Transfer of director during reorganization by merger. New structural divisions are emerging. Separately about vacation

It is difficult for a small company to maintain a stable financial position, especially in difficult economic conditions. For this reason, such a form as accession is gaining increasing popularity. Becoming part of a larger economic entity allows you to solve many problems inherent in small businesses, and also opens up new opportunities for the company to expand its activities.

Features of reorganization in the form of merger of a legal entity

Essence and concept

Merger is a type of reorganization that involves the transfer of rights and obligations from one to another, during which the original company is subject to. The main feature of this type of reorganization is that, that is, the transfer of rights and obligations occurs in full, without the possibility of waiving any of them (for example,).

It is allowed for several companies to join one economic entity at once. But at the same time, the equality of their organizational legal forms, that is, cannot be attached to or, and vice versa.

The merger is considered legally completed at the time of making an entry about the company being merged in. From this date, the successor enters into new rights and obligations.

Features of reorganization in the form of merger of a legal entity are discussed in this video:

Norms

The accession procedure is regulated by the following legislative acts:

Law No. 129FZ “On State registration of legal entities and individual entrepreneurs" dated 08.08.2001;
Law No. 208FZ “On JSC” dated December 26, 1995;
Law No. 14FZ “On LLC” dated 02/08/1998;
Tax Code of the Russian Federation.
Civil Code of the Russian Federation.

The merger is associated with the assumption of serious responsibility on the part of the legal successor, since it is he who will have to answer for the obligations of the reorganized company. Therefore, it is worth assessing all the pros and cons of the procedure before making a final decision.

Advantages and disadvantages

Joining is widely popular due to a number of advantages:

Not attractive close attention tax service, in contrast to the standard one, which is often preceded.
This procedure less labor-intensive and takes less time than liquidation. The main reason is the lack of need, since the legal successor retains the previous data in the state register, changes are made only to it.
It can be carried out even with the presence of debts, including to the budget, because the obligations are transferred in full to the legal successor. This simplifies the process, since there is no need to collect.
If the established procedure is followed, the procedure is recognized as completely legal, which excludes attempts by third parties to invalidate it.

For all its advantages, this method of reorganization is not without its disadvantages:

The procedure may be suspended due to claims from creditors. To inform them, the reorganized company is obliged to place an announcement about the upcoming merger in the media.
There is a risk of the need for early repayment of debt if creditors make such a demand within 30 days from the date of publication of the announcement of the reorganization.

The company's management should assess the situation with creditors before deciding to merge with another company. If the risk of exposure early repayment requirements are too high, it is worth paying attention to other forms of reorganization.

Package of necessary documents

The main point when carrying out any legal procedure is the preparation of the necessary package of documents. In this case it should include:

application to the Federal Tax Service in form No. Р16003 (on exclusion from the Unified State Register of Legal Entities);
the decision to carry out reorganization (with a sole founder), or (drawn up by both the reorganized company and the legal successor);
affiliation agreement, which specifies the conditions for the procedure;

More on preparatory stage must be sent to the Federal Tax Service (within 3 days). Additionally, it is required to publish an advertisement twice in “ ” in order to inform creditors.

Territorial authorities have the right to establish additional requirements, so it is better to check the final list of documents with your inspection.

Application to the tax authorities

The application form in form No. Р16003 is available for download on the Federal Tax Service website. The document consists of the following subsections:

information about the affiliated legal entity;
information about the legal successor;
information about publications in the media;
information about the applicant.

The first two subsections are filled out based on data on companies contained in the Unified State Register of Legal Entities. It indicates the names, details, information about the numbers and dates of entries in the state register. Next, you must indicate the dates of publication of the announcement of the reorganization in the press.

The subsection “information about the applicant” records information about the representative submitting documents to the Federal Tax Service. Here your full name, information about the date and place of birth, details of your identity document, and place of residence are indicated. If a legal entity acts as a representative, its details are also entered.

Making a decision

Reorganization of a legal entity can begin only after a unanimous decision is made by all founders in favor of this event (clause 1 of Article 57 of the Civil Code of the Russian Federation). This decision is made at an extraordinary meeting of the founders (each of the parties), where the affiliation agreement and other organizational issues. If there is only one owner, he simply needs to draw up the appropriate document.

The decision must reflect:

method of reorganization;
the basis for the procedure (contract details);
details of both parties;
responsible person.

For clarity, let’s look at a sample decision of a sole founder.

SOLUTION #5

Sole participant of Aqua LLC

Agreement on merger during reorganization (sample)

As for, there are several options here:

Summation of the authorized capital of all participants in the reorganization.
Maintaining the previous size of the authorized capital of the legal successor with the repurchase of shares of the acquired companies.
Approval of the new size of the authorized capital and distribution of its shares at the general meeting of all participants.

Whatever method is chosen, it should be reflected in the accession agreement. A sample agreement can be downloaded here.

Order on reorganization

Another important organizational point is. The order must reflect that from a certain date the employees of the reorganized company will be transferred to the staff of the legal successor. This order must be familiarized with the signature of all employees, because some of them may not agree to move to a new company.

Order No. 15

On the reorganization of Aqua LLC

In connection with the reorganization of Aqua LLC in the form of merger with Soyuz LLC,

I ORDER:

All employees of Aqua LLC from September 13, 2017. considered to be working for Soyuz LLC.
Head of Human Resources Lavrova E.V. add new information to employment contracts and employee work books.
Secretary Voronina N.A. inform Lavrova E.V. with the text of the order until September 14, 2017.
I reserve control over the execution of the order.

Reason: certificate of termination of activity dated September 13, 2017.

Director Pavlov N.P.

