Yulia Vasilyeva
Head of the group for accreditation of foreign missions

The merger of another legal entity is a form of reorganization in which a new company is not created, but the scope of rights and obligations of the continuing company changes.

USEFUL TO KNOW: The goals of participants in the reorganization procedure in the form of a merger can be very different: from an attempt to improve their economic performance and increase their competitiveness in the market of goods, works, services, to an attempt to get rid of the obligations of the company and its creditors (the so-called “alternative liquidation”) .

YOUR POSITION: Current legislation does not provide for the possibility of participating in a reorganization by merging legal entities of various organizational and legal forms (it is impossible to merge an LLC with a JSC and vice versa).
Clause 20 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 18, 2003 No. 19.

The company to which the merger is carried out is considered reorganized from the moment an entry is made in the Unified State Register of Legal Entities on the termination of the activities of the merged company. Making entries on the termination of the activities of reorganized companies, as well as state registration of changes in the charter, is carried out in the manner established by Federal Law No. 129-FZ dated 08.08.2001 “On State Registration of Legal Entities and Individual Entrepreneurs”.

At the same time, the choice of one or another organizational and legal form does not in any way affect the reorganization process, since in general terms the merger procedure for both joint stock companies and limited liability companies (the two most popular forms) is completely identical. However, it should be taken into account that it is impossible to merge an LLC with a JSC and vice versa. If it is necessary to merge legal entities of different organizational and legal forms, it is first necessary to transform the acquiring or being acquired legal entity so that in the end all participants in the reorganization have a common organizational and legal form, and then merge. Companies in the form of CJSC and OJSC do not have such restrictions on mergers, since they have a common organizational and legal form - a joint stock company.

Algorithm of actions during reorganization in the form of affiliation

Preparation for reorganization. Determining the procedure and timing of the reorganization, agreeing and signing documents for the procedure:

• Reorganization decision
• Treaty of accession
• Transfer deed

Notification stage. Notification of the registration authority and creditors about the start of reorganization in the form of merger, including:

• Making an entry in the Unified State Register of Legal Entities about the beginning of the reorganization
• Notification of territorial bodies of the Pension Fund and Social Insurance Fund
• Publication of an advertisement in the State Registration Bulletin

Registration stage.

• Transfer of documents for state registration to the tax authority at the location of the acquiring company
• Deregistration of affiliated companies

The reorganization in the legal sense is completed, but the acquiring company needs to take a number of actions directly related to the procedure

Stage of registration of the transfer of rights and obligations.

• Transfer of accounting data of the acquired company to the accounting system of the legal successor;
• Re-registration of current accounts, transaction passports, separate divisions and branches;
• Re-registration of real estate;
• Submitting an application to the licensing authority for a new license corresponding to the type of activity of the affiliated company;
• Personnel transfer;
• Re-registration of contractual and non-contractual claims and obligations.

In general, the reorganization process can be divided into the following stages.

Making a decision on reorganization by each company participating in it.

Making such a decision falls within the exclusive competence of the general meeting of participants (clause 1 of article 57 of the Civil Code of the Russian Federation, clause 11 of clause 2 of article 33 of the LLC Law) or the sole participant of the company (Article 39 of the LLC Law). The decision must be made unanimously by the general meeting of participants of each company.

Also at this stage it is necessary to prepare a draft merger agreement and a transfer deed of the acquired company. In accordance with paragraph 1 of Art. 59 of the Civil Code of the Russian Federation, the transfer act must contain provisions on the succession of all obligations of the reorganized legal entity in relation to all its creditors and debtors, including obligations disputed by the parties. Guidelines for the preparation of financial statements during the reorganization of organizations, approved by Order of the Ministry of Finance of Russia dated May 20, 2003 No. 44n, explain what information should be reflected when drawing up the transfer act. It is recommended that the transfer act in paragraph 6 of the Methodological Instructions be timed to coincide with the end of the reporting period (year) or the date of preparation of interim financial statements (quarter, month), which is the basis for characterizing and assessing the transferred property and obligations of the reorganized organization.

