When hiring a new employee, the employer always stipulates the range of duties that he will have to fulfill, in other words, his labor function. This contributes to the certainty and stability of labor relations. The employee knows all his duties and bears a certain responsibility for their implementation.
However, there are cases when, for one reason or another (organizational or economic nature), there is a need to formalize changes in the labor function. In this situation, it is important to comply with all legal requirements and document the process at the proper level. In the article we will discuss the professional standard, the labor function, as well as the documentary support for its change.
Labor function: concept
This concept is legislatively fixed in article 57 of the Labor Code of the Russian Federation. Within the meaning of this legal norm, a labor function should be understood as work in a certain position in accordance with the staffing, profession and specialty with the obligatory indication of qualifications, as well as the type of specific activity that is assigned to the employee. Thus, the concept has two interpretations according to the Labor Code of the Russian Federation.
The labor function is what is enshrined in the labor contract. The wording in it will depend on what interpretation of the concept you choose in each specific situation. So, with the first option, a clause, for example, should be included in the employment contract: “The employee agrees to perform the job as chief specialist (chief accountant, leading legal adviser, etc.).” The specific job responsibilities that the newly hired employee will perform in this case are the basis for creating the job description.
If the function of labor activity is interpreted according to the second option, then the entry in the labor contract also changes. For example, it may sound as follows: “This employee is entrusted with the performance of locksmith (installation, unloading, loading, etc.) operations.
Experts are of the opinion that, within the meaning of Article 15, part 2 of Article 57 of the Labor Code of the Russian Federation, the concepts of “job title” and “labor function” are not identical in content. In fact, the second is one of the characteristics of the first. The labor function is specified by specific job responsibilities.
Documentation of labor function
It has already been said above that the labor function of an employee is work on a job in accordance with the staffing, profession and specialty. In this case, the qualifications and the specific type of work assigned to the new employee are separately indicated.
Analyzing this definition, we can conclude that the labor function should be documented. First of all, this is done in the staff list, which indicates the profession and position. In addition, it is specified in the text of the concluded labor contract.
By signing it, the employee thereby expresses his agreement with the specified labor function, which the employer plans to assign to him. In order to change it in the future, mutual consent of both parties will be required. Even in the event of a change in technological or organizational conditions, labor legislation does not allow changes in the function of labor activity only at the request of the employer, i.e., unilaterally.
As a rule, the scope of the employment contract is limited and does not allow to describe in detail all the duties of the employee due to a particular profession or position. In this case, the job description comes to the aid of the employer, which can be issued in the form of an application or a separate local regulatory act.
Not so long ago, labor laws were amended with regard to the so-called Professional Standard. It is understood as a characteristic of the qualifications that an employee needs to carry out professional activities of any particular type, including and to perform a specific labor function. Professional standards are developed and applied in practice only in accordance with Articles 195.2, 195.3 of the Labor Code of the Russian Federation.
An effective contract is what?
The Government of the Russian Federation issued an order containing a program to improve the conditions regarding wages. It discloses the concept of an effective contract. In fact, this is the same classic contract (labor) with an employee, but it details not only payment conditions and job responsibilities, but also performance indicators, as well as criteria to evaluate its effectiveness, which in the future are the basis for calculating incentive payments measures of social support. That is, salary depends directly on the results of labor and the quality of municipal (state) services provided by the employee.
So, an effective contract is a formalized employment relationship based on:
- the presence in the institution of a task (state or municipal) and targets that characterize the effectiveness of the activity (they are approved by its founder);
- a system for assessing the effective fulfillment by an employee of his labor function (actions), which consists of a combination of indicators and criteria approved by the employer in the manner prescribed by law;
- a wage system that takes into account differences in the complexity of work performed by employees, as well as the quality and quantity of labor expended (it must be approved in the established manner by the employer);
- a labor standardization system approved by the employer in the established manner;
- detailed specification of the types of labor functions, taking into account the specifics inherent in each individual industry, in labor contracts and job responsibilities, criteria and indicators to assess the effectiveness of labor, as well as the conditions for its payment.
At present, for some fields of activity, a methodological basis has already been developed for the gradual introduction of an effective contract into practice: medical and educational institutions, the sphere of culture and social services.
Drawing up an employment contract: how to use a professional standard?
It doesn’t matter what you choose - an employment contract in its classic version or an effective contract - in any case, it indicates the employee’s labor functions - this is not a wish, but a necessity. To do everything right, you should be guided by professional standards.
An error is the indication in the employment contract of only the position, because it is not a labor function. The Labor Code of the Russian Federation in Article 57 regulates its content. It is emphasized separately that it is necessary to reflect in the text “work by job”, and not just its name. Often, employers violate the Labor Code of the Russian Federation, not suspecting that the penalty for this misconduct can be a very decent amount - from 50 to 100 thousand rubles. Moreover, they can be summed up if the inspector finds a violation in several labor contracts.
So, according to the Labor Code of the Russian Federation, the labor function should be prescribed, but how to do it right? By simply rewriting the job description into a standard employment contract, the employer actually ties his hands.Professional standards are called upon to help in this matter.