Connection algorithm

The accession procedure includes a number of successive stages. Let's look at them in order.

Reorganization of a company by merger and its step-by-step instruction discussed in this video:

Preparation stage

At the preparatory stage, a meeting of the founders is held, at which a decision is made on the reorganization and its organizational aspects, fixed by agreement, are discussed. Also at this stage, employees are notified of the upcoming reorganization. According to Article 75 of the Labor Code of the Russian Federation, they are guaranteed employment in the successor company, but employees themselves may express a desire to quit, so they should be given enough time to search new job until the end of the reorganization.

An essential condition, without which the merger is impossible, is an inventory of the assets and liabilities of the reorganized company. The mandatory nature of inventory is regulated by clause 27 of the “Regulations on Accounting in the Russian Federation”, approved by Order of the Ministry of Finance No. 34n dated July 29, 1998. Based on the results obtained, a transfer deed is formed, according to which all property, rights and obligations of the original company will be transferred to the legal successor.

Notification stage

After preparing the main package of documents, regulatory authorities and creditors should be notified about the decision made. Within three days after the decision on reorganization is made, a notification must be sent to the Federal Tax Service. For this purpose, form No. P12003 is intended, which reflects:

the basis for the start of the reorganization, namely, decision-making;
method of reorganization;
the number of legal entities that will be available upon completion of the procedure;
information about the reorganized company;
information about the applicant.

The same form can also be used to notify the tax authorities of the cancellation of the planned reorganization. To do this, on the first page of the notification, “making a decision to cancel a previously made decision” is selected as the basis.

At this stage, publications are made in the media. It is also recommended to inform creditors additionally by sending them notification letters.

Completion stage

At the final stage, the final documentation is submitted to the regulatory authorities. First of all, you must provide it to the Pension Fund. They are submitted on time - no earlier than 1 month from the beginning of the reorganization, but no later than the day the documents are submitted to the Federal Tax Service on the termination of activities. It is not necessary to take a certificate confirming the provision of information to the Pension Fund, since the tax authorities independently request all the necessary information.

The first includes the following set of documents:

application in form P16003;
decision of the founders;
agreement of adhesion;
deed of transfer.

The second package of documents contains:

application in form P13001;
minutes of the general meeting of all participants in the reorganization;
new edition of the Charter (2 copies);
agreement of adhesion;
deed of transfer.

The final liquidation of the reorganized company and registration of changes in the charter of the legal successor can be carried out only after 3 months from the date of the start of the reorganization. This is exactly the period given for appealing the decision on accession (Article 60.1 of the Civil Code of the Russian Federation). Amendments to the Unified State Register of Legal Entities are carried out by the registering authorities within 5 days.

Thus, if there are no problems with documentation, the connection can be completed in just over 3 months.

Financial statements

Merger provides for the formation of final financial statements only by the reorganized company. Reporting is prepared the day before information about termination of activities is entered into the Unified State Register of Legal Entities. The merging company must close its profit and loss accounts, and use the net profit (if any) for the purposes specified in the merger agreement.

The successor only changes the number of assets and liabilities, which does not lead to an interruption of the current reporting period. Therefore, he does not need to generate final reports.

Until information about the termination of activities is entered into the state register, all current operations (payroll of employees, etc.) are subject to reflection in the balance sheet of the acquired company. That is, all expenses incurred during the reorganization process should also be included in the final financial statements.

Despite the apparent simplicity of the procedure and its short duration, accession requires serious preparation. As with any other type of reorganization, successful completion of the case requires a complete inventory of the company’s property and liabilities, careful preparation of a package of documents and settlement of the issue with employees and creditors.

Liquidation of enterprises by merger is also described in this video:

Personnel procedures during the reorganization of an organization (including in the form of affiliation) are drawn up in the following order.

1. Draw up and approve the staffing schedule of the successor organization. Changes in the staffing table may consist of the introduction of new and exclusion of previous structural units, positions, and professions. The staffing table is approved by order (instruction), which is signed by the head of the successor organization or a person authorized by him (Rostrud letter No. 276-6-0 dated February 5, 2007, Art. 57-58 of the Civil Code of the Russian Federation).

2. Notify of the upcoming reorganization those employees for whom it will entail a change in the terms of their employment contracts. Notifications must be drawn up in writing and handed to employees against signature no later than two months before the reorganization (i.e., in the manner prescribed for warning about changes in organizational or technological working conditions). It is advisable to provide a separate line in the notice in which the employee will mark whether he agrees or refuses to continue working in connection with the reorganization. If the employee refuses, this must be recorded in the notice (or in the employee’s application addressed to the head of the organization).

If the reorganization of the organization does not entail changes in the terms of employment contracts with employees, there is no need to notify them about it (part 2 of article 74, part 6 of article 75 Labor Code RF, letter of Rostrud No. 276-6-0 dated February 5, 2007).

3. Formalize the termination of employment contracts with employees who refused to continue working in connection with the reorganization of the organization. If the reorganization is accompanied by a reduction in personnel or staff, it is necessary to carry out the reduction procedure in accordance with Art. 180 of the Labor Code of the Russian Federation (part 4 of article 74, part 6 of article 75, clause 2 of part 1 of article 81, article 84.1 of the Labor Code of the Russian Federation, letter of Rostrud No. 276-6-0 dated February 5, 2007 ).

4. Issue an order in free form on amendments to personnel documents in connection with the reorganization of the organization.

5. If, as a result of the reorganization, the terms of employment contracts with employees change, draw up additional agreements to employment contracts in accordance with the order(for example, if due to reorganization the employee’s job title changes). If the reorganization of the organization does not affect the terms of the employees’ employment contracts, then there is no need to make changes to them.