The legislation contains practically no requirements for the content of the agreement, with the exception of the indication that it must contain the terms and procedure for holding a joint general meeting of company participants (clause 3 of Article 53 of the LLC Law). We believe that it should contain information about the new composition of participants in the acquiring company and the size of their shares.

In accordance with clause 3.1. Art. 53 of the Law on LLC upon merger of the company are subject to repayment:

1. shares owned by the acquired company in the authorized capital of the company to which the merger is being carried out;
2. shares in the authorized capital of the acquired company belonging to this company;
3. shares in the authorized capital of the merging company belonging to the company to which the merging is being carried out;
4. shares in the authorized capital of this company belonging to the company to which the merger is being carried out.

The general meeting of participants of each company participating in the merger makes a decision on reorganization and approval of the merger agreement, and the general meeting of the company being merged also makes a decision on approval of the transfer act (clause 2 of Article 53 of the LLC Law).

IMPORTANT IN THE WORK: There may be not one, but several, companies being merged; this does not change the essence of the legal procedure; simply the actions mentioned in the article will need to be carried out in relation to each legal entity being merged.

Joint General Meeting

The joint general meeting of participants of the companies participating in the merger makes changes to the charter of the company to which the merger is being carried out, as provided for in the merger agreement, and also, if necessary, resolves other issues, including issues of electing the bodies of the company to which the merger is being carried out.

Notice of reorganization

The company that made the decision on reorganization last, or the company determined by the decision on reorganization, within three working days after the date of the decision made by the latter, is obliged to notify the registration authority in writing about the beginning of the reorganization procedure and its form (clause 1 of article 60 of the Civil Code of the Russian Federation, Clause 1 of Article 13.1 of the Law on State Registration). The notification is submitted in form P12003. Failure to fulfill this obligation on time constitutes an offense under Part 3 of Art. 14.25 Code of Administrative Offenses of the Russian Federation.

IMPORTANT IN WORK: The course of the three-day period provided for in paragraph 1 of Art. 13.1 of the Law on State Registration, begins not from the day of the joint general meeting of participants, but from the date of the last decision made in the manner provided for in paragraph 2 of Art. 53 of the LLC Law.

In addition to the registration authority, the company is also obliged to report the reorganization within the same period to the body monitoring the payment of insurance premiums at its location (clause 3, part 3, article 28 of the Federal Law of July 24, 2009 No. 212-FZ). The special form of such a message has not been approved and can be used arbitrarily.

USEFUL TO KNOW: Previously, legislation imposed on reorganized companies also the obligation to report the decision to the tax authorities at their location in form No. S-09-4, (approved by order of the Federal Tax Service dated 06/09/2011 No. ММВ-7-6/362@) . But by Federal Law No. 248-FZ of July 23, 2013, the norm containing the corresponding obligation (clause 4, clause 2, article 23 of the Tax Code of the Russian Federation) was declared invalid as of August 24, 2013.

Publication in the State Registration Bulletin

After the date of entry into the Unified State Register of Legal Entities about the beginning of the reorganization procedure by the company that last made the decision on reorganization or a certain decision on reorganization, twice with a frequency of once a month in the journal “Bulletin of State Registration” (detailed information is posted on the website on behalf of all legal entities participating in the reorganization notice of reorganization. It contains information about each company participating in the reorganization and about the company continuing to operate as a result of the reorganization, the form of reorganization, a description of the procedure and conditions for creditors to submit their claims, other information provided for by federal laws (clause 1 of article 60 of the Civil Code of the Russian Federation , clause 5 of article 51 of the Law on LLC and clause 2 of article 13.1 of the Law on state registration).

In this case, the second notice of reorganization may be published no earlier than the day following the day of expiration of the month period from the date of publication of the first notice (clause 12 of the letter of the Federal Tax Service of Russia dated January 23, 2009 No. MN-22-6/64).

We notify creditors

Within five working days after the date of sending the notice of the start of the reorganization procedure to the registration body of the company, the company is required to notify in writing the creditors known to them about the start of the reorganization (Clause 2 of Article 13.1 of the Law on State Registration, Resolution of the Ninth Arbitration Court of Appeal dated August 29, 2011 No. 09AP -17176/11).

