Merger of organizations by joining personnel matters. Features of personnel changes during the merger. Implications for labor relations

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

Peculiarities of reorganization in the form of a takeover of a legal entity

Essence and concept

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

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

The merger is considered to be legally completed at the time the record of the merged company is made in. From this date, the assignee enters into new rights and obligations.

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

Norms

The accession procedure is governed by the following legislative acts:

• Law No. 129 FZ "On State. registration of legal entities and individual entrepreneurs "dated 08.08.2001;
• Law No. 208 FZ "On JSC" dated 26.12.1995;
• Law No. 14FZ "On LLC" dated 08.02.1998;
• Tax Code of the Russian Federation.
• Civil Code of the Russian Federation.

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

Advantages and disadvantages

Joining is widely popular due to its many advantages:

1. Does not attract close attention tax service, in contrast to the standard, which is often preceded.
2. This procedure is less laborious and takes less time than liquidation or. The main reason is the lack of need for, since the assignee retains the previous data in the state register, changes are made only to it.
3. It can be carried out even with the presence of debts, including to the budget, because the obligations in full are transferred to the assignee. This simplifies the process as there is no need to collect.
4. Subject to the established procedure, the procedure is recognized as completely legal, which excludes attempts by third parties to recognize it as invalid.

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

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

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

A package of required documents

The main point in the implementation of 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 the form No. Р16003 (on exclusion from the Unified State Register of Legal Entities);
• decision on reorganization (with a sole founder), or (drawn up by both the reorganized company and the legal successor);
• accession agreement, which prescribes the conditions for the procedure;

Still 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 the creditors.

Territorial authorities have the right to establish additional requirements, therefore, it is better to clarify the final list of documents in your inspection.

Application to the tax authorities

An application form according to Form No. Р16003 is available for download on the FTS website. The document consists of the following subsections:

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

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

The subsection "information about the applicant" records information about the representative filing documents with the Federal Tax Service. Here the full name, information about the date and place of birth, the details of the identity document, place of residence are indicated. If a legal entity acts as a representative, its and details are put down.

Making a decision

The reorganization of a legal entity can be started only after a unanimous decision has been 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 merger agreement and other organizational issues are also approved. If the owner is alone, he just needs to draw up the appropriate document.

The decision must necessarily reflect:

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

For clarity, consider a sample decision of the sole founder.

SOLUTION # 5

The only participant of LLC "Aqua"

Agreement on accession in case of reorganization (sample)

As for, several options are permissible here:

1. Summing up the authorized capitals of all participants in the reorganization.
2. Maintaining the previous size of the authorized capital of the legal successor with the purchase of shares in the acquired companies.
3. Approval of the new size of the authorized capital and distribution of its shares at the general meeting of all participants.

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

Reorganization order

Another important organizational point is. The order must state that from a certain date, the employees of the reorganized company are transferred to the state to the assignee. It is necessary to familiarize with this order under the signature of all employees, because some of them may not agree to transfer to a new company.

Order No. 15

On the reorganization of LLC "Aqua"

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

I ORDER:

1. All employees of LLC "Aqua" from 13.09.2017. to be considered as employed by Soyuz LLC.
2. To the head of the personnel department Lavrova E.V. enter new information into labor contracts and work books of employees.
3. Secretary Voronina N.A. to acquaint Lavrova E.V. with the text of the order until 09/14/2017.
4. I reserve control over the execution of the order.

Reason: certificate of termination of activities dated 09/13/2017.

Director N.P. Pavlov

Algorithm for the implementation of the connection

The joining procedure includes a number of successive stages. Let's consider them in order.

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

Preparation phase

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

An essential condition, without which it is impossible to carry out the merger, is an inventory of the assets and liabilities of the reorganized company. Mandatory inventory is regulated by clause 27 "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 deed of transfer is formed, according to which all property, rights and obligations of the original company will be transferred to the legal successor.

Notification phase

After the preparation of the main package of documents, the regulatory authorities and creditors should be notified of the decision. Within three days after the decision on reorganization is made, a notification must be sent to the Federal Tax Service. For this, the form No. Р12003 is intended, in which they reflect:

• the basis for the beginning of the reorganization, namely, the adoption of a decision;
• method of reorganization;
• the number of legal entities that will be at the end of the procedure;
• information about the reorganized company;
• information about the applicant.

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

At this stage, publications are made in the media. It is also recommended to inform the 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, it must be submitted to the FIU. They are submitted on time - not earlier than 1 month from the beginning of the reorganization, but also not 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 FIU, since the tax authorities independently request all the necessary information.

The first includes the following set of documents:

• application form R16003;
• decision of the founders;
• accession agreement;
• deed of transfer.

The second package of documents contains:

• application form R13001;
• minutes of the general meeting of all participants in the reorganization;
• new edition of the Charter (2 copies);
• accession agreement;
• deed of transfer.

The final liquidation of the reorganized company and registration of changes in the charter of the successor can be carried out only after 3 months from the date of the beginning of the reorganization. It is this period that is given to appeal the decision to join (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 registration authorities within 5 days.

Thus, in the absence of problems with the documentation, the connection can be completed in a little over 3 months.

Financial statements

The merger provides for the formation of the final financial statements only by the reorganized company. The reporting is prepared the day before the information on the termination of activities is entered into the Unified State Register of Legal Entities. The acquired company must close the profit and loss accounts and direct the net profit (if any) for the purposes stipulated by the merger agreement.

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

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

Despite the seeming simplicity of the procedure and its short duration, joining requires serious preparation. As with any other type of reorganization, the successful completion of a case requires a complete inventory of the company's property and obligations, a thorough preparation of the package of documents and the settlement of the issue with employees and creditors.

The liquidation of enterprises by joining is described in this video:

The reorganization raises new personnel issues. It is necessary to develop documents for the successor and decide the fate of the staff: dismiss those who will not remain, agree with the rest of the working conditions

The company made a decision on its reorganization (in the form of merger, acquisition, 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 a reorganization.