During reorganization, the name of the organization may change. In this case, changes must also be made to the employees’ employment contracts in this regard, since the name of the organization is information that must be contained in the employment contract and be up to date (Article 72, Part 1, Article 72.1, Paragraph 2 Part 1 of Article 57 of the Labor Code of the Russian Federation).

6. Make the necessary entries in the workers’ work books, which continue to work after the reorganization. In particular, an entry is made in the work book about the reorganization of a legal entity with reference to the corresponding decision of the employer (letter of Rostrud No. 1553-6 dated September 5, 2006), about changing the name of the position, etc.

7. If, as a result of reorganization, the organization ceased its activities, it is necessary transfer all personnel documents for safekeeping to her legal successor. An exception is reorganization in the form of a spin-off, in which the successor needs to transfer only part personnel documents, since in this case the reorganized organization continues its activities and only part of its rights and obligations passes to the legal successor (Article 58 of the Civil Code of the Russian Federation, Part 9 of Article 23 Federal Law No. 125-FZ of October 22, 2004, clause 1 of the Order of the Government of the Russian Federation No. 358-r of March 21, 1994, part 2 of Art. 5, part 1 art. 8 of the Labor Code of the Russian Federation).

It should be taken into account that an employment contract may not be concluded with the general director, the sole founder of a legal entity (participant, shareholder) (in the opinion of Rostrud, it is not necessary to conclude one, letters of Rostrud No. 177-6-1 dated March 6, 2013, No. 2262 -6-1 dated December 28, 2006). In case of absence employment contract the procedures described above regarding changes to it during the reorganization of the organization, to to CEO do not apply.

Reorganization raises new personnel issues. It is necessary to develop documents for the successor and decide the fate of the staff: those who will not stay should be fired, and the rest should be agreed on working conditions

The company decided to reorganize itself (in the form of merger, accession, transformation, division, spin-off). The management instructs:

carry out activities directly related to the reorganization (notify tax office and creditors, register reorganization, etc.);
resolve personnel issues arising in the process of such reorganization.

The first thing to consider is that during a reorganization, employment relationships with employees do not automatically terminate. In other words, reorganization itself is not considered a basis for termination of employment contracts (Part 5 of Article 75 of the Labor Code of the Russian Federation). By the way, this is why there is no need to pay compensation for unused vacation. After all, it is believed that employees continue to work in the same organization. However, during the reorganization process, layoffs are still possible.

In any case, during the reorganization a number of issues arise in the area labor law and personnel document flow.

Personnel issues in any form of reorganization

In the process of reorganizing a legal entity (regardless of its form), it is necessary to carry out the following personnel measures:

2) develop documents regulating labor relations in the successor organization;

3) notify employees about the upcoming reorganization;

4) terminate employment contracts with employees who stop working in connection with the reorganization;

5) prepare documents for employees who continue to work after the reorganization;

6) transfer personnel documents to the successor organization.

How to draft a staffing table

Immediately after the company decides to reorganize, it makes sense to determine the structure, staffing and staffing level successor organization (i.e. the organization to which the rights and obligations of the reorganized entity will be transferred). To do this, you need to draw up a draft staffing table.

If the reorganization is accompanied by, their positions do not need to be included in the draft staffing table (letter of Rostrud dated February 5, 2007 No. 276-6-0).

How to develop personnel documents

It is important to draw up the necessary personnel documents as soon as possible, which will come into force after the completion of the reorganization (this must be done when reorganizing in any of the forms, with the exception of certain situations during the merger process). Otherwise, such documents will need to be drawn up when the employees of the reorganized company are actually working in the successor organization. Since there will be very little time to develop and analyze the provisions of these documents, the risk of errors and insufficient regulation of relations with employees will increase. This may subsequently lead to misunderstandings and labor disputes.

Until the reorganization is completed (i.e. before), it is worth developing the following documents: Internal labor regulations, Regulations on remuneration, Regulations on financial incentives, standard form of an employment contract.

It also makes sense to prepare in advance additional agreements to employment contracts, the terms of which will be changed during the reorganization process. However, the employer will need to sign such agreements after the reorganization is completed.

How to notify employees about an upcoming reorganization

First, all employees must be notified in advance. This is only necessary when organizational or technological working conditions change (work and rest schedules, equipment and production technology, etc.). However, in other cases the notification will be useful.

Secondly, there are situations where, in addition to notification, it is also necessary to obtain the employee’s written consent. This is necessary if a change in the terms of the contract falls within the criteria for transferring an employee to another job.

1. Notice. It is necessary to notify an employee when, as a result of reorganization, the terms of the employment contract concluded with him change for reasons related to a change in organizational or technological working conditions (Part 2 of Article 74 of the Labor Code of the Russian Federation). This must be done no later than two months before the planned date of completion of the reorganization (registration date this fact in the Unified State Register of Legal Entities). The notification is drawn up in any form (see sample 1 below).

Notice of reorganization (sample 1)

Along with the notification, it makes sense for the employee to be given an additional agreement to the employment contract (if it is drawn up in advance). This will make it possible to clearly demonstrate to the employee what changes in labor relations the reorganization will entail.

If an employee is satisfied with the upcoming changes, you can advise him:

sign an additional agreement before the reorganization is completed;
Leave a signed copy of the agreement with the HR department.

In this case, subsequently the successor organization (employer) will be able to quickly formalize personnel changes in connection with the reorganization. To do this, the employer will only need to sign additional agreements previously signed and left by the employees, as well as make the appropriate entries in the employees’ work books.

