Abolition of harmful working conditions at the enterprise. Notification of changes in working conditions
Interest on the tariff rate (salary) is set in the following amounts: for work with difficult and harmful working conditions - 4, 8, 12%; in jobs with especially difficult and especially harmful working conditions - 16, 20, 24%. Specific amounts of wage increases are determined by the employer on the basis of certification of workplaces and assessment of working conditions in them (at the same time, he takes into account the opinion of the representative body of workers in the manner established by Art. 372 of the Labor Code of the Russian Federation for the adoption of local regulations). The size of the increase can also be established by a collective or labor agreement (Part 3 of Article 147 of the Labor Code of the Russian Federation). The organization establishes specific amounts of additional payments to salaries (in rubles) for employees working in hazardous conditions.
400
Pay the Employee compensation for the use of a personal car, tools, etc. for the needs of the organization; — bring the Employee to disciplinary and financial liability in cases provided for by the legislation of the Russian Federation; - exercise other rights granted to him by the Labor Code of the Russian Federation. 3. Working hours 3.1. The employee is provided with a five-day working week of 36 (thirty-six) hours.
Weekends are Saturday and Sunday. 3.2. The Employee’s work in the position specified in clause 1.1 of the contract is carried out in hazardous working conditions.3.3. The employee is granted annual leave of 28 calendar days. 3.4. The employee is granted additional paid leave of 12 calendar days, and the additional leave is added to the main leave of 28 calendar days.
3.5.
How to correctly spell out harmful working conditions in a contract?
Important
Part of the vacation exceeding 28 calendar days cannot be replaced by monetary compensation (Article 126 of the Labor Code of the Russian Federation). 3.6. For family reasons and other valid reasons, the Employee, at his request, may be granted short-term leave without pay.
3.7. An employee who works in the cold season outdoors or in closed, unheated rooms is, if necessary, provided with special breaks for heating and rest, which are included in working hours. 4. Terms of remuneration 4.1. For the performance of work stipulated by this employment contract, the Employee is paid a salary of 50,000 rubles.
per month. 4.2. Wages are paid at the Employer's cash desk on the 15th and 30th of each month in accordance with the internal labor regulations.
Press center
This practice should be considered legal if the increase in wages (additional payments) in a fixed monetary amount is not lower than calculated in proportion to the salary (tariff rate), as provided for by law. Thus, certification of workplaces is the basis for classifying working conditions as harmful or dangerous, which gives the employee the right to receive guarantees and compensation (reduced working hours, additional annual paid leave, increased wages, etc.).
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From the date of entry into force of this additional agreement, all previous versions of the employment contract dated February 27, 2007 No. 116 are not subject to application. 9.3. This additional agreement is drawn up in two copies having equal legal force, one of which is kept by the Employer and the other by the Employee.
Signatures of the parties: Employer Employee "Alpha" Address: 125008, Moscow, st. Mikhalkovskaya, 20 INN 7708123436, KPP770801001r/s 40702810400000002233vAKB "Nadezhny" k/s30101810400000000222BIK044583222 Dezhneva Anna Vasilievnapassport series 46 02 No. 545 177 issued by the Internal Affairs Directorate of the Voskresensky district of the Moscow region.
Registration address: 125373, Moscow, blvd. Jana Rainisa, Dr. 24, bldg. 2, apt. 474 A.V. Lvov A.V. Dezhneva A copy of the additional agreement was received by A.V.
NA No. 2‘2008If working conditions at the workplace are harmful and (or) dangerous, this must be indicated in the employment contract (Article 57 of the Labor Code of the Russian Federation). In addition, in this case, the contract must also provide for compensation for work under such conditions. These compensations were approved by Decree of the Government of the Russian Federation dated November 20, 2008 No. 870 “On the establishment of reduced working hours, annual additional paid leave, increased wages for workers engaged in heavy work, work with harmful and (or) dangerous and other special working conditions” ( further - Decree No. 870 dated November 20, 2008). Please note! The types and amounts of compensation depend on the class of working conditions. For workers engaged in heavy work, work with harmful and (or) dangerous and other special working conditions, compensation is established based on the results of workplace certification (P.
Sample additional agreement with hazardous working conditions
Resolution No. 870 of November 20, 2008): reduced working hours - no more than 36 hours per week in accordance with Art. 92 Labor Code of the Russian Federation; annual additional paid leave - at least 7 calendar days; increase in wages - at least 4% of the tariff rate (salary) established for various types of work with normal working conditions. The Ministry of Health and Social Development of Russia has been instructed (clause 2 of Resolution No. 870 of November 20, 2008) - depending on the class of working conditions and taking into account the opinion The Russian Tripartite Commission for the Regulation of Social and Labor Relations - to establish compensation for workers engaged in heavy work, work with harmful and (or) dangerous and other special working conditions.