The first thing to consider is that the reorganization does not automatically end labor relations with employees. In other words, the reorganization itself is not considered a ground 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. At the same time, layoffs are still possible in the process of reorganization.

In any case, during the reorganization, a number of questions arise in the field labor law and HR workflow.

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 activities:

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

3) notify employees of the upcoming reorganization;

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

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

6) transfer personnel documents the successor organization.

How to draft a staffing table

Immediately after the company makes a decision on the reorganization, it makes sense to determine the structure, staffing and staffing of the successor organization (that is, 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, their positions do not need to be included in the draft staffing table (Rostrud letter dated February 5, 2007 No. 276-6-0).

How to develop HR 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 during the reorganization in any of the forms, with the exception of some situations during the accession process). Otherwise, such documents will need to be drawn up when the employees of the reorganized company will actually work in the successor organization. Since there will be very little time for the development and analysis of the provisions of these documents, the risk of errors and insufficient regulation of relations with employees will increase. This can subsequently lead to misunderstandings and labor disputes.

Until the moment when the reorganization is completed (i.e. before), it is worth developing the following documents: Internal Labor Regulations, Regulations on Remuneration, Regulations on material incentives, a typical form of an employment contract.

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

How to notify employees about the upcoming reorganization

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

Secondly, there are situations when, in addition to the notification, it is also required to obtain the written consent of the employee. This is necessary if the change in the terms of the contract meets the criteria for transferring an employee to another job.

1. Notice. It is necessary to notify the employee when, as a result of the reorganization, the conditions concluded with him employment contract will change for reasons associated with 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 (date of registration this fact in the Unified State Register of Legal Entities). The notice is free-form (see sample 1 below).

Reorganization notice (sample 1)

Together with the notification, it makes sense for the employee to issue an additional agreement to the employment contract (if it is drawn up in advance). This will visually demonstrate to the employee what changes in labor relations will entail the reorganization.

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

• sign an additional agreement even before the reorganization is completed;
• leave a signed copy of the agreement with the personnel department.

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

At the same time, the law does not oblige the employer to issue a notice of reorganization simultaneously with the supplementary 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 soon as possible.

If the organizational or technological working conditions remain the same, it is not necessary to notify the employee. However, it is better to do this 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 in the mandatory notification of employees (sample 2 below).

Reorganization notice (sample 2)

2. Mandatory consent. These rules apply when transferring an employee. That is, if, as a result of the reorganization, it changes (part 1 of article 72.1 of the Labor Code of the Russian Federation):

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

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

How to fire employees

During the reorganization process, an employee can be fired 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 the reorganization itself is not considered a ground for dismissal. On the contrary, the law establishes that upon reorganization, labor contracts with employees of the company are not terminated (part 5 of article 75 of the Labor Code of the Russian Federation). If you dismiss an employee with reference to the reorganization (for example, in connection with the merger of one company to another), the dismissal will be considered illegal.

In case of reorganization, an employee cannot be dismissed with reference to the liquidation of the organization, that is, on the basis of clause 1 of part 1 of article 81 Labor Code RF. Indeed, during reorganization, the company does not stop 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, the reorganized company may terminate the employment contract with the employee due to the 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 in connection with the reorganization... The employer needs to get the employee's refusal to continue working. The employee can issue such a refusal either in the form of an entry in the notification drawn up by the employer, or in the form of a separate application in any form.

Based on the refusal, you need to issue a dismissal order in the form No. T-8 (or in a self-developed form) and make the appropriate entry in the employee's work book (clause 15 of the Rules approved by the Government of the Russian Federation of April 16, 2003 No. 225).

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

Recall that the Labor Code of the Russian Federation provides that the criteria for mass dismissal are determined in sectoral and (or) territorial agreements (part 1 of article 82 of the Labor Code of the Russian Federation). Many existing agreements as criteria for mass dismissal use the criteria given in paragraph 1 of the Regulation approved by the Resolution of the Council of Ministers - the Government of the Russian Federation of February 5, 1993 No. 99.

These criteria boil down to the following. The organization shortens:

50 or more people within 30 days;

200 or more people for 60 days;

500 or more people for 90 days;

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

It is advisable to look at the form of notification (message) on the website of the territorial body of the employment service.

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

You also need to notify:

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

The dismissed employee - personally and under signature, and at least two months before the dismissal (part 2 of article 180 of the Labor Code of the Russian Federation). At the same time, the employer is obliged to offer the employee other available work - 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 who is dismissed due to a reduction in the number (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 the average monthly earnings 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 the reorganized organization can be dismissed until two months have expired after the warning of dismissal due to the reduction in the number (staff) of the organization. The employer will have the right to fire an employee earlier the deadline if will be executed 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 the notice of dismissal;

The employer will pay the employee additional compensation in the amount of average earnings, calculated in proportion to the time remaining until the expiration of two months from the date of the notice of dismissal.

At the same time, 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 issue personnel changes in connection with the reorganization

After the reorganization (that is, 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, acquisition, transformation or division, then the order must indicate that the employees of the organization that ceased activities in the process of reorganization are considered employees of the assignee. When reorganizing in the form of separation, the order indicates that the employees of the reorganized entity who have transferred to work for the legal successor are considered employees of the newly created company.

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

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

Make changes to the employment contracts of employees (i.e., sign additional agreements in cases where it is necessary);

Make the appropriate records of the reorganization in the work books of employees.

Additional agreements to employment contracts must be signed:

With employees who worked before the registration of the reorganization in another company (reorganized legal entity). The content of the supplementary 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 supplementary agreement is the new terms of the employment contract.

In both situations, it is necessary to make a record of the reorganization in the work book (letter from Rostrud dated September 5, 2006 No. 1553-6).

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

In the transfer order, you must indicate the previous and new position of the employee. The date of the order must coincide with the date of registration of the reorganization. The employee must be familiarized with the order for signature, and it makes sense to do this on the first working day after the date of the reorganization (that is, on the day the order is issued).

The record of the transfer must be entered into the employee's work book no later than one week from the date of the transfer (paragraph, of the Rules for maintaining work books).