Contract - separately, job description - separately
Often it is possible to meet a situation when the job description of an employee is simply written in an employment contract. The employer is reinsured and complies with Art. 57 of the labor law, but this is not entirely correct.
With this approach, the instruction is part of the employment contract, which means that it will be possible to make changes only with the consent of the employee (it is given in writing), as they will relate directly to the change in the labor function - this confirms Article 74 of the Labor Code of the Russian Federation. When an employee does not agree, nothing can be changed and it is not possible to dismiss him either.
In order to reserve the possibility of making adjustments to the duties of the employee and at the same time comply with the requirements of labor legislation, the employer can reflect in the contract only general labor functions, which can be found in the professional standard. They are indicated depending on the skill level of the specialist. But in the job description, drawn up in a separate document, the employer already indicates the algorithm of actions of a particular employee.
How to distinguish a function from an action? In fact, everything is simple. A labor function is a task, and actions are specific operations, which together are an algorithm for its implementation.
Conversion of an employment contract
The general procedure for amending employment contracts is established by article 74 of the labor law. On the initiative of the employer (in other words, unilaterally), this can happen in the event of a change in working conditions of an organizational and technological nature. It is this provision that should be guided by the implementation of an effective contract.
With its introduction, the key changes will affect the terms of the employment contract regarding wages and duties of the employee. In this case, the employer must indicate the reasons for the adjustment and justify them as inevitable. It is necessary to refer to a change in the conditions relating to remuneration of labor, and the Program approved by the Government of the Russian Federation, which established clear criteria and performance indicators.
How to change the job description?
Can an employer change his job description without the consent of an employee? The answer is maybe. She is a local regulatory act. Correction is not subject to the labor function of the employee, but his actions. LC RF does not prohibit it. Moreover, there is no need to notify the employee for 2 months established by law and to obtain his consent to this procedure. It is enough to familiarize him with the updated job description. However, it is important to remember that when adding new labor actions to it, it is necessary to ensure that they do not contradict and correspond to the general labor functions prescribed in the contract. In practice, it often happens when, for example, the janitor, as they say, is “given the load” as a janitor. In this form, this situation is unacceptable.
If the employer wants to entrust the employee with any new labor functions that are not part of his professional standard, this will have to be done in another way. The algorithm of actions is as follows. First, with the consent of the employee, he adds the general labor function from the second professional standard to the labor contract, and only then begins the development of a new job description. Moreover, the employee will already have to meet the requirements of two professional standards.
The legislation allows a change in the labor function, this right of the employer and employee is enshrined in Article 72 of the Labor Code of the Russian Federation. This action takes shape by transferring to another job, and it can be both temporary and permanent.
Change of labor function for a while
The labor function can be changed for a certain period of time.Thus, article 72.2 of the labor law establishes that an employee can be transferred for a period of up to one year, or until the absent employee leaves for another job.
In this case, mutual written consent is required to change the labor function. Training (additional) in a new position may not be. In any case, all aspects of such a transfer are agreed upon by the parties, and their consent is always required. The exception is situations when there was a production accident, a man-made or natural disaster, and other exceptional cases that put the life and health of the population at risk. It is possible to make a transfer in this state of affairs without the consent of the employee, but the term should not exceed one month.
Changing the employee's job function on an ongoing basis
Not a temporary, but a permanent change in the labor function is also possible and can be caused by various kinds of circumstances: the initiative of the employee or employer, other objective reasons. In part, the same principles apply as in the previous case.
If the employer is the initiator of a permanent transfer, then he will have to obtain the consent of the employee. Registration is carried out according to Article 72.1 of the Labor Code of the Russian Federation. The exception is emergency situations.
The initiative may come from the employee, moreover, in certain cases, he may require a transfer, then the parties must document this.
In addition, a change in labor function in this form can be caused by such an objective factor as a medical opinion. In all the cases listed above, changes to the employment contract must be made.
Is a job renaming executed?
In practice, you can often find a situation where, for one reason or another, the name of the post changes. For example, there was a "OT engineer", but became a "OT specialist" or "driver-forwarding agent" - simply "driver".
As a rule, they change not only the name of the position, but also the range of duties along the way. In this case, we are talking about the transfer of the employee.
If there is a change of position without changing the job function, a transfer to another job is not formalized. Nevertheless, even partial renaming should be regarded as an adjustment to the employment contract. Therefore, it is important to reflect everything documented. First of all, changes are made to the existing staffing table, then to the labor contract with the employee and his workbook.
Is it necessary to bring the name of the position in accordance with the professional standard?
There is no direct indication that it is the employer's responsibility to rename all existing posts in his staffing table in accordance with suitable professional standards. However, if the organization plans to implement them in one way or another, it would be advisable to do so. It is necessary to issue an order of the appropriate content. Upcoming changes should be made familiar to all employees that they directly affect. We draw your attention to the fact that the law does not oblige the employer to implement professional standards immediately for all employees. The transition can be planned and phased.
What to do if an employee does not meet professional standards?
If you turn to the Labor Code, you can find in it an article about such a reason for dismissing an employee as non-compliance with professional standards. However, at the same time, a restriction is being established. Dismissal is possible at the request of the employee in the event that he does not correspond to the position he is occupying or has insufficient qualifications. This fact must be confirmed by certification.