The employee is provided with a reduced working time - (no more than 36) hours per week in the manner, amount and under the conditions established by industry (inter-industry) agreements and collective agreements. 3. Based on clause of the Industry (inter-industry) agreement "" and clause.
Collective Agreement "" for the year - the duration of the Employee's reduced working hours is increased to (no more than 40) hours per week with the payment to the Employee of a separately established monetary compensation in the amount of () rubles, paid simultaneously with the payment of wages on the terms, which are established by clause of the Industry (inter-industry) agreement and clause of the Collective Agreement for the city.
- 4. This Supplementary Agreement comes into force from the moment of signing, is valid until » » and is an integral part of the Employment Agreement dated » » N. 5.
Responsibility of the parties 5.1. In case of non-fulfillment or improper fulfillment by the Employee of the duties assigned to him by this employment contract, internal labor regulations, labor legislation, he bears disciplinary, material and other liability in accordance with the current legislation of the Russian Federation. 5.2. The employer bears financial and other liability in accordance with the current legislation of the Russian Federation.
6. Termination of the employment contract 6.1. On the general grounds provided for by current legislation. 6.2. In all cases, the day of dismissal of the Employee is the last day of his work.
7. Guarantees and compensation 7.1. During the period of validity of this employment contract, the Employee is subject to all guarantees and compensations provided for by the current labor legislation of the Russian Federation. 7.2.
Attention
Comply with the internal labor regulations, production and financial discipline established by the Employer, and conscientiously perform their job duties specified in paragraphs. 2.2.1 of this employment contract. 2.1.3. Take care of the Employer's property. 2.1.5. Undergo medical examination in a timely manner.
2.1.6. Comply with labor protection, safety and industrial sanitation requirements. 2.1.7. Contribute to the creation of a favorable business and moral climate at work.
2.2. The employer undertakes: 2.2.1. Provide the Employee with work in accordance with the terms of this employment contract. The Employer has the right to require the Employee to perform duties (work) not stipulated by this employment contract only in cases provided for by the labor legislation of the Russian Federation.
2.2.2.
The salary of employees engaged in heavy work, work with harmful, dangerous and other special working conditions must exceed the salary at established rates (tariffs, salaries) for employees working in normal conditions (Part 1 of Article 147 of the Labor Code of the Russian Federation). At the same time, its upper limit is not limited by law, but the lower limit, on the contrary, is limited. An increase in wages for such employees should be made based on the results of workplace certification and in an amount of at least 4 percent of the rate (tariff, salary) established for various types of work with normal working conditions (Part 2 of Article 147 of the Labor Code of the Russian Federation, Clause 1 of the Government Resolution RF dated November 20, 2008 No. 870).
Details in the System materials:
- Answer: How to organize work under harmful or dangerous working conditions.
Harmful working conditions Harmful working conditions are production factors that can cause various types of diseases in an employee. Such conditions include, in particular, radiation, noise, vibration, etc.
n. You can find out which jobs are hazardous using the list of industries, workshops, professions and positions with hazardous working conditions, approved by Resolution of the State Committee for Labor of the USSR and the Presidium of the All-Union Central Council of Trade Unions dated October 25, 1974 No. 298/P-22. In addition, you can use the order of the Ministry of Health and Social Development of Russia dated April 12, 2011.
Work in harmful and dangerous conditions is compensated by increased wages and other preferences. The legislation of the Russian Federation entrusted the employer with establishing the severity of the working conditions of employees. Events have been held since 2014 according to new rules. Now a special organization, under an agreement with the enterprise, certifies workplaces. When external factors change, this often leads to the abolition of harmfulness and, consequently, to a reduction in compensation.
Let’s look at the conditions under which the special labor regime is lifted. When should the manager make changes to the employment contract? What formalities need to be completed.
The legislative framework
The classification of the complexity of working conditions is given in Article 14 of the law of December 28, 2013. This regulatory act regulates the rules for establishing hazards and hazards at work. The event is carried out according to the following logic:
- The employer enters into an agreement with the evaluation commission and provides its employees with documentation;
- Specialists organize an assessment of each work place and draw conclusions about the degree of danger or severity, including in terms of work stages;
- The results of the specialists’ activities are documented in the form of a report.
Why do they remove harmfulness?
, approved in the USSR. The 1974 regulation is still in effect. Over the past years, a lot has changed in production:
- new technologies have appeared to make work easier;
- modern equipment was invented and put into production;
- professions arose that did not exist before.