How to transfer personnel documents to the successor organization

Personnel documents of a reorganized organization that ceases to operate should be kept by the successor organization. Upon separation, the assignee stores part of the personnel documents of the reorganized entity.

The conditions and place of storage of archival documents of the reorganized organization must be determined by its founders or their authorized bodies (clause 9 of 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 Federal law dated October 22, 2004 No. 125-FZ).

Features of personnel changes during the merger

Several organizations are always involved in the merger process - two or more (clause 1 of 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 the specialists of each of the reorganized companies. In particular, it is important for the lawyer of the merging organization to interact with the lawyers of other reorganized organizations.

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

Features of personnel changes during the accession process

In case of reorganization in the form of accession, labor legal relations may change:

Or only from employees of the affiliated organization;

Or for employees of both organizations - the affiliate and the main one (that is, the one to which the affiliation is carried out).

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

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

He wants to turn this company into his.

After the parent company evaluates the assets and acquires new company, she should conduct a staff 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 for these processes and a typical section of the company's staffing table with the required number of employees and a list of positions for the branch.

Before starting to work with the personnel of the affiliated company, the main company must draw up a draft section of the staffing table 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 designated in staffing table will be dismissed due to the reduction in the number (staff) of the organization's employees.

Then it is necessary to assess the working conditions in the purchased company and compare with the working conditions in the main company: daily routine, wages, bonuses, additional vacations, etc.

In order for the working conditions to be the same in both reorganized companies, it makes sense to renegotiate employment contracts with the employees of the acquired company in the version of the standard employment contract of the parent company. In other words, the merged company should change the working conditions in such a way that they become similar to those of the parent company. Moreover, it is advisable to do this even before the legal measures for the reorganization are carried out.

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

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

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

Labor relations change for the employees of the main and affiliated organizations. This happens, as a rule, when companies that are independent from each other participate in the reorganization. different kinds 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 the staffing table jointly with the employees (lawyers, personnel officers) of each of the reorganized companies.

Features of personnel changes in the separation process

The heads of companies created in the process of separation need to issue an order on personnel changes in connection with the reorganization. In this document, it is necessary to provide a list of only those employees of the reorganized company who go to work for a specific legal successor, that is, in the company created in the process of separation.

Features of personnel changes in the selection process

The head of the company created in the process of spin-off needs to issue an order on personnel changes in connection with the reorganization. In this document, it is necessary to provide a list of only those employees of the reorganized company who move to work in the created company (i.e. to the legal successor).

The assignee receives and maintains 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 (Art., Labor Code of the Russian Federation).

Usually, the reorganization does not change the conditions and procedures for remuneration of employees. But if the place of work changes - the address of the company, position, terms of remuneration and other conditions, then additional agreements to labor contracts must be drawn up on behalf of the new employer. No later than two months before this, it is necessary to notify employees of upcoming changes. Also on behalf of the new employer. In the same manner, it is necessary to notify employees if it becomes necessary to reduce the staff.

In the work books, you need to make an entry about the transfer of employees to a new company in connection with the reorganization. Column 3 of the book may contain the following wording: "The closed joint-stock company" Mir "from October 1, 2017 was transformed into a limited liability company" Mir "(LLC" Mir ")".

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 take a look at the most common problems that can be encountered during an urgent reorganization and how 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 units

It is necessary to sign additional agreements with employees transferred to a new structural unit. You also need to approve the Regulation on this unit (for example, the Regulation on the branch) and familiarize all its employees with the new job descriptions... It is likely that many documents will have to be processed retroactively, as employees will not be ready for such drastic changes, will take timeouts to review the documents issued for signature, as well as consult with the trade union.

3. Conflicts and misunderstandings arise with the union

It is important to explain to the trade union leaders all the complexity of the reorganization measures and all the nuances of the documents being drawn up. Building relationships with the union can in turn reassure workers and give them assurance that work and wages will remain the same.

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

It makes sense to organize a tour of employees' homes in order to obtain the necessary signatures.

If in this case the employees refuse to sign, the decision-making regarding such personnel will need to be postponed until they go to work.

If such an exit does not take place soon (for example, if employees are on long leave to care for children), new employees can be hired in place of employees according to fixed-term contracts... However, as employees leave their vacations, 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 to employees.

All lawyers of the company, including those who work in separate subdivisions, it makes sense to organize meetings with labor collectives and clearly explain the procedure for carrying out reorganization measures. The best way to do this is through visual presentations, where each slide contains information about a particular stage of the reorganization.

At the same time, one should not be limited only with explanations and legal advice. The best option- this is when the management of the company and its other departments besides the legal one (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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The company is planning a reorganization or has already started this process. In addition to preparing the basic documents, it is important not to forget about the details. In particular, about what needs to be communicated about the decision to employees. Read about the risks of non-compliance with this requirement, and whether it is possible to terminate the employment contract with the employee in connection with the reorganization in this article.

With any type of reorganization (merger, acquisition, division, spin-off, transformation), the company's management, as well as the legal and accounting department, must both observe the basic stages of the reorganization and take into account many nuances. Despite the fact that the reorganization procedure has now become much simpler, the new practice has not yet been developed. Therefore, on a number of issues, many companies try to adhere to approximately the same work patterns (in terms of drawing up documents, reconciliation statements, etc.). In the process of solving financial and organizational issues, some small parts, especially not affecting the registration of reorganizations and the execution of basic documents, are easy to miss. One such important detail is the employee's notification of the reorganization.

The obligation to notify employees about the reorganization of the company follows from the provisions of Part 5 and Part 6 of Art. 75 of the Labor Code of the Russian Federation. They establish that reorganization cannot be the basis for terminating employment contracts with employees of an organization or institution. Moreover, these provisions do not establish any restrictions, therefore, it is necessary to notify all employees, and not only those whose working conditions or position will undergo changes as a result of the reorganization. At the same time, Part 5 of Art. 75 of the Labor Code of the Russian Federation is of a guarantee nature: it is aimed at providing the employee with the opportunity, during the reorganization of a legal entity, to continue working in the position (profession, specialty) stipulated by the employment contract, that is, to preserve labor relations, which guarantees stability legal status worker in the face of change legal status employer (Definition of the Constitutional Court of the Russian Federation dated January 29, 2009 No. 24-О-О).