At the same time, the law does not oblige the employer to issue a notice of reorganization simultaneously with an additional agreement to the employment contract. In other words, you can notify employees even before they are drawn up. This tactic should be chosen when the reorganization needs to be carried out as quickly as possible. short term.

If organizational or technological working conditions remain the same, it is not necessary to notify the employee. However, it is better to do it anyway. The fact is that any employee has the right to refuse to continue working in connection with the reorganization of the organization (Part 6 of Article 75 of the Labor Code of the Russian Federation). To understand in advance whether an employee will continue to work in the successor organization, you need to inform him about the reorganization. It is advisable to do this in the same manner as for mandatory notification of employees (sample 2 below).

Notice of reorganization (sample 2)

2. Mandatory consent. These rules apply when an employee is transferred. That is, if as a result of the reorganization the following changes (Part 1 of Article 72.1 of the Labor Code of the Russian Federation):

employee’s labor function and (or)
structural unit specified in the employment contract, and (or)
the area in which the employee works, that is locality within its administrative-territorial boundaries (clause 16 of the resolution of the Plenum Supreme Court RF dated March 17, 2004 No. 2).

To transfer an employee, it is necessary to obtain his written consent to the transfer (Part 1, Article 72.1 of the Labor Code of the Russian Federation). It is advisable to do this in the following way: include a separate column in the reorganization notice where the employee must write whether he agrees to the transfer or not.

How to fire employees

During the reorganization process, an employee can be dismissed in two cases:

if the employee refuses to continue working in connection with the reorganization (Part 6 of Article 75 of the Labor Code of the Russian Federation);
if the reorganization is accompanied by a reduction in the number (staff) of the organization’s employees (clause 2, part 1, article 81 of the Labor Code of the Russian Federation).

Can a reorganized company, on its own initiative, dismiss employees on the basis of reorganization or liquidation? No, he can not. The fact is that reorganization itself is not considered grounds for dismissal. On the contrary, the law establishes that during reorganization, employment contracts with company employees are not terminated (Part 5, Article 75 of the Labor Code of the Russian Federation). If you dismiss an employee with reference specifically to reorganization (for example, in connection with the merger of one company with another), the dismissal will be considered illegal.

During reorganization, it is impossible to dismiss an employee even with reference to the liquidation of the organization, that is, on the basis of paragraph 1 of part 1 of Article 81 of the Labor Code of the Russian Federation. After all, during reorganization, the company does not cease its activities, but only transfers its rights and obligations in the manner of universal succession. In other words, reorganization cannot be equated with liquidation.

At the same time, a reorganized company may terminate an employment contract with an employee due to a reduction in the number or staff of the organization’s employees (clause 2, part 1, article 81 of the Labor Code of the Russian Federation).

1. The employee refuses to continue working due to the reorganization. The employer must obtain the employee's refusal to continue working. The employee can formalize such a refusal either in the form of an entry in the notice drawn up by the employer, or in the form of a separate statement in any form.

Based on the refusal, you must issue a dismissal order in Form No. T-8 (or in a self-developed form) and make an appropriate entry in work book employee (clause 15 of the Rules approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225).

2. Reorganization is accompanied by a reduction in the number or staff of the organization’s employees. The upcoming termination of the employment contract must be announced no later than two months before the upcoming reduction in the number (staff) of employees and possible termination employment contracts. And in case of probability mass layoffs employees - no later than three months before the start of the relevant activities (clause 2 of article 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1);

Let us recall that the Labor Code of the Russian Federation provides that the criteria for mass dismissal are determined in industry and (or) territorial agreements (Part 1 of Article 82 of the Labor Code of the Russian Federation). Many existing agreements use the criteria given in paragraph 1 of the Regulations, approved by Resolution of the Council of Ministers - Government of the Russian Federation of February 5, 1993 No. 99, as criteria for mass layoffs.

Such criteria boil down to the following. The organization is reducing:

50 or more people within 30 days;

200 or more people within 60 days;

500 or more people within 90 days;

1 percent total number working for 30 days in regions with a population of less than 5,000 people.

It is advisable to view the notification (message) form on the website of the territorial office of the employment service.

If a sample notification is not provided on the website, the message must be submitted in writing, be sure to indicate the position, profession, specialty (together with qualification requirements) and the terms of remuneration for each specific employee.

You also need to notify:

The elected body of the primary trade union organization (if there is one) - in writing, no later than two months before the upcoming reduction in the number (staff) of employees and possible termination of employment contracts, and if there is a likelihood of mass dismissal of employees - no later than three months before the beginning of relevant activities;

The dismissed employee - personally and against signature, and no less than two months before the dismissal (Part 2 of Article 180 of the Labor Code of the Russian Federation). In this case, the employer is obliged to offer the employee another available job - vacant positions, including vacant lower positions or lower paid work (part 3 of article 81, part 1 of article 180 of the Labor Code of the Russian Federation).

Upon termination of employment contracts, the organization must pay each employee dismissed due to a reduction in headcount (staff) severance pay in the amount of average monthly earnings (Part 1 of Article 178 of the Labor Code of the Russian Federation). In addition, the employee will retain his average monthly salary for the period of employment, but not more than two months from the date of dismissal (including severance pay).

By the way, an employee of a reorganized organization can be fired before two months have passed after the notice of dismissal due to a reduction in the number (staff) of the organization. The employer will have the right to dismiss the employee earlier deadline, if they are fulfilled following conditions(Part 3 of Article 180 of the Labor Code of the Russian Federation):

The employee will give written consent to terminate the employment contract before the expiration of two months from the date of notice of dismissal;

The employer will pay the employee additional compensation in the amount of average earnings, calculated in proportion to the time remaining before the expiration of a two-month period from the date of notice of dismissal.