The changes led to the need to conduct a serious audit of existing production facilities. The reform was necessary for two subjects of economic relations:
- employers paying preferential amounts under articles of the Labor Code;
- the state, which takes upon itself the social protection of citizens.
What should an employer do?
The management of the enterprise receives certification certificates from employees of the evaluation commission. Documentation must be approved within ten days. If there are doubts about the correctness of the assessment, a claim is filed. This can be sent to court.
The adopted acts are a guide to action. All personnel documentation must be brought into compliance with the conclusion of specialists. The following work is carried out:
- workers are warned about;
- for each, additions to the contract are drawn up;
- the latter are carried out by order of the enterprise;
- changes must be agreed upon with a trade union organization or other representative body;
- employees are asked to sign an addendum to the agreement on the abolition of benefits for harmfulness or danger.
Do you need information on this issue? and our lawyers will contact you shortly.
Subtleties of design
The methodology for organizing interaction between the parties when eliminating heavy duty work is described in the Labor Code. This involves the signing of an additional agreement. Theoretically, the initiator can be either a boss or a worker. The order is:
- The HR officer prepares draft additional agreements for each employee whose work schedule has changed. The legislation does not provide for a special form for such a document. You should rely on the text of the first contract with the employee (copy the form);
- Employees should be notified of changes in writing.
Workers are notified of the results of inspection activities and relevant changes in a notification form. The document must contain the following information:
- title: “On changing working conditions”;
- personal information of the addressee: Full name;
- date of change in payment;
- the reason for such a decision (you should refer to the certification sheet and the Labor Code);
- offer:
- agree with the innovation;
- obtain a different place of application of forces at the same enterprise;
- warning about the severance of relations in accordance with the Labor Code (reduction) in case of refusal to switch to a new regime;
- publication date;
- manager's signature.
Dear readers!
We describe typical ways to resolve legal issues, but each case is unique and requires individual legal assistance.
To quickly resolve your problem, we recommend contacting qualified lawyers of our site.
What should a worker do?
The citizen who receives the notification must choose the most advantageous offer. He can:
- agree to cancel some guarantees and reduce wages (they will stop paying for harmful activities);
- ask to be transferred to another place where the guarantees are preserved;
- refuse.
In case of refusal, the employment relationship is terminated due to serious changes in working conditions. The procedure is described in the TC:
- the person is warned two months in advance about the new state of affairs;
- The HR officer sends information about the release of employees to the Employment Center;
- after two months the person is fired (in some cases severance pay is paid);
- the unemployed person registers with the employment authorities and receives the appropriate benefit.
Video about Article 74 of the Labor Code of the Russian Federation
July 29, 2018, 19:09 March 3, 2019 13:35 
The Labor Code of the Russian Federation stipulates the employer’s obligation to provide prior notification of changes in the mandatory conditions of the employment contract. In this article we will tell you what exactly needs to be included in the notice and how to familiarize the employee with changes in working conditions.
From this article you will learn:
Notification of changes in essential working conditions (sample)
If conditions at the workplace change in one direction or another for technical or organizational reasons, the employer is obliged to change the terms of the employment contract. This can only be done with the consent of the employee and in compliance with the procedure established by law.
The employer is obliged to inform the employee in writing about upcoming changes, in a notice no later than 2 months in advance ().
The form of notification is not established at the legislative level, so the employer can draw up this document in any form, taking into account the provisions of Art. 74 Labor Code of the Russian Federation.
Our experts have prepared a sample notice for you, which you can download below.
Sample notification of changes in significant working conditions
The term “essential conditions of an employment contract” was used in legislation until 2006; subsequently it was replaced by the term “mandatory conditions of an employment contract.”
The list of mandatory and additional conditions of the employment contract is given in.
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Mandatory terms of the employment contract– these are mandatory provisions that must be reflected in the employment contract with the employee. |
Additional terms of the employment contract- these are conditions that are included in the employment contract in addition to the mandatory ones. |
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- place of work; – labor function; – start date of work; – validity period (for a fixed-term employment contract) and grounds for concluding the contract; – terms of remuneration; – compensation for hard work and work in harmful and (or) dangerous conditions; – conditions that determine the nature of the work (mobile, traveling, etc.); – working conditions in the workplace; |
– about clarification of the place of work and the workplace; – about the test; – on non-disclosure of secrets protected by law (state, official, commercial, etc.); – on the employee’s obligation to work after training for no less than the period established by the contract, if at the expense of the employer; – on the types and conditions of additional employee insurance; – on improving the social and living conditions of the employee and his family members; – on clarifying, in relation to the employee’s working conditions, the rights and obligations of him and the employer established by labor legislation and other regulatory legal acts. |
The fact of a change in the specifications is established during a special assessment.