The procedure for notifying an employee of a reorganization is not established by law, so the employer can notify him of this event at any time.

There is no unified notification form, as well as any special requirements for it. Each company can develop its own form. It is advisable to indicate in the notification the period that is given to the employee for making a decision. This is usually one month. Also, in the notification, you need to provide a column for putting a mark on its receipt by the employee.

The law does not provide for liability for failure to notify employees of the reorganization. However, this does not exclude risks for the company: for example, appeals to the labor inspectorate with a complaint about violation of labor rights.

If the employee has not disclosed his disagreement or intention to continue working for the reorganized company, the employment contract continues to operate.

The company is not obliged to enter into additional agreements during the reorganization of the company with those employees who have decided to continue working and with whom the employment contract has not been terminated. However, information about the reorganization is entered in the work book. The instruction for filling out work books (Appendix No. 1 to the Decree of the Ministry of Labor of Russia dated 10.10.2003 No. 69) does not regulate the procedure for making entries in such cases. The employer decides how exactly to do this. For example, like this: the limited liability company "Romashka" was reorganized by joining the limited liability company "Buttercup".

If the employee disagrees with the continuation of work in the reorganized company, the employment contract with him can be terminated on the basis of:

• p. 6 h. 1 art. 77 of the Labor Code of the Russian Federation due to unwillingness to work in a reorganized company;
• p. 3 h. 1 tbsp. 77 of the Labor Code of the Russian Federation on the initiative of the employee.

The payment of severance pay upon dismissal due to unwillingness to continue working in the reorganized company is not provided for, since in both cases the employee decided to terminate the employment contract under on their own... The employee's refusal to continue working does not apply to the grounds for terminating the contract on the initiative of the employer (Article 81 of the Labor Code of the Russian Federation).

Probably everyone knows what the reorganization of a legal entity is. In government institutions, it is carried out even more often than in commercial organizations. As a rule, reorganization is associated with a change in the organizational and legal form (when, for example, a unitary institution becomes state-owned), a change in the owner of the institution's property, the merger of several organizations into one, etc. This process affects not only organizational and financial relations, but also labor. What is reorganization? In what forms can it take place? What responsibilities does the employer have towards employees? In what cases are they subject to dismissal? You will find answers to these and other questions in this article.

Reorganization and its forms

The concept of reorganization is absent in the legislation. However, as some experts define it, this is the termination or other change in the legal status of a legal entity, entailing a relationship of succession legal entities, as a result of which there are simultaneously the creation of one or more new legal entities and the termination of one or more of the previous legal entities.

According to Art. 57 and 58 of the Civil Code of the Russian Federation, the reorganization of a legal entity is carried out in the following forms:

Merger, when a new legal entity is formed from several legal entities that cease their activities;

Affiliation, when another legal entity joins to one legal entity, ceasing its activity, and in the end only one remains;

Division, when one legal entity is divided into several legal entities;

Spin-off, when another legal entity is separated from one legal entity, while both continue to conduct their activities;

Transformation, when a legal entity of one type is transformed into a legal entity of another type, while the former ceases to operate (change of the organizational and legal form).

The reorganization of federal institutions is mentioned in a separate regulatory legal act - Decree of the Government of the Russian Federation of July 26, 2010 N 539 "On approval of the Procedure for the creation, reorganization, change in the type and liquidation of federal state institutions, as well as approval of the charters of federal government institutions and amendments to them." According to this resolution, the reorganization federal institution can be carried out in the form of a merger, acquisition, division or separation.

The decision to reorganize a federal institution in the form of division, spin-off, merger (if the legal entity that emerged during the merger is a federal government institution) or affiliation (in the event of a federal budgetary or autonomous institution joining a government institution) is made by the Government of the Russian Federation.

The decision on reorganization in the form of a merger or acquisition, with the exception of the specified cases, shall be made by the federal executive body exercising the functions and powers for the development of state policy and legal regulation in the established area of ​​activity.

By virtue of Art. 57 of the Civil Code of the Russian Federation, the reorganization of a legal entity can be carried out by decision of its founders (participants) or a body of a legal entity authorized to do so by the constituent documents.

A legal entity is considered reorganized, with the exception of cases of reorganization in the form of affiliation, from the moment state registration newly emerged legal entities. When a legal entity is reorganized in the form of joining another legal entity to it, the first of them is considered reorganized from the moment it is entered into the United State Register legal entities records on the termination of the affiliated legal entity.

Labor Relations

Article 75 of the Labor Code of the Russian Federation refers to labor relations during reorganization. At the same time, in addition to reorganization, a change in the owner of the organization's property and a change in its jurisdiction are separately indicated.

Let us consider what is meant by a change in the owner of an organization's property and a change in its jurisdiction.

Change of ownership of the organization's property in accordance with clause 32 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2 "On the application by the courts Russian Federation Of the Labor Code of the Russian Federation "is the transfer (transfer) of ownership of the property of an organization from one person to another person or to other persons, in particular:

When privatizing state or municipal property, that is, when alienating property owned by the Russian Federation, constituent entities of the Russian Federation, municipalities, into the ownership of individuals and (or) legal entities (Article 1 of the Federal Law of December 21, 2001 N 178-FZ "On privatization state and municipal property ", Article 217 of the Civil Code of the Russian Federation);

When property owned by an organization is converted into state ownership (Article 235 of the Civil Code of the Russian Federation);

When transferring state-owned enterprises to municipal property and vice versa;

When a federal state enterprise is transferred to the ownership of a constituent entity of the Russian Federation and vice versa.

Changing the owner of the property of a state institution is, in fact, a reorganization in the form of transformation.