In this case, the employee will retain the right to payments listed in Part 1 of Article 178 of the Labor Code of the Russian Federation.

How to formalize personnel changes in connection with reorganization

After the reorganization has been carried out (i.e., after the reorganization is registered), the head of the successor organization needs to issue an order on personnel changes.

If the reorganization was carried out in the form of a merger, accession, transformation or division, then the order must indicate that the employees of the organization that ceased operations during the reorganization process are considered employees of the legal successor. When reorganizing in the form of a spin-off, the order indicates that the employees of the reorganized entity who went to work for the successor are considered employees of the newly created company.

An order on personnel changes in connection with the reorganization is drawn up in free form.

In the order, the manager instructs the head of the personnel department (other authorized person):

Make changes to employee employment contracts (i.e. sign additional agreements in cases where necessary);

Make appropriate entries about the reorganization in the workers’ work books.

Additional agreements to employment contracts must be signed:

With employees who worked before registration of the reorganization in another company (reorganized legal entity). The content of the additional agreement is the changed details of the employer (Part 1 of Article 57 of the Labor Code of the Russian Federation);

With all employees whose terms of employment contracts have changed (Article 72 of the Labor Code of the Russian Federation). The content of the additional agreement is the new terms of the employment contract.

In both situations, you need to make an entry about the reorganization in the work book (letter of Rostrud dated September 5, 2006 No. 1553-6).

If the reorganization entailed the transfer of an employee, signing an additional agreement to the employment contract will not be enough. The employer will need to issue a transfer order using Form No. T-5 (No. T-5a) or an independently developed form.

The transfer order must indicate the employee’s previous and new positions. The date of the order must coincide with the date of registration of the reorganization. The employee must be familiarized with the order against signature, and it makes sense to do this on the first working day after the date of reorganization (i.e., on the day the order is issued).

An entry about the transfer must be made in the employee’s work book no later than a week from the date of the transfer (clause , Rules for maintaining work books).

How to transfer personnel documents to the successor organization

Personnel documents of a reorganized organization that ceases its activities must be kept by the successor organization. When separating, the legal successor stores part of the personnel documents of the reorganized entity.

The conditions and place of storage of archival documents of a reorganized organization must be determined by its founders or bodies authorized by them (Clause 9, Article 23 of the Federal Law of October 22, 2004 No. 125-FZ). Archival documents, in particular, include documents on personnel (clause 9 of article 23, clause 3 of article 3 of the Federal Law of October 22, 2004 No. 125-FZ).

Features of personnel changes during the merger process

The merger process always involves several organizations - two or more (Clause 1, Article 58 of the Civil Code of the Russian Federation). As a result, a new legal entity is created, for which it is necessary to develop a new staffing table and new personnel documents in advance.

It is advisable to do this together with specialists from each of the reorganized companies. In particular, it is important for the lawyer of the organization involved in the merger to interact with the lawyers of other organizations being reorganized.

Only with such interaction will it be possible to subsequently avoid disputes with employees and other negative consequences.

Features of personnel changes during the accession process

During reorganization in the form of merger, labor relations may change:

Or only for employees of the acquired organization;

Or for employees of both organizations - the one being joined and the main one (i.e., the one to which the joining is being carried out).

Labor relations change for employees of the acquired organization. This situation is typical when the main company:

Acquires a company with a similar business in another city or constituent entity of the Russian Federation (i.e. becomes its the only participant by acquiring shares or shares);

He wants to turn this company into his own.

After the main company evaluates the assets and acquires new company, she must conduct a personnel assessment: which employees from the acquired company will be needed by the future branch and which will not.

Most often, the management of the main company initially has a clear picture of how the business will be organized in the new territory. As a rule, the main company already has branches in other cities, an established structure of business processes, as well as an organizational structure adjusted to these processes and a standard section of the company’s staffing table with the number of employees required by the branch and a list of positions.

Before starting to work with the personnel of the acquired company, the main company must draw up a draft staffing section for the future branch with a specific number of employees in each division. The management of the main company needs to understand that those employees who are not indicated in the staffing table will be fired due to a reduction in the number (staff) of the organization's employees.

Then it is necessary to evaluate the working conditions in the acquired company and compare them with the working conditions in the main company: daily routine, wages, bonuses, additional holidays and so on.

To ensure that working conditions are the same in both reorganized companies, it makes sense to re-conclude employment contracts with employees of the acquired company in the version of the standard employment contract of the main company. In other words, the acquired company should change its working conditions so that they become similar to the working conditions in the main company. Moreover, it is advisable to do this even before carrying out legal measures for reorganization.

To do this, the main company must send to the newly acquired company all the necessary personnel documents (draft section of the staffing table for the future branch, Internal labor regulations in the main company, Regulations on remuneration, standard form of employment contract, etc.). Based on such documents, the head of the acquired company begins to transform it into a future branch: changes the staffing table, lays off employees, renegotiates employment contracts, etc.

If both companies have the same employment contracts and the same remuneration systems, all subsequent registration of labor relations will be much easier than in a situation where working conditions are different. Therefore, it makes sense to prepare the acquired company as a branch in advance and only then carry out merger activities in it.

Notification of employees of the acquired company, as well as translation and changes in personnel documents, is carried out according to general rules.

Labor relations change for employees of the main and affiliated organizations. This happens, as a rule, when companies independent from each other participate in the reorganization. different types activities and various structures.

In this case, the main company needs to create a new organizational structure and actually draw up a new staffing table. It is advisable to develop a staffing table together with employees (lawyers, personnel officers) of each of the reorganized companies.