In order to make changes to an employment contract, a written agreement must be drawn up between the employee and the employer. Therefore, additional agreements are drawn up for the employees of the organization based on its results. For new employees hired after a special assessment, working conditions are written down based on its results in the employment contract itself.
An additional agreement must be drawn up for each party to the employment contract. Confirmation of the fact that the employee has familiarized himself with the additional agreement is the signature on the employer’s copy
In what cases does it become necessary to notify an employee about a change in the terms of reference?
Working conditions are mandatory terms of an employment contract. An employee has the right to receive complete and reliable information about what harmful or dangerous factors he will come into contact with in his daily work activities.
An employee should be notified if normal working conditions are determined during the SOUT process, as a result of which he loses the previously acquired right to have VOPF in the workplace. Since guarantees and compensation are both organizational and monetary in nature, in a certain sense we are talking about reducing preferences for the employee. That is, on the one hand, the microclimate in the Republic of Moldova has been improved, but on the other hand, wages and other benefits are decreasing.
However, guarantees cannot be canceled unless there are grounds for doing so. Documentary evidence of the improvement in actual working conditions is a report on the implementation of the occupational safety work plan, as well as the implementation of measures to reduce the negative impact of vocational occupational labor on workers.
Procedure for preparing a notification
The volume of changes in personnel document flow within a five-year period after the automated workplace or during the next in line SOUT will be enormous. Therefore, we always recommend including HR specialists in the commission for conducting SOUT.
In addition to assistance in the form of providing employee functionality for specific workplaces, a personnel management specialist will help to correctly identify working hours, work time tracking and other activities necessary for a comprehensive assessment of workplace workplaces. And the HR manager will have the necessary time reserve to prepare additional agreements on upcoming changes in the working conditions of the staff.
For the same reason, it is advisable to include an accountant in the team. The fact is that on the day the report is approved by the head of the enterprise, an order must be issued to assign monetary compensation for work in unfavorable working conditions. In this case, the employee who is first exposed to harmful working conditions is paid for the harmful conditions starting from the day the manager signed the report, and there is practically no time left for preparing documents.
attention
The notice must be drawn up in two copies. Confirmation of the fact that the employee has read the notice is the signature on the employer’s copy.
How the notice is delivered and served to the employee
Notification of changes in the essential terms of the employment contract must be given to the employee after the issuance of an order to apply the results of the Special Labor Agreement. When exactly this should be done depends, among other things, on the date from which previously provided guarantees and compensations will be cancelled.
If the employee refuses to receive this document, a report about this is drawn up in the presence of witnesses, and the information contained in the notification is announced.
How to correctly prepare a notice of removal of an allowance for hazardous working conditions, if before certification the cook was paid 12% extra, after certification based on the card on working conditions at the workplace, 8% was due?
Answer
The employer is obliged to ensure the provision of the minimum, i.e. statutory guarantees and compensations. Since the specific amounts of wage increases, length of working hours and the number of days of additional leave for work with harmful and (or) dangerous working conditions are established in the employment contract, it seems that changing these conditions is possible only by mutual agreement of the parties. Unilaterally, at the initiative of the employer, the terms of the employment contract on the types and amounts of compensation for hard work and work with harmful and (or) dangerous working conditions (if the employee performs his labor function in the specified conditions) cannot be changed.
An exception may be the case when the organization carried out certification of workplaces, as a result of which the workplaces were improved, and the employer initiates a change in the terms of the employment contract under Art. 74 of the Labor Code of the Russian Federation due to the elimination of harmful and (or) dangerous working conditions.
It will be useful for you to know about conducting certification of employees in the material at the link.
If working conditions improve, but the factors of harmfulness and (or) danger are not completely eliminated, the minimum guarantees established by the Labor Code of the Russian Federation must be preserved; only compensation increased relative to those established by law can be reduced. Moreover, if the need for organizational or technological changes is significant and inevitable and such changes cannot be made without worsening the terms of employment contracts in comparison with those established by the collective agreement, the employer must first make changes to the collective agreement and only then begin to carry out the procedures provided for in Art. . 74 Labor Code of the Russian Federation.
More details in the System materials:
1.Form
NOTICE No. 12
on changing the terms of the employment contract
Moscow 06/01/2012
A.S. Kondratiev
Dear Alexander Sergeevich!
Guided by part two of Article 74 of the Labor Code of the Russian Federation, we inform you that
that in connection with the certification of workplaces, the bonus for working with hazardous and
hazardous working conditions from 01/01/2013.
From 01/01/2013 This premium will be paid at the rate of 8%, previously it was at the rate of 12%.
