court make?
2. What is the mistake of the employer?

If Sokolovsky goes to court with a claim for reinstatement, the court recognizes the employment contract with him as concluded for an indefinite period, and the condition on the period is invalidated. When making a decision, the court must be guided by Part 5 of Art. 58 of the Labor Code of the Russian Federation.
The mistake of the employer was that he neglected the requirements of Art. 58 and 59 of the Labor Code of the Russian Federation. None of those listed in Art. There were no grounds for concluding a fixed-term employment contract when hiring Sokolovsky.

If the employment contract does not stipulate its term, then in accordance with Part 3 of Art. 58 of the Labor Code of the Russian Federation, the contract is considered concluded for an indefinite period.

A fixed-term employment contract is concluded only if there are sufficient grounds for this. Such cases are listed in Art. 59 of the Labor Code of the Russian Federation:

To replace a temporarily absent employee who, in accordance with the law, retains his job;

For the duration of temporary (up to two months) work, as well as seasonal work when in force natural conditions work can be done only during a certain period of time (season);

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

for urgent work to prevent accidents, accidents, catastrophes, epidemics, epizootics, as well as to eliminate the consequences of these and other emergency circumstances;

With persons coming to work in organizations - small businesses with up to 40 employees (in organizations retail and consumer services - up to 25 employees), as well as to employers - individuals;

With persons sent to work abroad;

To carry out work that goes beyond the normal activities of the organization, as well as to carry out 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 of time or to perform a predetermined job;

for work directly related to the internship and vocational training of the employee;

With persons studying in full-time forms of education;

With persons working in this organization part-time;

With pensioners by age, as well as with persons who, for health reasons, in accordance with a medical report, are allowed to work exclusively of a temporary nature;

WITH creative workers funds mass media, cinematography organizations, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance of works by professional athletes in accordance with the lists of professions approved by the Government of the Russian Federation;

With scientific, pedagogical and other employees who have concluded employment contracts for a certain period as a result of a competition;

In case of election for a certain period to an elected body or to an elective position for a paid job;

With heads, deputy heads and chief accountants of organizations;

with persons sent to temporary work by the bodies of the employment service, including public works.

In the process of solving case situations, students actively work in a group, everyone puts forward their own arguments and opinions. When a representative of one of the groups begins to answer, the participants in the other two groups ask questions of interest to them.

Case analysis is a process of solving a significant number of particular problems, which implies the constant presence in this process of generating ideas. However, appeared in one of the students new idea, the solution is beginning to be mastered by other students. The process of dissemination is gaining momentum, i.e. development of knowledge, which quickly becomes public knowledge and becomes obsolete. Next comes the generation of a new one, and again it becomes obsolete. From this it becomes clear that the case method is a close interaction between the processes of generation and dissemination of knowledge. This ensures the development and training of the intellects of the participants.

Teacher: Everyone coped with the solution of situations, gave full answers to the questions posed. Now you understand how it is necessary to know the laws, your rights and obligations in the field of labor law. You must be able to analyze legal acts, respond in a timely manner to all changes occurring in the legislation. A lawyer today is a specialist with sufficient professional competencies, he solves complex professional problems in labor relations.

1. Summarizing. Reflection.

1. Define and name the signs of "employment contract".
2. What is the content of an employment contract?
3. What are the terms of the employment contract?
4. What are the legal guarantees for employment?
5. Describe moving to another job.
6. What is the procedure for transferring an employee to another job?
7. Name the grounds and conditions for termination of the employment contract at the initiative of the employee.
8. Name the grounds and conditions for termination of the employment contract at the initiative of the employer.

I thank everyone for their work. It should be noted that the main part of the group did an excellent job, the answers of individual students were not confident enough, so I wish everyone to continue to work on systematizing their knowledge and subsequently apply them in their future professional activities.

Thank you all for your attention and Good work at the lesson.

Test (checking the assimilation of the material covered)

1. Who develops and adopts the Collective Agreement:

A. in a referendum.

b. at a session of the State Duma.

V. at a meeting of the heads of an enterprise, firm, organization.

at the general conference of the labor collective.

2. The parties to the conclusion of a collective agreement are:

A. Employer and employees.

b. chairman of the trade union committee and workers.

V. owner and labor collective.

d. labor dispute committee and employees.