Features of personnel changes during the separation process

The heads of companies created during the separation process need to issue an order on personnel changes in connection with the reorganization. This document should contain a list only of those employees of the reorganized company who are going to work for a specific successor, that is, in the company created during the division process.

Features of personnel changes during the separation process

The head of the company created during the spin-off process needs to issue an order on personnel changes in connection with the reorganization. This document should contain a list only of those employees of the reorganized company who are transferring to work for the created company (i.e., the successor).

The successor receives and stores personnel documents relating only to these employees (and not all employees of the reorganized entity).

Features of personnel changes in the transformation process

When reorganized in the form of transformation, labor and, if any, retain their effect. There are no grounds for terminating employment contracts with employees (Article , Labor Code of the Russian Federation).

Typically, reorganization does not change the conditions and procedure for remuneration of employees. But if the place of work changes - the company’s address, position, payment terms and other conditions, then additional agreements to the employment contracts must be drawn up on behalf of the new employer. Employees must be notified of upcoming changes no later than two months in advance. Also on behalf of the new employer. Employees must be notified in the same manner if there is a need to reduce staff.

You need to make an entry in your work books about the transfer of employees to a new company due to reorganization. Column 3 of the book may contain the following wording: “The closed joint-stock company “Mir” has been transformed into a limited liability company “Mir” (LLC “Mir”) since October 1, 2017.”

Personnel issues during reorganization, which takes place in a short time

It often happens that the company’s management sets the task of registering the reorganization within a specific time frame. At the same time, there is not enough time to carry out personnel activities and prepare personnel documents. Let's look at the most typical problems that can be encountered in the process of urgent reorganization and ways to solve them.

1. There are no documents regulating labor relations in the successor organization.

It is necessary to develop and approve, first of all, the following documents as soon as possible: Internal labor regulations, Regulations on remuneration, Regulations on material incentives, a standard form of an employment contract.

2. New structural divisions emerge

It is necessary to sign additional agreements with employees transferred to a new structural unit. You also need to approve the Regulations on this division (for example, the Regulations on the branch) and familiarize all its employees with the new job descriptions. It is likely that many documents will have to be completed retroactively, since employees will not be ready for such drastic changes, will take time out to familiarize themselves with the documents issued for signature, and also consult with the union.

3. Conflicts and misunderstandings arise with the trade union

It is important to explain to trade union leaders the complexity of the reorganization measures and all the nuances of the documents being drawn up. If you establish a relationship with the trade union, it, in turn, will be able to reassure workers and give them a guarantee that work and wage will remain at the same level.

4. Employees refuse to sign personnel documents and go on vacation and sick leave.

It makes sense to organize a house-to-house visit of employees to obtain the necessary signatures.

If in this case the employees refuse to sign, decisions regarding such personnel will need to be postponed until they return to work.

If such an exit does not take place soon (for example, if employees are on long-term leave to care for children), new employees can be hired to replace the employees by fixed-term contracts. However, as employees return from vacation, it will be necessary to carry out organizational and structural measures and change the staff.

5. Employees quit and/or argue with the employer

It is important to adhere to the principle of maximum openness for employees.

All lawyers of the company, including those who work in separate divisions, it makes sense to organize meetings with work collectives and clearly explain the procedure for carrying out reorganization activities. It is best to give such explanations using visual presentations, where each slide will contain information about a particular stage of the reorganization.

At the same time, you should not limit yourself to explanations and legal advice alone. The best option- this is when the company’s management and its other departments in addition to legal (personnel, financial, etc.) are involved in the process of interaction and dialogue with employees. Moreover, if the company has a corporate publication (website), it should be used to publish plans related to the reorganization and its results.

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We are undergoing a reorganization process. Our hospital No. 1 joins hospital No. 2. Development of a new general staffing schedule has begun. After the announcement of the reorganization at hospital No. 2, the chief accountant resigned. How to do it right. The merger hasn't happened yet. Hospital No. 2 hired a new chief accountant. But what about the chief accountant of hospital No. 1. As I understand it, during the reorganization (in our case through affiliation), first of all, the employees of our two hospitals should remain in their places, and not invite new employees from outside, and lay off our own. Hospital No. 2 explains that they urgently need a chief accountant, but there is no merger yet. Those. our chief accountant may be laid off or they will choose between two. Also for other employees. Or can we, no matter what, change our staff at this stage, before the new staffing table comes into force?

Answer

Answer to the question:

Until the completion of the reorganization and the entry into force of the new staffing table, the powers of the employers of both organizations continue, and the law does not prohibit them from hiring new employees.

Consequently, after the reorganization, one of the chief accountants will need to be fired.

At the same time, the possibility of dismissing the chief accountant due to reduction in the situation under consideration is very controversial. An organization cannot have two directors or two chief accountants at the same time, and in the event of the dismissal of the chief accountant due to layoffs during the two-month notice period of the layoff, the organization will have two chief accountants with the same amount of authority.

In this case, the safest option would be to dismiss one of the chief accountants by agreement of the parties with a reasonable payment monetary compensation(clause 1 of part 1 of article 77 of the Labor Code of the Russian Federation).

Since according to Art. 57 of the Civil Code of the Russian Federation, a legal entity is considered reorganized from the moment an entry is made in the Unified State Register of Legal Entities about the termination of the activities of the affiliated organization; the chief accountant must be fired on the date of entry of the corresponding entry in the Unified State Register of Legal Entities.

If one of the chief accountants refuses to continue working in connection with the reorganization of a legal entity, he should be dismissed under clause 6 of part 1 of Art. 77 Labor Code of the Russian Federation.