If you do not agree to continue working under the new conditions, you will be offered
transfer to another job available at Alpha. In the absence of the specified work, as well as in
If you refuse the offered job, the employment contract with you will be terminated in
in accordance with paragraph 7 of part one of Article 77 of the Labor Code of the Russian Federation.
We ask you to inform us about your decision by November 27, 2012.
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Director |
A.V. Lviv |
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A copy of the notification received: Manager |
A.S. Kondratiev |
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I agree to work in new conditions |
A.S. Kondratiev |
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2. Answer: How to change an employment contract
Grounds for changing the employment contract
The need to amend an employment contract arises in cases where the information or conditions contained in it change. It does not matter what terms of the employment contract change: or.
Changes to an employment contract can only be made with mutual consent of the parties (). In this case, the initiator of changes can be either an employee or an employer ().
Procedure for making changes
As a general rule, the procedure for making changes to an employment contract is to draw up a written agreement between the employee and the employer. There is no standard form for such a document in the legislation. Therefore, the organization can compose it in any form in the form. This conclusion follows from the Labor Code of the Russian Federation and is confirmed.
The additional agreement is an integral part of the employment contract. Therefore, make it in two copies - one for each of the parties. The fact that the employee received his copy of the additional agreement will be confirmed by his signature on the employer’s copy. This conclusion can be drawn from Article 67 of the Labor Code of the Russian Federation.
Special cases of changing an employment contract
In some cases, before drawing up an additional agreement to an employment contract, it is necessary to complete a number of procedures provided for by law. In particular, this applies to changes to the employment contract for reasons related to:
change in the jurisdiction of the organization, its reorganization ().
Changes in organizational or technological working conditions
Changes to the employment contract for reasons related to changes in organizational or technological working conditions include, for example:
changes in equipment and production technology (for example, the introduction of new equipment, which led to a reduction in the employee’s workload);
structural reorganization of production (for example, exclusion of any stage of the production process); Part 2 of Article 74 of the Labor Code of the Russian Federation. If the employee agrees with the upcoming changes, an additional agreement to the employment contract () is drawn up.
If the employee does not agree to work under the new conditions, the organization is obliged to offer him another position (vacant, including a lower-ranking one, lower-paid), if such vacancies exist in the organization. You can only offer an employee vacancies that the employer has in the given area. It is necessary to offer vacancies in other areas if this is provided for in a collective (labor) agreement or other agreements. Such rules are provided for in Article 74 of the Labor Code of the Russian Federation.
If an employee refuses to work under the new conditions (as well as if there are no vacancies in the organization), the employment contract can be terminated on the basis of Part 1 of Article 77 of the Labor Code of the Russian Federation. This can be done only after a two-month period has passed after warning the employee about a change in the terms of the employment contract. A similar position is reflected in.
Ivan Shklovets
Deputy Head of the Federal Service for Labor and Employment
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Question
The enterprise, in accordance with the requirements of the Labor Code of the Russian Federation, carried out SOUT. The following questions arose: 1. Previously (based on the results of workplace certification), class -2 was established, while the employee received additional pay and additional leave in accordance with Resolution No. 298/p-22 of October 25, 1974 “On approval of the list.. " These guarantees were spelled out in the employment contract and in the collective agreement, which expires in December 2017. According to the results of the SOUT, the class of working conditions remained -2, while vacation and additional payments were not provided. Does the management of the enterprise have the right to withdraw additional leave and additional pay from employees employed before 01/01/2014, and how to do this correctly? 2. Previously (based on the results of workplace certification), class -2 was established, while the employee received additional pay and additional leave in accordance with Resolution No. 298/p-22 of October 25, 1974 “On approval of the list...”. These guarantees were spelled out in the employment contract and in the collective agreement, which expires in December 2017. According to the results of the SOUT, the class of working conditions became 3.1. at the same time additional vacation is not provided and the additional payment is only 4%. Does the management of an enterprise have the right to withdraw additional leave from employees employed before 01/01/2014 and reduce the additional payment to 4%, and how to do this correctly? 3. Previously (based on the results of workplace certification), a class of 3.1 was established, while the employee received additional pay and additional leave. These guarantees were spelled out in the collective agreement, which expires in December 2017. According to the results of the SOUT, the class of working conditions remained 3.1. no holidays and surcharge of 4%. Does the management of an enterprise have the right to withdraw additional leave from employees employed before 01/01/2014 and reduce the additional payment to 4%, and how to do this correctly?
Answer
1-3. In all cases, the employer has the right to cancel guarantees if working conditions have improved. If the conditions that served as the basis for the appointment of previous compensation measures remain, then the employer does not have the right to cancel the previously assigned compensation.