Accounting

In accordance with paragraphs. 2, 3 tbsp. 16 of the Federal Law of December 6, 2011 No. 402-FZ “On Accounting” when reorganizing a legal entity in the form of merger, the last reporting year for a legal entity that merges with another legal entity is the period from January 1 of the year in which the entry was made in the Unified State Register of Legal Entities on the termination of the activities of the affiliated legal entity before the date of its entry.

The reorganized legal entity draws up the latest accounting (financial) statements as of the date preceding the date of state registration of the last of the legal entities that emerged (the date of entry into the Unified State Register of Legal Entities on the termination of the activities of the affiliated legal entity).

IMPORTANT IN WORK: Accounting of transactions and their reflection in reporting during reorganization, in particular, in the form of affiliation, is carried out in accordance with the Guidelines for the preparation of financial statements during the reorganization of organizations, approved by Order of the Ministry of Finance of Russia dated May 20, 2003 No. 44n.

By virtue of clause 9 of the Methodological Instructions for the preparation of financial statements when reorganizing organizations, on the day preceding the date of entry into the Unified State Register of Legal Entities the corresponding entry on the termination of activities, the reorganized organization that is terminating its activities prepares final financial statements.

According to clause 20 of the Methodological Instructions for reorganization in the form of merger, the final financial statements are prepared only by the merging organization on the day preceding the entry into the Unified State Register of Legal Entities about the termination of its activities. In this case, the profit and loss account is closed and the amount of net profit of the joining organization is distributed (directed to certain purposes) on the basis of the agreement on the merger of the founders.

An organization in which, in the process of joining another organization to it, on the basis of a decision of the founders, only the volume of property and liabilities changes and the current reporting year is not interrupted, the closure of the profit and loss account in the financial statements does not produce the final accounting statements on the date of state registration of termination does not formulate the activities of the acquired organization in relation to the provisions of clause 9 of the Methodological Instructions (clause 21 of the Methodological Instructions).

Article 18 of Law No. 402-FZ establishes the obligation of economic entities (except for public sector organizations and the Central Bank of the Russian Federation) to submit one legal copy of annual accounting (financial) statements to the state statistics body at the place of state registration no later than three months after the end of the reporting period .

That is, the norms of the legislation on accounting, even after the entry into force of Law No. 402-FZ, still provide for the preparation of final financial statements, but do not regulate the procedure and timing of its submission to the tax authority. In turn, paragraphs. 5 p. 1 art. 23 of the Tax Code of the Russian Federation provides that the taxpayer is obliged to submit financial statements to the tax authority at his location, however, from January 1, 2013, this obligation is also provided only for annual financial statements.

Thus, the current legislation does not provide for the submission of final financial statements to the tax authority during reorganization. Moreover, from the moment an entry is made in the Unified State Register of Legal Entities about the termination of the activities of the affiliated organization, its obligation to submit financial statements to the tax authorities ceases, since it is removed from tax registration as a legal entity (clause 5 of Article 84 of the Tax Code of the Russian Federation). In other words, from the moment of making a record in the Unified State Register of Legal Entities on the termination of the activities of the affiliated organization, the affiliated organization has no obligation to submit final financial statements to the tax authority with which it was registered. At the same time, in our opinion, the successor organization also does not have the obligation to present the final financial statements of the affiliated organization.

USEFUL TO KNOW: Federal Law No. 423-FZ dated December 28, 2013, the notification procedure provided for in Art. 30 of the Federal Law “On the Protection of Competition” (no later than forty-five days after the date of accession, the company must notify the antimonopoly authority of the reorganization), repealed.

State registration of reorganization

The documents specified in clause 3 of Art. 17 of Law No. 129-FZ on state registration.