As for the change in the jurisdiction (subordination) of the organization, this means the transfer of the organization from the jurisdiction (subordination) of one body to the jurisdiction (subordination) of another body.

So, Art. 75 of the Labor Code of the Russian Federation, it is established that when the owner of the organization's property changes, changes in the jurisdiction (subordination) of the organization or its reorganization (merger, accession, division, separation, transformation) or changes in the type of state or municipal institution employment contracts with employees are not terminated. An exception is the possibility of terminating employment contracts with the head of the organization, his deputies and the chief accountant when the owner of the organization's property changes. With these persons, the new owner can terminate employment contracts no later than three months from the date of his ownership rights.

Note. The ownership of the enterprise passes to the buyer from the moment of state registration of this right (Article 564 of the Civil Code of the Russian Federation).

Upon termination of employment contracts with these persons, the new owner is obliged to pay them compensation in the amount of at least three average monthly wages of these workers (Article 181 of the Labor Code of the Russian Federation). The basis for termination of the employment contract in such cases will be clause 4 of part 1 of Art. 81 of the Labor Code of the Russian Federation - change of the owner of the organization's property.

Article 75 of the Labor Code of the Russian Federation also establishes the right of an employee to refuse to continue work in connection with a change in the owner of the organization's property, a change in the organization's jurisdiction, its reorganization, or a change in the type of state or municipal institution. The employment contract in these cases is terminated in accordance with clause 6 of part 1 of Art. 77 of the Labor Code of the Russian Federation (refusal of an 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, a change in the type of state or municipal institution).

Paperwork

As already mentioned, labor relations with employees when the owner of the organization's property changes (with the exception of persons established by part 1 of article 75 of the Labor Code of the Russian Federation), reorganization, change of jurisdiction remain. That is, the employment contracts remain the same. But additional agreements must be concluded to them.

However, the employer should first notify employees of the upcoming reorganization, change of ownership of property or change of jurisdiction, as well as the right of employees to terminate labor relations in this regard.

Such an obligation is not established by law, unless the terms of the employment contract change or the number of employees or staff is reduced simultaneously with the reorganization. However, in order to exercise the right of employees to terminate labor relations, established in Art. 75 of the Labor Code of the Russian Federation, you still need to do this. This raises the question: when should such a notification be sent? Since this issue is not regulated by the Labor Code, other provisions should be followed. So, in the case when the reorganization is accompanied by a change in the working conditions of the employee (place of work, structural unit, conditions of remuneration, position, etc.), the notification is sent two months before the upcoming changes by virtue of Art. 74 of the Labor Code of the Russian Federation.

It should be borne in mind that all employees should be notified, including those on vacation or on sick leave.

So, while the employee was on another vacation, the MU was reorganized into the regional state educational institution"Special (correctional) orphanage N 2 for orphans and children left without parental care, with disabilities." In connection with the reorganization, the number of children increased, as a result, the work schedule of this employee was subject to change. The worker was not warned about such a change before she left the next vacation in the prescribed manner (namely, two months).

The employee refused to work in the new regime, for which she was brought to disciplinary responsibility, and then fired.

However, by the court she was reinstated in her previous position with a payment to her wages during the forced absence from work and compensation for moral damage, and the dismissal under such circumstances was declared illegal (Cassation ruling of the Khabarovsk Regional Court of 04/27/2011 in case N 33-2747 / 2011).

If no changes in working conditions are planned, workers must be notified in shortest time from the moment of state registration of changes during reorganization or the entry into force of a regulatory legal act when the jurisdiction changes. In this case, it is not necessary to notify each employee with a signature, but you can bring this information to the employees orally or by posting it on a bulletin board, etc. At the same time, it is necessary to indicate the right of employees to terminate labor relations by submitting an appropriate application.

The employment contract with the employees who submitted such an application is terminated. The following entry is made in the work book: "The employment contract was terminated due to the employee's refusal to continue working in connection with the reorganization of the organization, paragraph 6 of the first part of Article 77 of the Labor Code of the Russian Federation."

And on what grounds should an employee be dismissed if he does not agree to continue work due to a change in the terms of the employment contract: under clauses 6 or 7 h. 1 of Art. 77 of the Labor Code of the Russian Federation (refusal of an employee to continue work in connection with a change in the terms of the employment contract determined by the parties)?

Since there are no clarifications on this issue, we believe that it would be easier and more expedient to be dismissed under paragraph 6 of Part 1 of Art. 77 of the Labor Code of the Russian Federation. In any case, the employee can always resign of his own free will.

Note! Dismissal of an employee under clause 6, h. 1, Art. 77 of the Labor Code of the Russian Federation should be drawn up after the completion of the reorganization, that is, from the moment the entry is made in the state register.

With employees who continue to work, it is necessary to conclude additional agreements to labor contracts. The agreements indicate all changes, including changes in the terms of the employment contract, which occurred as a result of the reorganization. In addition, it is necessary to make an entry in the work book.

Since the Instruction for filling out work books, approved by Decree of the Ministry of Labor of the Russian Federation of 10.10.2003 N 69, does not regulate the procedure for making such entries in the work book, it is assumed that the entry in this case should be similar to the entry on the change in the name of the organization (clause 3.2 of this instruction) , for example: "The Municipal Unitary Enterprise" Fakel "was reorganized in the form of transformation into a closed joint-stock company" Svetoch "from 15.07.2014".

Reduction of staff during reorganization

Quite often, when an institution is reorganized (for example, during a merger, division, separation), there is a reduction in the number of employees or staff.

In the Rostrud Letter dated 05.02.2007 N 276-6-0 on this occasion, it is noted that the reorganization may be accompanied by an actual reduction in the number of employees or the staff of the organization. At the same time, as a rule, the staffing table changes, new structural divisions, positions can be introduced into it, certain positions can be excluded from it.

In this case, as officials point out, we can talk not about the priority right to hiring, but about the priority right to stay at work while reducing the number of employees or staff. The preferential right to remain at work is granted to workers with higher labor productivity and qualifications.