Changes to an employment contract can be made by agreement of the parties or unilaterally with prior notice to the employee 2 months in advance. (cm. ).
Depending on the terms of the collective agreement, it may be necessary to change the collective agreement (see).
For more details on this, see the materials in the justification.
The rationale for this position is given below in the materials of the “Personnel System” and in the materials of the “Labor Safety System”.
1. Article: What to consider when changing the class of working conditions based on the results of a special assessment
« When is it unacceptable to reduce the amount of compensation for harm?
Based on the results of the certification in December 2013, the employee was found to have hazardous conditions. Based on the results of the special assessment, his workplace was also classified as hazardous. Now he is entitled to less favorable guarantees, although in fact the working conditions have not changed. The employee was notified of a reduction in the amount of compensation. Are the employer's actions legal?
The legislation does not have a clear answer to this question. In fact, based on the results of the previously conducted certification, the employer did not take any measures to reduce harmful factors in the employee’s work. A special assessment taking into account these same factors showed different working conditions. In such a situation, on the basis of Article 15 of the Federal Law of December 28, 2013 No. 421-FZ (hereinafter -), the employee must continue to receive all compensation that was previously established for him based on the results of certification. The latter are valid for five years from the date of completion of the procedure ().
At the same time, the employer has the right to reduce the number of compensation provided if the employee’s working conditions have improved and this is confirmed by the results of the special assessment (). Provided that the special assessment was carried out correctly, and its results were recognized by all interested parties - employer, employees, trade union committee (Part, Article 9 of Law No. 426-FZ). Justification – compensation established based on the results of certification is provided in full until a special assessment is carried out* ().
How to reflect that the terms of an employment contract have changed based on the results of a special assessment?
We conducted a special assessment in connection with the change in the technological process. The assessment results confirmed the improvement of working conditions. They are considered acceptable. Now we have to cancel the compensation established previously by the employment contract. Which article of the Labor Code should we follow: 72 or 74?
This will depend on whether the employee agrees to enter into an additional agreement to the employment contract to cancel previously established benefits. The clause on working conditions in the workplace is a mandatory condition of the employment contract (). If, as a result of the special assessment, working conditions have changed, appropriate changes must be made to the employment contract. For this purpose, the general rules provided for in the articles of the Labor Code are applied.
When an employee is dismissed due to refusal to continue working under new conditions, the employer is obliged to pay him severance pay in the amount of two weeks' average earnings (*).
When an employee agrees to draw up such an agreement, there is no need to comply with any deadline for canceling benefits - the additional agreement is concluded immediately (). If the employee refuses, then the employer has the right to cancel the compensation unilaterally by notifying the employee of the upcoming changes in writing at least two months in advance (Part, Article 74 of the Labor Code of the Russian Federation). If the employee does not agree to work under the new conditions and cannot be transferred to another job, the employer has the right to terminate the employment contract with him after two months (Labor Code of the Russian Federation). Termination of an employment contract must be formalized by order of the employer (). In any case, no matter what article you carry out the procedure under (under 72 or 74), an additional agreement is concluded with the employee to change the terms of the employment contract.
What dates should be indicated in the additional agreement on changing the terms of the employment contract?
We conducted a special assessment. The results were received on May 14, and the workers were familiarized with them on May 18. What is the date for drawing up additional agreements on the establishment or removal of harm?
Draw up additional agreements to employment contracts with the actual date. You familiarized employees with the results of the assessment of their jobs within 30 calendar days from the date of approval of the special assessment report, as required by law (). The next step is the conclusion of additional agreements to change the terms of the employment contract (the deadline for their execution depends on which article you are carrying out the procedure under) (Art., Labor Code of the Russian Federation).
Keep in mind that for those employees in whose jobs harmful conditions have been identified, the employer is obliged to provide the required guarantees and compensation (, Labor Code of the Russian Federation) (table below). Moreover, from the date of approval of the report on the special assessment (). In this case, the additional agreement to the employment contract must indicate that it is valid from the date of approval of the special assessment report 1.
Benefits and compensation for working in harmful or dangerous working conditions| Class of working conditions | Surcharge 4% | Add. vacation (from 7 days) 2 | Abbreviated 36th slave. a week 3 | |
| Dangerous | 4 | + | + | + |
| Harmful | 3.4 | + | + | + |
| 3.3 | + | + | + | |
| 3.2 | + | + | – | |
| 3.1 | + | – | – | |
| Acceptable | 2 | – | – | – |
| Optimal | 1 | – | – | – |
2. Article: How to reduce compensation for harmful working conditions?
“Oleg S. has been working as a driver at Allegro LLC since 2012. In 2013, according to the results of certification, harmful conditions of the 1st degree (3.1) were established at Oleg S.’s workplace. His working hours were reduced, he was given additional paid leave, and an additional four percent was paid to his salary. Compensation was prescribed according to (hereinafter referred to as Resolution of the Government of the Russian Federation No. 870) 1. In 2016, a special assessment confirmed subclass 3.1 in the workplace, but the employer decided to reduce the amount of compensation as it was no longer valid. On September 1, 2016, he notified the employee of the cancellation of reduced working hours and additional leave from November 3, 2016. Is this legal? In what cases can compensation for harm be canceled?