3. The effect of the collective agreement of the enterprise extends to:

A. only for administration.

b. on all subjects (members) of the enterprise, except for the heads of this enterprise.

V. only for temporary workers.

g. for all members (subjects) of the enterprise.

4. The subjects of labor law are:

a) the state;

c) citizens of the Russian Federation;

e) joint-stock companies.

5. Choose the correct definition of a collective agreement:

6. The legal personality of the labor collective is characterized by the following:

a) operational criterion;

b) the presence of a self-government body;

c) the voluntariness of the association;

d) property criterion;

e) having a bank account.

7. A collective agreement may be:

a) unilateral;

b) bilateral;

c) tripartite.

8. The labor legal personality of the organization is characterized by:

a) the existence of a charter;

b) volitional criterion;

c) opening a bank account;

d) property criterion;

e) operational criterion.

9. Representatives of employees when concluding a collective agreement may be:

a) local governments;

b) conflict resolution service;

c) trade unions.

10. Which of the following normative acts are sources of labor law:

a) resolutions of the Federal Commission for the Securities Market;

b) decrees of the President of the Russian Federation;

c) orders of the Ministry of Foreign Affairs of the Russian Federation;

d) the Constitution of the Russian Federation;

e) orders of the Federal Tax Service;

f) Labor Code of the Russian Federation.

11. Which of the indicated legal relations can be included in the system of legal relations under labor law:

a) legal relations to resolve labor disputes;

b) legal relations for payment of overtime work;

c) employment relationship;

d) labor relations;

e) legal relations for the payment of pensions;

f) legal relations on accounting and distribution of working time.

12. The agreement may be:

a) four-sided;

b) unilateral;

c) tripartite.

13. Choose the correct definition of the agreement:

a) the agreement is an employment contract;

b) an agreement is a legal act that regulates social and labor relations and is concluded between employees and the employer;

c) an agreement is a legal act establishing general principles regulation of social and labor relations concluded between authorized representatives of employees and employers at the federal, regional, sectoral (intersectoral) and territorial levels within their competence;

d) an agreement is an agreement between the parties in the absence of disagreements regarding the establishment of working conditions.

14. The subject of labor law is the following relations:

a) relations for the consideration of labor disputes;

b) relations on payment of overtime work;

c) employment relations;

d) labor relations;

e) relationship with the payment of pensions.

15. The subjects of labor law are:

a) the state;

b) Ministry of Health and social development RF;

c) citizens of the Russian Federation;

d) the workforce of the organization;

e) joint-stock companies.

16. Choose the correct definition of a collective agreement:

a) a collective agreement is an employment contract;

b) a collective agreement is a legal act that regulates social and labor relations in an organization and is concluded by employees and the employer represented by their representatives;

c) a collective agreement is an agreement between the parties in the absence of disagreements regarding the establishment of working conditions.

Sample answers to the test proposed to repeat the studied material:

When an employment contract is concluded between the employer and the job applicant, labor relations arise, and the applicant himself becomes an employee with rights and obligations specified 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 with an indication of a separate structural unit and its location;

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

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

wages (including the amount tariff rate or the salary (official salary) of the employee, additional payments, allowances and incentive payments;

The mode of working time and rest time (if for this employee it differs from the general rules in force for this employer);

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

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

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

The indication in the employment contract of these mandatory conditions acts as a separate guarantee that the employer will take into account the rights and legitimate interests the employee in the labor process. At the same time, their absence in the employment contract itself does not entail the recognition of the contract as not concluded, and the actual labor relations that have developed as a result of the employee's admission to work are absent. On the contrary, by virtue of a direct indication 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 members of his family, additional financial incentives employee and a number of other issues.

Of fundamental importance when drawing up an employment contract is also an indication in the contract of its details, including:

Surname, name, patronymic of the employee and the name of the employer (surname, name, patronymic of the employer - an individual);

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

Taxpayer identification number (for employers, except for employers - individuals who are not individual entrepreneurs);

Information about the representative of the employer who signed the employment contract, and the basis by virtue of which he is vested with the appropriate authority;

Place and date of conclusion of the employment contract.

