In Russian labor law there is such a category as the essential terms of the contract between the employer and the employee. They should be fixed in the contract and strictly executed by the parties to the agreement. However, scenarios are possible in which they will be adjusted. What are the types of essential conditions of the contract? What are the scenarios for legal changes to the relevant provisions of the contracts?
Determination of the essential terms of the contract
In Russian labor legislation, at least when it comes to federal level legal acts, such a term as “essential conditions of an employment contract” does not appear. At the same time, it is widespread in the practice of communication between lawyers, HR specialists, and trade union organizations. Employees themselves who are interested in their rights also often appeal to this term when communicating with the employer.
The essential terms of the employment contract is an unofficial concept, but practically significant for the corresponding category of legal relations. Modern lawyers believe that their list is set out in article 57 of the Labor Code of the Russian Federation. The concept of the essential terms of the contract is thus identified with the “mandatory” clauses of the relevant agreement between the employer and the employee - if we consider the wording present in the Labor Code of the Russian Federation. We study their list in more detail.
List of essential conditions
So, the essential conditions of the employment contract, under which lawyers understand the “mandatory” clauses of the contract, are presented in the Labor Code of the Russian Federation in the following aggregate.
This is the employee’s place of work. If an employee comes to work in a branch or representative office of a company located in another locality, then the coordinates of the corresponding object are indicated.
This is the labor function of man. That is, in this paragraph, the essence of the work performed is fixed in relation to the staffing positions in the company, features of the profession or specialization. The name of the position fixed in the employment contract must comply with the standards contained in the qualification manuals or professional standards - if it is assumed that the employee holding it should receive certain benefits.
This is the start date. If an employee signs a fixed-term contract, then his term of validity is also fixed, as well as factors determining that the contract is of this type. It is important that the circumstances of the conclusion of the fixed-term contract are consistent with federal law.
These are the conditions of remuneration. They can be fixed as tariff rate salary, various allowances or, for example, incentive transfers and surcharges.
This is the mode of the employee’s time at work, as well as his rest time - if the relevant aspects of legal relations with a particular specialist are not the same as the company’s general rules, which are the default for all employees.
These are guarantees and compensations provided for when working with harmful working conditions. Unless, of course, this implies a specific position. It is also necessary to include in the contract provisions characterizing the specifics of these conditions.
These are formulations that determine what the nature of the work being done is. It can be, for example, traveling - and if necessary, the relevant provisions in the employment contract should be introduced.
These are working conditions specific to a particular workplace.
The essential conditions of the employment contract are also the provisions in accordance with which the employee’s social insurance rules are fixed in accordance with the requirements of federal law.
In legal acts governing labor Relations, circumstances may be recorded suggesting the inclusion of other wordings in the contracts.
Entering missing information into the contract
It may well turn out that the HR specialist will forget to include certain essential conditions of the employment contract in the contract. In this case, will the agreement between the employee and the employer be considered invalid? No, just the opposite.
If for some reason the contract form does not include the essential conditions, the contract will need to be supplemented with the missing provisions. They can be fixed in the annex to the employment contract or in a separate agreement between the employee and the employer, which will then become an integral part of the contract.
Additional terms
Having studied what the essential essential conditions of an employment contract are, we can consider an aspect that reflects the possibility of inclusion in the contract of additional provisions not directly provided for by the Labor Code of the Russian Federation, but regularly practiced in many business sectors.
The main requirement for such conditions is that they should not worsen the position of the employee, if we compare them with the requirements stipulated by federal legislation, the collective labor contract and local acts approved by the organization. What formulations in question can be included in the contract? They relate to the following aspects of legal relations:
- clarification of a specific place of work;
- employee test;
- non-disclosure of state, official or commercial secret;
- the employee’s duties to work at the enterprise for a certain period after undergoing training, which is paid by the employer;
- additional employee insurance;
- improving the social status of the employee and his family;
- clarification of the rights and obligations of the employee and the employer in relation to the norms of the law;
- private pension provision for an employee.
Also, the employment contract can be supplemented (subject to agreement between the employee and the employer) with provisions reflecting the rights and obligations of the parties arising from the wording of the collective agreement.
Significance of material conditions
What do the essential conditions for concluding an agreement between the employer and the employee give in practice? First of all, it is the legal protection of the employee. Everything that is fixed in the contract is subject to obligatory execution by the parties. The content of the contract, the essential terms of the contract suggest that the employer does not have the right to require the employee to perform tasks that are not reflected in the contract. These are the provisions of the 60th article of the Labor Code of the Russian Federation.
But in some cases, the state of affairs in business may require the employer to take an initiative to adjust the provisions of contracts with employees. Consider this aspect in more detail. How is the change in the essential conditions of the employment contract?