When it is difficult to determine the amount of compensation
The employer revises the amount of compensation for harm if working conditions in the workplace have changed (Article, Labor Code of the Russian Federation, Article 27 of the Law of December 28, 2013 No. 426-FZ, hereinafter –). Based on the results of a special assessment, working conditions are divided into four classes: optimal (1st class), acceptable (2nd class), harmful (3rd class), dangerous (4th class). In the 3rd class there are subclasses 3.1, 3.2, 3.3, 3.4 (). It is difficult to determine what kind of compensation to provide in two cases.
First case. The company carried out certification and after it a special assessment. Based on the results of certification, the workplace was assigned a class of at least the first degree of hazard (subclass 3.1). Based on the results of the special assessment, the subclass was confirmed or found to be lower.
Example
According to the results of certification of workplaces at the beginning of 2013, the working conditions at the workplaces of Andrey N. and Peter T. corresponded to subclass 3.2 (harmful, second degree). Employees were already working at their workplaces on January 1, 2014. Based on the results of a special assessment in 2016, Andrey’s working conditions were classified as subclass 3.1 (harmful, first degree), and Peter T.’s working conditions were classified as acceptable (2nd class). The employer reduced the amount of compensation for Andrey, as working conditions improved, and canceled them completely for Peter, since there was no harm. The employer is right.
Second case. The company conducted a special assessment and established harmful working conditions in the workplace. Then she organized a new special assessment, as a result of which the final subclass was reduced.
Example
Paradise LLC conducted a special assessment, based on the results of which the working conditions at Denis V.’s workplace were classified as harmful of the fourth degree (subclass 3.4). The employer provided Denis with all the necessary compensation. After some time, the company conducted a new special assessment. Denis’s workplace was assigned a hazardous class of the first degree (3.1). The employer left Denis only an additional payment to his salary, and canceled the additional vacation and shortened week. The employer is right.
Why employers are wrong
Important article: “What to consider when changing the class of working conditions based on the results of a special assessment” (No. 5, 2015)
The head of Allegro LLC made a mistake when he reduced the amount of compensation to Oleg S. He was guided by the articles of the Labor Code. But in the case of Oleg, different rules apply.
Compensation for hazardous work based on the results of workplace certification and special assessment
| Compensation | Classes/subclasses of working conditions | ||||
| 3.1 | 3.2 | 3.3 | 3.4 | 4 | |
| harmful | dangerous | ||||
| Based on the results of workplace certification () | |||||
| + | + | + | + | + | |
| + | + | + | + | + | |
| Surcharge 4% | + | + | + | + | + |
| Based on the results of the special assessment (Article , Labor Code of the Russian Federation) | |||||
| Shortened work week no more than 36 hours | - | - | + | + | + |
| Additional leave from 7 days | - | + | + | + | + |
| Surcharge 4% | + | + | + | + | + |
It is possible to reduce the amount of compensation for harmful effects only if working conditions at the workplace have improved 2 . Thus, Allegro LLC had to not only conduct a special assessment, but also improve working conditions in the workplace in order to reduce compensation*.
Example
At the beginning of 2013, Fregat LLC conducted a certification of workplaces, according to the results of which the working conditions at Ivan M.’s workplace were classified as hazardous, subclass 3.2. The employer provided the employee with all compensation: reduced working hours, increased wages and additional paid leave. In 2016, a special assessment confirmed the presence of harmful conditions of the second degree (subclass 3.2) in the workplace of Ivan M. The employer is obliged to maintain the employee’s previous compensation, since working conditions in the workplace have not improved.
There are three positions on what improving working conditions means (diagram below). The most common is a reduction in the final class (subclass) of working conditions.
Example
According to the results of the previous workplace certification, Dmitry V. works in hazardous working conditions of subclass 3.1. Based on the results of a recent special assessment - in hazardous working conditions of subclass 3.2. The employer does not have the right to reduce Dmitry’s compensation because it has not improved his working conditions. But for newly hired employees, the employer is not obliged to maintain the same guarantees.