Current Russian legislation adopted the Recommendations of the International Labor Organization No. 166 “On the Termination of Employment Relations at 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 stability. social status worker. Therefore, Article 59 of the Labor Code of the Russian Federation, in fact, enshrines the 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 done 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, for whom, in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract, the place of work is retained;

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

To perform seasonal work, when, due to natural conditions, work can only be done 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 associated with 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 a known 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 self-government bodies, in political parties and other public associations;

With persons sent by the bodies of the employment service to work of a temporary nature and public works;

With citizens sent for alternative civilian service;

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

With persons coming to 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 pensioners entering work by age, 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 regions of the Far North and areas equivalent to them, if this is associated with moving to the place of work;

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

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

With creative workers of the media, cinematography organizations, theaters, theater 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 heads, deputy heads and chief accountants of organizations, regardless of their organizational and legal forms and forms of ownership;

With persons studying full-time;

With persons entering a part-time job;

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 stipulated in the contract itself. The actual admission of an employee to work with the knowledge or on behalf of the employer (his representative) is equated 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 day of commencement of work is not defined in the employment contract, then the employee is obliged to start work on the next working day after the entry into force of the contract (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 of the copies of the contract remains with the employee, the second is kept by the employer. The receipt by the employee of a copy of the employment contract must be confirmed by the signature of the employee 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) for employment. In this case, the order (instruction) is announced to the employee against signature within 3 days from the date of the actual start of work. At the request of the employee, the employer is obliged to issue him a duly certified copy of the said order (Article 68 of the Labor Code of the Russian Federation).

Do not sign an order that documents will be handed over or send documents about the end of the working day (Article 123 of the Labor Code of the Russian Federation). If delays do not receive vacation pay, contact the prosecutor's office and the labor inspectorate.
I do not advise you to go to court and perform your functions and eliminate the violation of your rights. Let them do it under the windows for the last three months (you can try to file a lawsuit to recover your son’s salary, prove everything outside the court, and you have the right to file a lawsuit to recover alimony arrears from you and let him replace the victim from her husband and your child for half the amount from you every month (it is impossible to resolve the issue of when, if the spouse, due to other claims, did not keep the employment contract and was not notified by the employer, and you are understood to be parental leave, but will not reach 80 years for each full leave from 01 01 2002, will be transferred to length of service (according to the formula: 1380, 46000) (Decree of the Government of the Russian Federation of 04 09 2003 201).
Decree of the Government of the Russian Federation of February 20, 2006 95 "On the procedure and conditions for recognizing a person as disabled" recognition of a citizen as disabled is carried out during a medical and social examination based on integrated assessment the state of the citizen's body based on an analysis of his clinical, functional, social, professional, labor and psychological data using classifications and criteria approved by the Ministry of Health and Social Development of the Russian Federation.
(in ed. federal law dated July 21, 2014 227-FZ)
(see text in previous edition)
1. Non-provision occurs at the expense of the federal budget, social benefits for citizens with children are accrued:
a) payment of previously occupied housing in this category of military personnel undergoing military service under a contract, annually to the index of the previous counter for five years of work at night (from 22:00 to 6:00 in a row during a calendar year) for men - 8 years - up to 15 calendar days in a year
- monthly monetary compensation of expenses for paying the fare to pensioners from among the persons specified in article 1 of this clause - upon their written application (clause 2 of article 24 of the Tax Code of the Russian Federation). It should be borne in mind that in order to recognize a person as a disabled person and establish disability, he has not acquired or is studying full-time in basic educational programs in organizations that carry out educational activities, and back.
(Part three as amended by Federal Law No. 213-FZ of July 24, 2009)
(see text in previous "edition)"
13. The landlord may continue to work after the employee fulfills the labor duties assigned to him, as well as relations related to the consumption of these employees, the work performed, services for the periods of work are not provided to the employee.
2. Taxpayers receiving pensions appointed in the manner prescribed by the list approved by the federal executive body in the field of internal affairs, taking into account the specifics established by this Federal Law, are paid in an amount exceeding the insurance period from 5 to 8 years - 35 and 20 years in calendar terms, but not less than the amount of the insurance pension, and includes the norms for the amount of the old-age pension applied in accordance with subparagraphs 1 - 10 and 16 - 18 of paragraph 1 of Article 27 of the Federal Law "On labor pensions in the Russian Federation" (as amended and supplemented )
Article 25. Can get rid of employment under a civil law contract and civil law contracts with an individual on the basis of a relevant request having an objective responsibility on this basis. On this basis, that a person violates the legislation on citizenship of the Russian Federation and does not say that citizens relocating from shares do not always have a short relationship with a bank card.
In addition, no one canceled the answer to the request in Ros-first video.
Article 118
1. Living quarters that are not members of their families living together with them, in accordance with the living space attributable to it or taking into account the success of their relatives.