Details in the materials of the Personnel System:

1. Answer: How to prepare personnel documents when reorganizing an organization

Forms of reorganization

In what form can the reorganization of the organization be carried out?

Reorganization is regulated by the norms of the Civil Code of the Russian Federation and can occur in the forms, (). Regardless of the form of reorganization, labor relations with employees continue ().*

The procedure for preparing personnel documents during reorganization should be distinguished from the procedure.

The procedure for personnel changes during reorganization

What does the HR department need to do when reorganizing an organization?

To formalize personnel changes during reorganization:

Drawing up staffing schedules and notifying employees during reorganization

How to draw up a staffing table when reorganizing an organization

First, the manager determines the structure, staffing and staffing levels of the successor organization. This is what he is for. This is stated in the guidelines approved.

In the staffing table, reflect the introduction and exclusion of new structural units and positions. If the reorganization is accompanied by a reduction in the number of employees, do not include the positions of employees subject to reduction in the new staffing table. This follows from.

Registration of dismissals and changes in personnel documents in connection with the reorganization

How to fire an employee during an organization reorganization

Reorganization itself cannot be grounds for terminating an employment contract with an employee of the organization (). This is also noted by the courts, see. However, you can dismiss an employee in this situation:

If the reorganization is followed by ();

If an employee refuses to continue working due to reorganization ().

To formalize the dismissal of an employee, obtain his refusal to continue working in connection with the reorganization (). An employee can express his refusal by making an appropriate entry in or writing a separate statement in. Based on the formalized refusal, issue a dismissal order by or by and make an entry to the employee (Rules approved).

To formalize personnel changes in connection with the reorganization, issue an order in. For employees who agree to continue working after the reorganization, write a letter indicating the changed details of the employer (). In addition, new working conditions for employees, if they have been changed ().

Transfer during reorganization

How to process the transfer of an employee during an organization reorganization

If an employee’s division changes during reorganization and he agrees to continue working, (). At the same time, in the employee’s work book (clause, Rules, approved).

If an employee is transferred to another organization due to reorganization, then pay compensation for unused vacation he doesn't need it. This is explained by the fact that after the reorganization, the organization’s employment relationship with the employee does not end, that is, it is considered that the employee continues to work in the same organization ().

Transfer of personnel documents to the successor organization

How to transfer personnel documents to the successor organization during the reorganization of the organization

Personnel documents of a reorganized organization that ceases its activities must be kept by the successor organization to which its rights and obligations are transferred. An exception to this rule will be a reorganization in the form of a spin-off, in which only part of the personnel documents is transferred to the legal successor. This is due to the fact that during reorganization in this type, the reorganized organization continues its activities and only part of its rights and obligations passes to the legal successor. This conclusion can be drawn from the Civil Code of the Russian Federation.

An example of the preparation of personnel documents during reorganization in the form of affiliation

The general meeting of Alpha shareholders made a decision to reorganize Alpha in the form of a merger with the Hermes Trading Company.

The head of the organization approved new edition Hermes staffing table according to. At the same time, the working conditions of Alpha employees did not change.

All Alpha employees were sent notices of the reorganization, in which they recorded their consent to continue working in the new organization.

When a certificate of termination of Alpha’s activities was received as a result of reorganization in the form of affiliation, the head of the organization issued.

Based on the order, changes were made to personnel documents: head of the personnel department E.E. Gromova completed and made the appropriate records for employees.

The founders of Alpha designated the Hermes office as the place for storing personnel documents.

Ivan Shklovets,

Deputy Head Federal service on labor and employment

With respect and wishes for comfortable work, Yulia Meskhia,

HR System expert

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If you pay vacation pay for the day too late, the company will be fined 50,000 rubles. Reduce the notice period for layoffs by at least a day - the court will reinstate the employee at work. We have studied judicial practice and have prepared safe recommendations for you.

Due to ongoing changes in the Russian economy, it is becoming more difficult for many market participants to conduct their activities efficiently and without losses. The reasons can be different: the presence of stronger players, rising prices for raw materials, etc.

Therefore, many of them decide to join forces to create a larger enterprise that can survive in the current conditions and stay afloat. In addition, the reorganization is carried out in order to optimize taxation and management.

Existing methods of enterprise reorganization

Existing civil legislation provides 5 forms for reorganization of enterprises:

separation;
selection;
transformation;
merger;
accession.

Only the last two of them are suitable for merging organizations. Each has its own special rules for implementation.

If merger is a procedure in which the organizations participating in it cease to exist, and all their rights and obligations are transferred to a new (created as part of this process) legal entity, then accession a slightly different phenomenon. This is a form of reorganization in which, out of several persons participating in the procedure, at the end only one (joining) remains, and the rest (joining) cease to exist.

I choose one form of reorganization or another, its initiators proceed from the circumstances specific situation, the need to retain any of the participating companies, the complexity of the documentation, and, of course, the goal pursued by carrying out these procedures.

According to the Civil Code of the Russian Federation allowed when reorganizing, combine its various forms, as well as the participation of 2 or more organizations, including different organizational and legal ones.

It is no secret that mergers and acquisitions are carried out, among other things, in order to “liquidate” them. In this case, the process of affiliation is most acceptable, which is facilitated by the absence of the need to create a new organization.

If we calculate the time spent on carrying out reorganization actions in the form under consideration, we can establish that at least 3 months must be allocated for these procedures.

Various ways of reorganizing Joint Stock Companies are discussed in the following video story:

Mechanism of accession as part of the reorganization

This procedure is implemented through several stages.

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Making a decision on reorganization by each participant

Carrying out this stage depends on the OPF (organizational and legal form) of the enterprise. Thus, in an LLC, decision-making on this issue is within the competence of the general meeting of participants (GMS).