If changes are made to the constituent documents of a legal entity continuing its activities, their state registration is carried out in accordance with paragraph 1 of Art. 17 of the Law on State Registration. An application is submitted to the state registration authority in form P12001. In relation to the acquired legal entity that ceases its activities, an application is submitted in form P16003. In addition, an application is submitted to the registering authority to make changes to the Unified State Register of Legal Entities regarding information about its participants or other information, in accordance with clause 2 of Art. 17 of the Law on State Registration. Registration is carried out within no more than five working days from the date of submission of documents to the registering authority (clause 3 of Article 18 of the Law on State Registration). Upon merger, all rights and obligations of the merged company in accordance with the transfer act are transferred to the company that continues to operate (Clause 4, Article 53 of the LLC Law). In addition, the LLC being merged must be removed from tax registration.

Tax audit

When one legal entity merges with another legal entity, the legal successor of the merged legal entity in terms of fulfilling the obligation to pay taxes is recognized as the legal entity that merged it. The legal successor of the reorganized legal entity in the execution of Art. 50 of the Tax Code of the Russian Federation, the obligation to pay taxes and fees (fines, fines) enjoys all rights, fulfills all obligations in the manner prescribed by the Tax Code of the Russian Federation for taxpayers (clause 2 of Article 50 of the Tax Code of the Russian Federation).

When conducting an on-site tax audit carried out in connection with the reorganization, a period not exceeding three calendar years preceding the year in which the decision to conduct the audit was made (clause 11 of article 89 of the Tax Code of the Russian Federation, see also clause 8 of the letter of the Federal Tax Service of Russia dated 09.13.2012 No. AS-4-2/15309, letter of the Ministry of Finance of Russia dated 07.29.2011 No. 03-02-07/1-267).

Thus, the tax authority has the right to conduct an on-site tax audit of the legal successor for the period of activity of the reorganized legal entity (merged), not exceeding three calendar years preceding the year in which the decision to conduct the specified tax audit was made. The tax authorities can conduct an audit of the activities of a reorganized entity both as part of an unscheduled on-site tax audit of this entity, and as part of an audit of the activities of the taxpayer-legal successor regarding the fulfillment of the obligations transferred to him to pay taxes from the reorganized (merged) entity (letter of the Ministry of Finance of Russia dated 16.12. 2011 No. 03-02-07/1-435, resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated January 14, 2008 No. A82-4644/2007-14 (by the decision of the Supreme Arbitration Court of the Russian Federation dated May 19, 2008 No. 5863/08, the transfer of this case to the Presidium of the Supreme Arbitration Court was refused RF), West Siberian District dated April 14, 2008 No. F04-2275/2008(3239-A27-15), resolution of the Federal Antimonopoly Service of the North-Western District dated September 19, 2013 No. A56-75256/2012 (determined by the Supreme Arbitration Court of the Russian Federation dated December 23, 2013 No. VAS-18603/13 refused to transfer this case to the Presidium of the Supreme Arbitration Court of the Russian Federation), determination of the Supreme Arbitration Court of the Russian Federation dated September 10, 2010 No. VAS-11575/10).

The Tax Code of the Russian Federation has not established any special rules for conducting such a check (see also letter of the Ministry of Finance of Russia No. 03-02-07/1-48 dated 02/05/2009). At the same time, we draw attention to clause 7 of the letter of the Federal Tax Service of Russia dated December 29, 2012 No. AS-4-2/22690, which states that if such accession occurred before the start of the audit, the decision to schedule an on-site tax audit is made in relation to the audited enterprise with a separate indication of the name of the affiliated organization. If the reorganization occurred during the audit, then a separate decision is made to order an audit of the taxpayer in relation to the merged organization. The departments of the Federal Tax Service of Russia for the constituent entities of the Russian Federation were instructed to bring this letter to the lower tax authorities.

The taxpayer is obliged to ensure that tax officials conducting an on-site tax audit have the opportunity to familiarize themselves with documents related to the calculation and payment of taxes (clause 12 of Article 89 of the Tax Code of the Russian Federation). When conducting an on-site tax audit, the taxpayer may be required to provide the documents necessary for the audit in the manner prescribed by Art. 93 Tax Code of the Russian Federation.