With equal labor productivity and qualifications, preference in leaving work is given to families in the presence of two or more dependents (disabled family members who are on full content employees or those receiving assistance from him, which is for them a permanent and main source of livelihood), persons in whose family there are no other employees with independent earnings, employees who received an occupational injury or occupational disease during their work with this employer, disabled people of Great Patriotic War and disabled people from military operations to defend the Fatherland, workers who improve their qualifications on the direction of the employer without interruption from work.

Note! If the position of the employee is retained in the new staffing table, there are no grounds for dismissal due to staff reduction.

According to Art. 180 of the Labor Code of the Russian Federation about the upcoming dismissal due to a reduction in the number of employees or staff, employees are warned by the employer personally against the signature at least two months before dismissal. With the written consent of the employee, the employment contract with him may be terminated even before the expiration of the specified period.

Thus, two months before the reorganization, which is accompanied by a layoff, employees must be notified of this. In addition, the employer is obliged to offer the downsized employee another job available to him (vacant position) in accordance with Part 3 of Art. 81 of the Labor Code of the Russian Federation. You can do all this in one notification.

It should be noted that if the reduction in the number of employees or staff is carried out in connection with a change in the owner of the organization's property, then by virtue of Part 4 of Art. 75 of the Labor Code of the Russian Federation, such a reduction is allowed only after state registration of ownership by the new owner. That is, only after the registration of property rights, the new owner begins the reduction procedure.

If the employee refuses to work again vacant post or there is no such position in the organization, the employment contract with him is terminated under paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation, and the dismissed employee is paid severance pay in the amount of the average monthly earnings. He also retains the average monthly earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay), and in exceptional cases, the average monthly earnings remain for the third month from the date of dismissal by decision of the employment service, provided that that within two weeks after the dismissal, the employee applied to this body and was not employed by it (Article 178 of the Labor Code of the Russian Federation).

If the employment contract is terminated earlier than two months, the employee is paid additional compensation in the amount of his average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal.

Please note that if an employee is subject to dismissal due to a reduction in staff or the number of employees, then replacing this basis for dismissal with dismissal under paragraph 6 of Part 1 of Art. 77 of the Labor Code of the Russian Federation or at its own request can be recognized by the court as illegal, since it deprives the employee of the right to receive guarantees established by the Labor Code in the event of dismissal due to staff reduction.

Separately about vacation

Since employers often make mistakes when granting annual paid leave in the event of reorganization, this issue deserves special attention.

Let us remind you that the right to take leave for the first year of work arises from the employee after six months of his continuous work from the given employer. By agreement of the parties, the employee may be granted a paid leave before the expiration of six months (Article 122 of the Labor Code of the Russian Federation).

The sequence of granting paid leave is determined annually in accordance with the vacation schedule approved by the employer, taking into account the opinion of the elected body of the primary trade union organization no later than two weeks before the onset of the calendar year.

Note! The vacation schedule is mandatory for both the employer and the employee (Article 123 of the Labor Code of the Russian Federation).

As mentioned above, during the reorganization of the institution (including when the owner of the property changes), labor relations continue, respectively, the employee retains the right to leave and the length of service for granting leave is not interrupted. Vacation schedules drawn up before the reorganization remain valid. Thus, workers must go on vacation in accordance with the current vacation schedule.

Question. For the period of work from 01/05/2014 to 01/04/2015, according to the vacation schedule, the employee must be granted a vacation of 40 calendar days from 09/30/2014 to 11/10/2014. Reorganization is planned in the institution from 01.11.2015. Can the employer grant leave before the reorganization not in the amount of 40 days, but in proportion to the time worked by the employee before the reorganization?

Since the employment relationship with employees continues, leave should be granted according to the vacation schedule. At the same time, by agreement between the employee and the employer, the annual paid leave can be divided into parts. Moreover, at least one of the parts of this vacation must be at least 14 calendar days (Article 125 of the Labor Code of the Russian Federation).

Article 124 of the Labor Code of the Russian Federation establishes cases of postponement of vacation for another period. In exceptional cases, when the granting of leave to an employee in the current working year may adversely affect the normal course of work of the organization, it is allowed, with the employee's consent, to postpone the vacation to the next working year. In this case, the vacation must be used no later than 12 months after the end of the working year for which it is granted.

Thus, if the employee agrees to divide the vacation into parts and transfer the second part of the vacation to another time (in this case, after the reorganization) or to the next working year, this can be done. At the same time, an application must be requested from the employee with a request for the division and transfer of vacation, it is also necessary to make changes to the vacation schedule.

If the employee does not agree, the employer is obliged to provide him with vacation in full according to the schedule, regardless of whether it falls on the period of reorganization.

If the employee has exercised his right to terminate the employment contract in connection with the reorganization under paragraph 6 of part 1 of Art. 77 of the Labor Code of the Russian Federation, on the day of dismissal he is paid financial compensation for all unused vacations.

The same rule applies in the case when the reorganization is accompanied by a reduction in the number of employees or staff. That is, if an employee leaves due to a reduction in the number of employees or staff, and according to the vacation schedule, he is given a vacation until two months before the termination of the employment contract, or he partially goes beyond this period, then he should be granted vacation.

In addition, according to Art. 127 of the Labor Code of the Russian Federation, upon a written application of the employee, unused vacations can be granted to him with subsequent dismissal (except for cases of dismissal for guilty actions). In this case, the last day of vacation is considered the day of dismissal.

Also note that when paying compensation for unused vacation upon dismissal of an employee in accordance with the Regulations on regular and additional leave, approved by the NKT of the USSR on April 30, 1930 N 169, in the event of the liquidation of an enterprise or institution or its individual parts, reduction of staff or work, as well as in case of reorganization or temporary suspension of work, an employee who has worked from 5.5 to 11 months receives full compensation, then there is for all his annual and additional paid leave.

* * *

Summing up, let us draw your attention to the main points related to the reorganization of the institution.

1. In the event of a reorganization of the institution, labor relations with employees shall continue. An exception is the possibility of termination of labor relations with the head, his deputies and the chief accountant when the owner of the organization's property changes.