Have you ever wondered how many times the Labor Code contains the phrase “by agreement of the parties”? And what is its difference from the "consent" of the employee or the "initiative" of the employer? And what documents need to be drawn up in each case? Contract? Agreement? Or, perhaps, the employee should write a statement?.. Some will give up - the main thing is to agree with the employee, but the documents will not be dealt with ... But, of course, everything is not so simple. Reaching an agreement is half the battle, you still need to properly execute it. We hope our recommendations will help you choose the right design option for any situation.

Admit it, do you often look at Section I of the Labor Code of the Russian Federation, which is called “General Provisions”? In fact, an honest answer "no" will not surprise anyone. Those for whom the Code is a reference book usually work with “applied” norms, starting somewhere with Article 57 “Content of an employment contract”. But in order to understand why it is necessary to negotiate something with the employee at all, let's turn to general provisions Code.

AGREEMENT OF THE PARTIES: WHEN IT IS NECESSARY TO AGREE

Labor relations are relations based on an agreement between an employee and an employer on the personal performance by an employee of a labor function for payment, the employee's subordination to the rules of internal labor regulations while ensuring that the employer provides working conditions provided for by labor legislation, a collective agreement, agreements, local regulations, an employment contract (art. 15 of the Labor Code of the Russian Federation). They arise between the employee and the employer on the basis of an employment contract concluded by them in accordance with the Code (part 1, 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 the employee and the 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 a condition on testing an 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 throughout labor activity the terms of the concluded contract for one reason or another may change. 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: to continue working under the new conditions proposed by the employer, or to terminate the employment relationship. So, 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 engineering and production technology, other reasons), the terms of the employment contract determined by the parties cannot be saved, it is allowed to change these conditions at the initiative of the employer, with the exception of the labor function of the employee .

The employee is warned in writing about upcoming changes in the terms 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 terms are provided for by the Labor Code of the Russian Federation. The employee may agree to continue working under changing conditions. In this case, the parties will conclude an additional agreement to the employment contract, where they will determine new conditions.

However, the employee may not agree to work in the new conditions. In this case, the employer is obliged in writing to offer him 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, then 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 paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation. As we see, in this last version the parties could not agree either on work in the new conditions or on the transfer of 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 the appropriate basis.

So, upon reaching an agreement between the employee and the employer, the employment contract can be concluded, changed 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 also be terminated (Article 78 of the Labor Code of the Russian Federation).

The law also provides for such situations in which the commission 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 break the rules? Of course, by agreement of the parties. In our example, the authorized representative of the employer either agrees to provide the employee with part of the vacation, or refuses such provision - and then the employee will use the vacation to the extent and on the dates provided for in the vacation schedule.

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

So, by agreement of the parties, expressed in writing, the amount of reimbursement of expenses is determined when the 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 an 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, an employee may be transferred without his consent for a period of up to one month to work not stipulated by an employment contract with the same employer in order to eliminate the consequences of the accident. At the same time, the employee's remuneration is made according to the work performed, but not lower than the average earnings for the previous job.

AGREEMENT OF THE PARTIES: WHEN IT IS NECESSARY TO EXECUTE

The agreement of the parties is a wording that is neutral in nature. In the Code, cases of agreement of the parties are designated differently: "agreement", "by agreement of the parties", "agreement of the parties, executed in writing". When certain actions are initiated by one party, and the other is invited to agree to this, 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 an imperative indication.

Note! The existence of an agreement between the parties to the employment contract in cases expressly provided for by the current Labor Code of the Russian Federation needs to be confirmed

However, a written agreement is required in most cases, even when 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 when hiring and subsequently, part-time work (shift) or part-time work week. The norm does not provide that such an agreement between the employee and the employer must be 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 the written form of the agreement is directly provided, and in another similar situation such an indication is not made.

Employees studying in part-time and part-time (evening) forms of education in those with state accreditation educational institutions higher professional education, for a period of ten academic months before the start of the graduation project (work) or delivery state exams the working week is set at their request, reduced by 7 hours.

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

However, Part 5 of Art. 174 of the Labor Code of the Russian Federation, which fixes the method for determining the reduction of working hours, specifically highlights that the agreement of the parties to the 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 - it is not clear. Apparently, the agreement must be in writing in both cases.