Question for a lawyer:

She worked at SevNTU for 40 years, of which 20 years as an engineer of the 1st category. Currently, the university is being reorganized into the legal framework of the Russian Federation. They offered to write a letter of resignation from December 31, 2014 and employment from January 1, 2015 to the same position. Then, forcibly reassigned to the position of engineer without specifying a category. With a salary reduction of 4 thousand rubles.. Under an employment contract for half a year. Is the administration's action legal and what should I do?

Lawyer's answer to the question: reorganization of universities
Is the administration's action legal and what should I do?

The demands are not legal.

Write a complaint to the labor inspectorate.

GOOD LUCK TO YOU
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Is it possible to transfer to another university while maintaining a budget place, transfer due to the reorganization of the university. To another university...

Question for a lawyer:

Hello. Is it possible to transfer to another university while maintaining a budget place, transfer due to the reorganization of the university. They transfer to another university, but on a paid basis and there were no budget places for this specialty.

Lawyer's answer to the question: reorganization universities
Good afternoon

Possible only if budget places are available.
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Is it possible to transfer to another university on a budget due to the reorganization of the university...

Question for a lawyer:

You can transfer to another university on a budget due to the reorganization of the university. I study on a budget

Lawyer's answer to the question: reorganization of universities
If such a circumstance is provided for in the agreement between you
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Department) during reorganization at the university (merger of 2 departments with a change in name)?...

Question for a lawyer:

Hello. Tell me, can I apply for the same position (for example, head of a department) during a reorganization at the university (merger of 2 departments with a change in name)? What should I do if 2 candidates apply for 1 position? My employment contract for the position of head of the department is valid until 03/25/15. Thank you

Lawyer's answer to the question: reorganization of universities
If a new legal entity is formed, then you may be fired with payments as in case of staff reduction (Article 178 of the Labor Code of the Russian Federation)
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Lawyer's answer to the question: reorganization of universities
You can apply, but you won’t get it. They may cut them by offering other vacancies.
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We have had a reorganization of the university by merging with another university that does not have those specialties and areas of training...

Question for a lawyer:

We have undergone a reorganization of the university by merging with another university that does not have those specialties and areas of training that are licensed and accredited by us until they are replaced by a new university. Are our previous licenses and accreditation certificates valid, if so, on the basis of what acts?

Lawyer's answer to the question: reorganization of universities
Good evening Rustem!

Please clarify whether you were affiliated to another university or whether they were affiliated to you. And according to the charter and legal documents, who is the director of the one who was merged or another university? Licenses were issued to one person in accordance with Federal Law.

In accordance with paragraphs. 2 clause 9 art. 33.1. Law of the Russian Federation “On Education”, in the event of the emergence of an educational institution as a result of reorganization in the form of a merger (if one or more reorganized legal entities have a license), the document confirming the presence of the license is reissued. In this case, re-registration is carried out on the basis of licenses of one or more reorganized legal entities. Since a general education school has the right to implement preschool education programs, but not vice versa, it appears that the school license will be the basis for licensing the educational activities of the organization created as a result of the merger.

All main types of general education institutions are listed in clause 1 of the Model Regulations on General Education Institutions, approved. Decree of the Government of the Russian Federation of March 19, 2001 No. 196. These include:

primary comprehensive school;

basic secondary school;

middle School of General education;

secondary school with in-depth study of individual subjects;

gymnasium;

A pro-gymnasium is a type of preschool educational institution in accordance with clause 4 of the Model Regulations on an educational institution for children of preschool and primary school age, approved. Decree of the Government of the Russian Federation of September 19, 1997 No. 1204.

The Draft Law “On Education in the Russian Federation” does not provide for the division of educational organizations into types within the same type. In accordance with paragraph 6 of Art. 23 of the Bill, educational organizations within the same type can use special names in their names in accordance with the characteristics of the educational activities carried out (levels and focus of educational programs, integration of various types of educational programs, special conditions for their implementation and (or) special needs of students), as well as additionally performed functions related to the provision of education (maintenance, treatment, rehabilitation, correction, psychological and pedagogical support, boarding school, research, technological activities and others provided for by the legislation on education).
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Due to the reorganization of the university and changes in working conditions, the position I held was reduced. I was offered...