Substantive adjustment
Article 72 of the Labor Code of the Russian Federation says that the terms of the contract can be changed only if both parties to the legal relationship agree to this in writing. However, this rule may be accompanied by a number of exceptions. For example, in the Labor Code of the Russian Federation there are provisions on which temporary transfers of an employee without his consent are permissible, as well as opportunities provided for by some clauses of the Code whereby an employer can still change the terms of an employment contract without agreement with the employee.
Change in technological conditions
The 73rd article of the Labor Code of the Russian Federation says that the employer has the right to initiate the adjustment of the provisions of the contract with a specialist if the working conditions at the enterprise — organizational, technological, have changed so much that the company’s fulfillment of its obligations is difficult. But at the same time, the employee’s labor function should not be changed. In addition, the firm will have to prove that changes in working conditions objectively take place.
For example, it can be a transfer of technological processes to other standards, reorganization of production, optimization of working conditions at workplaces based on the certification, modernization of equipment.
Arbitrage practice
An essential condition of the contract is, as we noted above, the provision on the harmful environment in the enterprise.
In the judicial practice of the Russian Federation there are cases whereby the adjustment of this paragraph was recognized as legitimate due to the fact that it occurred due to the improvement of the working environment and the facilitation of the performance of labor functions by employees. The employer excluded from contracts provisions on compensation for performing work in harmful conditions due to objective modernization of the technological process, and the court sided with it.
Let us consider other scenarios in the framework of which a change in the essential conditions of an employment contract is possible.
Transfer
Among the most common types of activities in the framework of legal relations involving the adjustment of contracts is the transfer of an employee to another job. It is possible only if the hired specialist has given written consent to this. In accordance with Article 72 of the Labor Code of the Russian Federation, there are three types of transfers: internal, one that involves the employee moving to another location, as well as the transfer of the employee to another company. True, the third scenario also implies a procedure for dismissal from the previous place of work that meets the legislative criteria.
Transfer without employee consent
There is an option in which the employee’s consent to the transfer may not be required. For example, if it is temporary, within a month. At the same time, the salary level should be no worse than in the current specialist position. Also, temporary transfer is possible only within the organization. As soon as the period of the relevant activities expires, the person must return to their original place of work.
Other work assignment
Another scenario involving a change in the essential terms of the contract is an assignment, through which the employer asks the specialist to perform work that is not directly provided for by the contract, but that is compatible with his current labor function. This aspect of legal relations may involve combining professions, expanding service areas, fulfilling the duties of an employee who is temporarily absent, or increasing the amount of work performed.
In accordance with Article 602 of the Labor Code of the Russian Federation, an employer may entrust a specialist with other work if:
- the employee will issue written consent to perform the relevant labor duties within the prescribed period and subject to a clear definition of the content and scope of work;
- the employer guarantees a surcharge for the fulfillment of additional obligations in accordance with the complexity and volume of tasks.
It can be noted that the Labor Code of the Russian Federation gives the right to any of the parties to the employment relationship to refuse to agree on additional work 3 days before it begins - in writing.
Moving
Another option in which the consent of the employee to change the terms of the contract is not required is a transfer. Some lawyers do not consider it an example of adjusting the essential provisions of a contract, but there is another point of view.The movement assumes that the labor function does not change, however, it may be accompanied by the fact that the employee will fulfill his duties at a new workplace, in another division of the company or on other equipment.
Notification of changes in working conditions
An employer who intends to change working conditions legally should notify employees about this 2 months before the proposed innovations. Some relief is given for IP - in accordance with 306th article Labor Code of the Russian Federation, entrepreneurs can warn employees about changes in contracts for 14 days. Religious organizations can send employees these notifications 7 days before innovations.
Employees have the right to refuse to continue work provided that the provisions of the contract are adjusted. In this case, the company must offer specialists a different job, which is related to their qualifications. At the same time, a new position may assume a lower salary than the current one. If a person agrees, an employee transfer is executed; if not, an employment contract, in accordance with 77th article of the Labor Code of the Russian Federation, ceases.
Change of working hours
There is another noteworthy scenario involving a change in the essential working conditions associated with the optimization of working hours. Correction of the relevant provisions of the contract is possible, for example, if the employer needs to prevent the mass dismissal of employees. That is, the company has the right, taking into account the position of the trade union, to introduce a mode of work in part-time work.
At the same time, remuneration of labor becomes proportional within 6 months. The employer can take such an initiative unilaterally, it does not require coordination on the part of employees. But if they refuse to fulfill their labor duties under the new conditions, the company may terminate the relationship with them, however, not under article 77 of the Labor Code of the Russian Federation, but under article 81, that is, to terminate the contract on condition of staff reduction. This scenario involves the payment of compensation to employees as required by law.