How to change compensation terms in an employment contract
The provision on guarantees and compensation for work under harmful or dangerous working conditions is a mandatory part of the employment contract (). The amount of compensation based on the results of a special assessment can be reduced by agreement of the parties or at the initiative of the employer (Article, Labor Code of the Russian Federation,). If the employee agrees to the new conditions, enter into an additional agreement with him to the employment contract (sample below).
If the employee refuses, cancel the compensation unilaterally under the Labor Code. Issue an order in any form to amend the employment contract. Indicate in it the reasons and the date from which the new conditions begin to apply, taking into account the employee’s notice period. Based on the order, notify the employee in writing at least two months in advance of upcoming changes to the employment contract. Indicate specific reasons why it is impossible to maintain the previous conditions (Article 74 of the Labor Code of the Russian Federation). You can notify the employee in any way. The main thing is to confirm that the employee is aware of the upcoming changes. Familiarize the employee, against signature, with the order to change the terms of the employment contract, or send him a notice in two copies, on one of which the employee will sign.
If the employee does not agree to continue working under the new conditions, offer him in writing another vacant position that you have in the area that matches his qualifications. If there are no such positions - a lower position or lower paid work that the employee can perform taking into account his state of health (). Until the notice period for changing the terms of the employment contract expires, again and again offer the employee all the vacancies that you have. Remember that periods calculated in months expire on the corresponding date of the last month ().
As a result, the employee can:
– agree to the change in the terms of the employment contract, and you will draw up an additional agreement with him ();
– agree to the transfer to another position that you offered. You will conclude an additional agreement with him to the employment contract, issue a transfer order according to or another sample approved by the organization, make an entry about the transfer in the work book and in the employee’s personal card;
– disagree with the change in the terms of the employment contract and refuse the offered vacancies. Then you have the right to terminate the employment contract with him ().
Why is it risky to reduce compensation without notice?
Some employers believe that they do not have to give an employee two months' notice to correct the compensation clause in the employment contract (). After all, changes in the class of harm and the amount of compensation are not related to the actions of the employer, which means that changing them according to the rules of Article 74 is not required. Therefore, they believe that they can reduce compensation for harmful working conditions as soon as they approve the results of the special assessment without the prior consent of the employee. Such employers are wrong.
Changing working conditions in the workplace is the responsibility of the employer (). In addition, information about working conditions is a mandatory condition of the employment contract (). Therefore, changing the procedure for paying compensation can only be done within the framework of the Labor Code.”
3. Situation: Does the employer have the right to cancel compensation established based on the results of the automated work procedure, if class 2.0 was established during the special labor assessment, but the working conditions remained the same?
The employer is obliged, among other things, to ensure that a special assessment of working conditions is carried out. Based on its results, the employee’s work in dangerous and harmful working conditions is determined, and the issue of establishing compensation is decided ().
Based on the above, in the case of ensuring safe working conditions in the workplace, confirmed by the results of a special assessment, compensation for harmful working conditions is not established for employees, and previously established ones are subject to cancellation ().
Since the characteristics of working conditions, the amount of payment, the duration of working hours and vacation are the terms of the employment contract, bringing working conditions to normal (optimal or acceptable) requires the conclusion of an additional agreement to change the terms of the employment contract ().
If an employee refuses to conclude an additional agreement canceling compensation, the employer has the right to take the initiative to unilaterally change these conditions by warning the employee at least two months in advance, since their cancellation is caused by an objective change in organizational and technological working conditions, which is confirmed by the materials of the special assessment (). If the employee does not agree with the change, and in this case, and he cannot be transferred to another job, the employer, after two months, has the right to terminate the employment contract with him * ().”
6. Situation: How to make changes to an employee’s employment contract if, based on the results of a special assessment, harmful or dangerous working conditions are identified at his workplace
“It is necessary to conclude an additional agreement to the employment contract and secure additional guarantees in it.
If, based on the results of a special assessment, harmful or dangerous working conditions are identified at an employee’s workplace, the employer is obliged to provide him with the guarantees and compensation provided by law (). Such guarantees and compensations relate to the mandatory conditions of the employment contract, which entails the need to conclude an additional agreement to the contract, where all these guarantees will be spelled out (, Labor Code of the Russian Federation).
If for work in harmful or dangerous conditions an employee is entitled, among other things, to increased wages and additional paid leave, then, in addition to the additional agreement, issue an order to change the terms of the contract in any form.
It is necessary to draw up additional agreements with employees in whose workplaces hazardous conditions have been identified, and to extend the validity of such agreements from the date of approval of the special assessment report*. The date of approval of the report indicates the completion of the special assessment, and it is from this date that its results should be applied. Experts from the Russian Ministry of Labor also point to this.”
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