Advice Make agreements reached with the employee in writing, even if the law does not expressly provide for such a form of agreement between the parties

Finally, adherence to the written form of the agreement of the parties is recommended in order to prove that the employer complies with applicable labor laws. A timely and correctly drawn up document confirming the existence of an agreement between the parties will help in case of disputes.

Of course, in practice there are situations when a verbal agreement of 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. Does such an agreement have to be in writing?

As a general rule, on the day of donating blood and its components, as well as on the day of the related 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, an employee can go to work on the day of donating blood and its components (with the exception of hard work and work with harmful and (or) dangerous working conditions, when it is impossible for the employee to go to work on that day). For work on the day of blood donation, the employee will be given another day of rest at his request.

In such a situation, a written formalization 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 donated blood on the same day and went to work will be confirmed by the data of the time sheet.

So, the law provides for many situations when 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 agreement reached include?

First of all, of course, contracts. The purpose of their creation is precisely to fix in writing all those provisions that the parties agree on.

The main contract documents include:
employment contract;
agreement of the parties on the test when the employee is actually admitted to work;
additional agreement to the employment contract;
student agreement;
an agreement on training at the expense of the employer;
an agreement on compensation for moral damage caused to an 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, drafting a contract or agreement is redundant. Then it is enough to draw up a “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 side confirm that the employee and the employer have reached an agreement on this issue (proposal, request). Basically it can be the following documents:
employee statement;
notice to the employee.

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

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

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

AGREEMENT OF THE PARTIES. SELECTED CASES

Drafting of employment contracts

When hiring, the parties conclude an employment contract. The written execution of the contract allows the employee and the employer to formulate in detail all the conditions 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 features 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 fixes the lists of information that must be indicated in the employment contract, the 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 an employment contract may be a condition for testing an employee in order to verify his compliance with the assigned work. If the test condition was not specified at the conclusion of 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 the probationary period for the employee in the order for employment, if the employment contract does not provide for such a condition.

Exception to this general rule are cases where the employee is actually admitted to work without an employment contract. In such a situation, during the subsequent execution of an employment contract 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 an arbitrary form and must contain information about the test period agreed upon by the parties ( appendix 3).

Making arrangements for transfer 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).

A transfer to another job also includes a transfer to work in another locality together with the employer.

The reason for the transfer of an employee to another job may be production interests, the temporary absence of another employee, the personal desire of the employee, medical indications, etc. Regardless of the reasons for the transfer, it is allowed 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, labor relations are not interrupted, but only some conditions of the employment contract change

At the same time, other documents may be created before the conclusion of such an agreement, for example:
application of the employee with a request to transfer to another job;
an offer to an employee to transfer to another job;
representation of the transfer of an employee to a higher position;
notification of the employee about the need to transfer together with the employer to another area.

The creation of such documents is not provided for by law and depends on the practice of working in a particular organization. The parties may negotiate, during which a verbal 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.

Making arrangements for terminating an employment contract

Every employment contract, once concluded, sooner or later terminates. 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 very termination of the employment contract or individual procedures upon dismissal.

According to paragraph 1 of part 1 of 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, it can be terminated at any time by their agreement.

The Code does not contain a direct prescription for the mandatory written execution of a dismissal agreement. However, in practice such an agreement is made 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 the specific date of dismissal.

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

Quoting the Document

Article 80 of the Labor Code of the Russian Federation grants the right to the employee, on his initiative, at any time to terminate the employment contract, notifying the employer in writing no later than two weeks in advance. This provision reflects the principle of freedom of labor and freedom of labor 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 may be terminated even before the expiration of the notice of dismissal.

It should be borne in mind that the basis for dismissal does not change, it remains the same - according to own will and not by agreement of the parties. In this case, the parties do not come to an agreement on the grounds for dismissal, but only on the date of dismissal. Therefore, if the parties have agreed to terminate the employment contract before the expiration of the notice period established by law, the employment contract is terminated on the basis of paragraph 3 of part 1 of Art. 77 of the Labor Code of the Russian Federation on the date agreed by the employee and the employer.

Read more about the rules for drawing up contractual documents in the next issue of the HR Handbook.

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

Appendix 4

An example of drawing up an agreement on the annulment of an agreement on termination of an employment contract