2. Employees must be notified of the upcoming reorganization, as a result of which the terms of the employment contract are changed or the staff or number of employees is reduced, two months in advance.

3. Employees must be informed of any reorganization in order to exercise their right to dismissal under paragraph 6 of Part 1 of Art. 77 of the Labor Code of the Russian Federation.

4. Additional agreements to labor contracts are concluded with employees, as well as entries are made in their work books about the reorganization of the institution.

5. Another annual leave provided to employees in the reorganized institution according to the vacation schedule approved prior to the reorganization.

6. If the employee wishes to terminate labor relations in connection with reorganization, change of owner or change of jurisdiction, he is dismissed under clause 6 of part 1 of Art. 77 of the Labor Code of the Russian Federation after state registration of changes or the entry into force of a regulatory legal act on changing jurisdiction. No benefits are paid to the employee for such a dismissal.

7. If during the reorganization there is a reduction in the number of employees or staff, employees are dismissed under clause 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation with the payment of severance pay.

"Human Resources Department", 2008, N 2

How to properly formalize the continuation of labor relations during the reorganization and change of the owner of the organization

Entrepreneurs often come to the conclusion that their business will become more efficient if it is organized in a different form. At the same time, it seems to them necessary to divide the enterprises or, conversely, to enlarge them. In order to change the structure of the organization, the civil legislation provides for the procedure for reorganizing a legal entity (Article 57 of the Civil Code of the Russian Federation). Reorganization means a change in the structure of a legal entity in the form of a merger, acquisition, division, separation or transformation. This operation can be carried out by decision of the founders (participants) of the organization or the body of a legal entity authorized to do so by the constituent documents. In the cases established by law, reorganization is possible only with the consent of the authorized state bodies or by a court decision. These cases are considered in Art. Art. 27 and 38 of the Federal Law of 26.07.2006 N 135-FZ "On Protection of Competition". During the reorganization of enterprises, many different questions always arise, both for accountants and for personnel officers. How should the continuation of labor relations with employees be formalized? What categories of workers can be fired? How to correctly make an entry in the work book? Let's figure it out.

What is reorganization?

A legal entity is considered reorganized, with the exception of cases of reorganization in the form of affiliation, from the moment of state registration of the newly emerged legal entities. In case of reorganization in the form of a merger with one legal entity of another, the former is considered reorganized from the moment of making an entry in the Unified State Register of Legal Entities on the termination of the activity of the merged legal entity. According to Art. 58 of the Civil Code of the Russian Federation, the procedure for succession during reorganization is as follows:

In the event of a merger of legal entities, the rights and obligations of each of them are transferred to the newly formed legal entity in accordance with the deed of transfer;

When one legal entity joins another, the rights and obligations of the affiliated legal entity are transferred to the latter in accordance with the deed of transfer;

When a legal entity is divided, its rights and obligations are transferred to the newly emerged organizations in accordance with the separation balance sheet;

When one or several legal entities are separated from a legal entity, the rights and obligations of the reorganized legal entity are transferred to each of them in accordance with the separation balance sheet;

When a legal entity of one type is transformed into a legal entity of another type (change of the organizational and legal form), the rights and obligations of the reorganized legal entity are transferred to the newly formed legal entity in accordance with the transfer act.

In Art. 75 of the Labor Code of the Russian Federation states that the reorganization of a legal entity cannot serve as a basis for terminating employment contracts with employees. However, the Rostrud Letter dated 05.02.2007 N 276-6-0 explains that during the reorganization, an actual reduction in the number or staff of the organization's employees is possible. At the same time, as a rule, the staffing table changes: new structural divisions, positions can be introduced into it, certain positions can be excluded from it.

Under these conditions, employees with higher productivity and qualifications have a preferential right to remain at work.

According to Art. 179 of the Labor Code of the Russian Federation with equal labor productivity and qualifications, preference in leaving work is given to:

Family in the presence of two or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is for them a permanent and main source of livelihood);

Persons in whose family there are no other workers with independent earnings;

Employees who received a work injury or an occupational disease while working for this employer;

WWII invalids and invalids of military operations to defend the Fatherland;

Employees who improve their qualifications in the direction of the employer on the job.

The above article also notes that other categories of employees can also exercise the preferential right to remain at work, if this is specified in a collective agreement or otherwise. local act employer. If the employees did get laid off, then it is necessary to notify them of this personally against signature at least two months before the dismissal (Article 180 of the Labor Code of the Russian Federation). Moreover, in accordance with Art. 178 of the Labor Code of the Russian Federation, employees who have been laid off are entitled to severance pay in the amount of the average monthly earnings, and they also retain the average monthly earnings for the period of employment, but not more than two months from the date of dismissal.

If the position of the employee is retained in the new staffing table, there are no grounds for dismissal due to staff reduction. In this case, the terms of the employment contract are changed (name, place of work, etc.), about which the employee must also be notified in writing no later than two months in advance (Article 74 of the Labor Code of the Russian Federation). If he agrees with such changes, labor relations with him continue and he is transferred without termination of the employment contract (Letter of Rostrud dated 05.09.2006 N 1553-6).

We draw up a work book

at different forms reorganization

The reorganization of an enterprise in the form of a transformation is a change in the organizational and legal form. Based on Art. 75 of the Labor Code of the Russian Federation, it is not required to renegotiate contracts with employees of the organization. But it is necessary to make a record of the changes in the work book. In clause 3.2 of the Instructions for filling out work books (hereinafter referred to as the Instruction), approved by the Decree of the Ministry of Labor of Russia dated 10.10.2003 N 69 "On approval of the Instruction for filling out work books", it is said that when changing the organizational and legal form of the organization, it will be necessary to make a separate entry line in column 3 of the section "Information about work".

Attention! When the name of the organization is changed, for example: LLC "Amethyst" was renamed into LLC "Izumrud", the following entry is made: "LLC" Ametist "was renamed into LLC" Izumrud "from 10.07.2008".