Thus, it is accompanied by the preparation, convening and holding of the General Assembly (as a rule, extraordinary). The said decision should not only determine the main conditions of the reorganization, but also approve the terms of the merger agreement, and if we are talking about the LLC being merged, then deed of transfer.

Notification of the registration authority (IFTS) about the start of the procedure

According to the requirements of the law, it is necessary to submit a notification in form P12003 and the corresponding decision on reorganization to the authorized bodies. At the same time, the law establishes a period for performing this action - no more than 3 working days from the date of the decision made by the last of the accession participants. It is the authorized representative of the latter, as a rule, who is the applicant when filing a notification.

Notification of creditors about the commencement of relevant procedures

In accordance with Art. 60 of the Civil Code of the Russian Federation, after the decision on reorganization is made, it is necessary to implement notification measures interested parties, namely creditors, government agencies, etc.

To do this (after registration by the tax authorities of a notification about the start of the process) in special media (Vestnik state registration) the corresponding announcement is printed. This is done twice (periodically - once a month). It should be taken into account that the notice is published from all participants, those of them who made the decision last or who were assigned such a responsibility by others.

Conclusion of a connection agreement, inventory and transfer of property

In cases provided for by law, a merger agreement is required, which regulates all the conditions of the reorganization, including its procedure and consequences. To conduct this, a special commission is formed, which conducts it and prepares the relevant documents.

Reconciliation of settlements with tax authorities of participants in the reorganization and other necessary actions. These activities may precede the notification of the Federal Tax Service and interested parties about the reorganization of companies. In addition, it is preparing deed of transfer, according to which the assets and liabilities of the acquired persons are alienated to the acquirer.

It is also necessary to note that, for example, in relation to an LLC, a rule has been established according to which it is required holding a joint OSG companies participating in the merger, where a decision is to be made on making changes to the acquiring company as provided for in the merger agreement and on electing new members of the company’s bodies. This stage does not stand out as independent, however, its existence must be taken into account.

State registration of changes in the information of the Unified State Register of Legal Entities on the reorganization that took place

As part of the implementation this stage it is necessary to take into account that the final registration of the merger is allowed no earlier than the moment when the deadline for filing complaints against decisions on reorganization expires, which is 3 months from the date of entry into the records of the beginning of the procedure. In addition, at least 30 days must have passed from the date of the last publication.

For registration introduce themselves:

applications (form No. P16003 and form P13001);
accession agreement;
deed of transfer;
decision to increase, amend the charter of the acquiring entity;
changes to the charter;
document confirming payment of state duty;
statement (if changes need to be made regarding controls, etc.);
other documents that may be required depending on the type of legal entity or the characteristics of its activities (for example, confirmation of changes in the issue of issue notes valuable papers, if there were any).

State registration period is no more than 5 working days. Traditionally, reorganization procedures are considered to be completed at this stage.

Solving personnel issues of enterprises

Important when implementing the connection are questions about personnel joining organizations. If possible, it is possible to transfer employees through dismissal and to the acquiring enterprise, or guided by Art. 75 Labor Code of the Russian Federation. Within the latter method, it is necessary to take into account that employees have the right to refuse to work in the acquiring organization, as a result of which they may be fired. In general, according to general rule, reorganization is not a basis for termination.

If it is not possible to accept the entire staff of the merging organizations, then a preliminary one must be carried out, otherwise, it will all go to the acceding one, and the latter will have to take measures to reduce the number of employees.

However, there are exceptions to the above rules, so the Labor Code of the Russian Federation provides that if the owner of the property of an enterprise changes (which actually happens upon merger), within three months from the date the new owner acquires rights, it is possible to terminate labor contracts with the managers (of the merger participants), their deputies and chief accountants, which is logical.

Some features of the procedure

To reorganize some categories legal entities are presented Additional requirements. Thus, antimonopoly legislation establishes cases when reorganization must be carried out with the prior consent of the relevant antimonopoly authority (FAS), for example, if amount of assets of all organizations participating in the merger will amount to more than 7 billion rubles.

If the specifics of the activities of the merging companies require availability of special permission (license), then the acquiring company has the right to carry it out only after re-issuance of licenses. This applies to insurance organizations, alcohol trade, communications companies, etc.
As a rule, the legislation establishes specific deadlines for re-registration of documentation after the completion of reorganization procedures. The affiliating organization may obtain a license if the conditions that are mandatory are maintained. Appropriate actions must be taken even if it already has a similar license, but, for example, for a different territory (if we are talking about organizing communications).

In a situation where as part of transferred assets there are results of intellectual activity, the rights to which are registered in the prescribed manner, it is also required to re-register to a new copyright holder.

Features of the enterprise reorganization procedure are discussed in this video:

Possible violations of the reorganization process

Issues related to cases where the reorganization was carried out in violation of the law are also important.

For example, decision on reorganization was adopted by the wrong governing body, or the rights of any participant/shareholder were violated. In these situations, there is a risk that the registration of the termination of the activities of the affiliated organizations will be invalidated.

It is also necessary to take into account that after the above decision was made by the court, the affiliating organization bears all the risks unreliability of information contained in the Unified State Register of Legal Entities, including compensation for losses caused to other persons as a result.

Consequences of violations of order obtaining FAS consent for reorganization will mean that the company can be liquidated or reorganized by a court decision (in the form of separation or division) if there is reason to believe that such merger has led or will lead to a restriction of competition, including the emergence of a dominant entity. And if consent was not requested, then those obligated to send petitions to the antimonopoly authorities will be subject to administrative liability in the form of a fine.