If the reorganization of the company occurs in the order of accession (merger, division, separation) of one legal entity to another, then labor relations with employees of the affiliated organization continue by virtue of Art. 75 of the Labor Code of the Russian Federation. Specialists wishing to work for the successor company do not quit. At the same time, no written consent from the employee for the extension of the employment contract is required. An employee who does not want to remain in the successor company must express his refusal in writing (Article 80 of the Labor Code of the Russian Federation). If the employee wants to stay in new organization, then in this case, the reorganized enterprise does not need to arrange for the transfer of employees to a new place of work or dismiss them, and then hire the successor company. Unfortunately, the Instruction lacks a paragraph explaining how to correctly make an entry in work book... Some specialists of the Pension Fund recommend making the following entry in column 3 of the section "Information on work": "Alpha LLC is reorganized from such and such a date by merger (merger, division, separation) into Gamma LLC. In this case, column 4 indicates the basis for making this entry The basis in this case will be the decision (protocol) indicating its number and date.

Attention! Due to the fact that on the issue of making an entry in the work book during reorganization different ways there are no instructions in the Instructions and nothing is spelled out in the legislation; when filling out the work book, it is better to once again contact the employees of the regional branch of the Pension Fund for explanations.

And if an employee is transferred to a new position in the successor company, two entries are made in his work book. First, a record is made about the reorganization of the enterprise, and then about the acceptance to the position. Moreover, they are entered into the work book only on the basis of the corresponding order (instruction).

According to Art. 84.1 of the Labor Code of the Russian Federation, when an employee is dismissed, an entry in the workbook on the basis and reason for termination of the employment contract must be made in strict accordance with the wording of the Labor Code or other federal law, as well as with reference to the relevant article, part of the article, paragraph of the article of the Labor Code of the Russian Federation or other federal law. In this case, the following entry is made in the employee's work book: "with the transfer of the employee, with his consent, to work for another employer (Rubin LLC), clause 5, part 1, article 77 of the Labor Code of the Russian Federation." This procedure is established by clause 6.1 of the Instructions. This paragraph states that upon dismissal (termination of an employment contract) in connection with the transfer of an employee to another permanent job to another employer (to another organization) in column 3 of the section "Information on work" of the work book indicates in what order the transfer is carried out - at the request of the employee or with his consent.

We also note that when hiring for a new place of work, an entry is made in the employee's work book in column 3 of the hiring in accordance with clause 3.1 of the Instructions, indicating that the employee is accepted in the order of transfer (clause 6.1 of the Instructions).

Example. LLC "Amethyst" was reorganized by joining LLC "Izumrud".

In this regard, the following entries are made in the work books of employees:

The wording of entries in the work book in connection with hiring in the order of translation is as follows:

We draw up a work book

when the owner of the organization's property changes

A change in the owner of an organization's property means the transfer (transfer) of ownership of the organization's property from one person to another or to other persons. This happens when:

Privatization of state and municipal property, that is, when alienating property owned by the Russian Federation, constituent entities of the Russian Federation, municipalities, into the ownership of individuals and (or) legal entities, on the basis of Art. 1 of the Federal Law N 178-ФЗ dated 21.12.2001 "On the privatization of state and municipal property" and Art. 217 of the Civil Code of the Russian Federation;

Turning property owned by an organization into state ownership (clause 2 of article 235 of the Civil Code of the Russian Federation);

Transfer of state-owned enterprises to municipal ownership and vice versa;

Transfer of a federal state enterprise to the ownership of a constituent entity of the Russian Federation and vice versa (clause 32 of the Resolution of the Plenum of the RF Armed Forces of March 17, 2004 N 2).

It should be noted that on the basis of paragraph 1 of Art. 66 and clause 3 of Art. 213 of the Civil Code of the Russian Federation, the owner of property created at the expense of the contributions of the founders (participants) of business partnerships and companies, as well as acquired or produced by business partnerships and companies in the course of their activities, is a company or a partnership. Participants, on the other hand, have only rights of obligation with respect to these legal entities (clause 2 of article 48 of the Civil Code of the Russian Federation). Thus, when the composition of the founders (participants, shareholders) changes, the owner of the organization's property does not change, since, based on the above-mentioned norms of civil law, a legal entity remains the owner of the property.

Let's turn to labor law... What happens to the employees of the enterprise when the owner of the property changes? Part 4 of Art. 75 of the Labor Code of the Russian Federation provides for the obligation of the new owner of the organization's property to accept its work collective in its entire staff and the possibility of reducing the number or staff of employees only after state registration of the transfer of ownership. In paragraph 4 of Art. 81 of the Labor Code of the Russian Federation states that an employment contract can be terminated when the owner of the organization's property changes, that is, this applies to the head of the organization, his deputies and the chief accountant. It should be noted that this article of the Labor Code of the Russian Federation applies only to certain organizations:

State or municipal unitary enterprises to which property belongs on the basis of the right of economic management;

Federal state enterprises;

Institutions funded in whole or in part by owners. The last may be the state, municipality, legal entities and individuals.

In the above-mentioned organizations, the new owner of the property has the right to dismiss the head of the organization, his deputies and the chief accountant no later than 3 months from the date of his ownership. After the expiration of the specified period, the new owner will not be able to exercise this right and the termination of the employment contract with the named employees may be made on other grounds. The labor relations in question are governed by Art. 75 of the Labor Code of the Russian Federation. The basis for termination of employment contracts with the above categories of employees is the decision of the new owner.

In this case, according to Art. 181 of the Labor Code of the Russian Federation, the new owner is obliged to pay the head of the organization, his deputies, the chief accountant compensation in the amount of 3 average monthly wages.

It should also be noted that a change in the owner of the organization's property does not entail the obligation to dismiss executives, and is also not a reason for terminating an employment contract with other employees of the organization. Labor relations with them continue under the new owner. Here is an example of an entry in a work book about the termination of an employment contract in connection with a change in the owner of the property.

E.A. Soboleva

Journal Expert

"Human Resources Department"

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