Question for a lawyer:

Due to the reorganization of the university and changes in working conditions, the position I held was reduced. I was offered another position or dismissal under Article 77 of the Labor Code of the Russian Federation (an employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties). Because I would not like to have a notice of dismissal under such an article in my employment record; I gave my consent to the work. I am wondering if, after being hired, I can immediately resign of my own free will (with a two-week period of work, of course). Thanks in advance for your answer. Natalia

Lawyer's answer to the question: reorganization universities
Yes, you have every right to quit.
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Does a university have the right to increase student tuition fees in connection with the reorganization of the university by joining another federation…

Question for a lawyer:

Two years of studying for my daughter at Federal State University named after. I paid 29 thousand rubles per year to M.V. Lomonosov Koryazhma, according to the relevant agreement, but this academic year there was an reorganization university at FSAFU named after. M.V. Lomonosov., by accession. We are required to sign a new agreement on training and payment (already in the amount of 30,740 rubles), and I also quote: In cases of an increase in costs associated with the provision of educational services, based on the calculation of costs and/or the predicted level of inflation determined by the legislation of the Russian Federation, the Contractor ( i.e. the university) has the right to unilaterally change the cost of education for each subsequent academic year. And before that (February 9, 2011), we signed a notice that NArFU would transfer all rights and obligations to FPGU. Are their actions legal and is it worth challenging the contract? My child is a good student, participates in the life of the university, and somehow I don’t want to be expelled for failure to fulfill an agreement.

Lawyer's answer to the question: reorganization of universities
In your first contract, was the basis for the increase in payment indicated the level of inflation or did not say anything about it at all? Is the quote given from the new or old contract?

The information published by Rosstat contains official data on inflation.
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This is the situation: after the reorganization, all students were transferred to another university. I paid for my studies, then we formed our group and...

Question for a lawyer:

This is the situation: after the reorganization, all the students were transferred to another university. I paid for my studies, then they gathered our group and said that they had changed the direction. Now I want to transfer to another university in the direction in which I studied initially. What should I do?

Lawyer's answer to the question: reorganization universities
Order of the Ministry of Education of the Russian Federation dated December 20, 1999 N 1239 “On approval of the Procedure for transferring students from one secondary specialized educational institution to another secondary specialized educational institution and from a higher educational institution to a secondary specialized educational institution” established the procedure for such a transfer.

When transferring from one educational institution to another, the student is expelled in connection with the transfer from the original educational institution and is accepted (enrolled) in the order of transfer to the receiving educational institution.

The transfer of a student can be carried out both to the same specialty, level of secondary vocational education and form of study in which the student is studying at the original educational institution, and to another specialty, level of secondary vocational education and (or) form of study.

Transfer of students is carried out to free places in the corresponding course in the specialty, level of secondary vocational education (basic, advanced) and form of study to which the student wants to transfer (hereinafter referred to as the corresponding free places).

The transfer of a student is carried out at his request in accordance with the results of certification, which can be carried out by reviewing a copy of the record book, an interview, or in another form determined by the receiving educational institution. To pass certification, the student submits to the receiving educational institution a personal application for admission by transfer, to which is attached a copy of the record book, certified by the original educational institution. The application indicates the course, specialty, level of secondary vocational education, form of education to which the student wants to switch, and the education on the basis of which the student receives secondary vocational education.

If the transfer issue is resolved positively based on the results of certification and competitive selection, the receiving educational institution issues the student a certificate of the established form (appendix).

The student submits to the original educational institution the specified certificate, as well as a personal statement about expulsion in connection with the transfer and the need to issue him an academic certificate and a document on education, on the basis of which the student receives secondary vocational education (hereinafter referred to as the document on education).

Based on the submitted documents, the head of the original educational institution, within 10 days from the date of submission of the application, issues an order to expel the student

In this case, the student is issued a document on education (from his personal file), as well as an academic certificate of the established form. It is allowed to issue the specified documents to a person who has a power of attorney in the established form.

The student hands over his student ID and grade book.

A copy of the education document certified by the educational institution, an extract from the order of expulsion due to transfer, a student ID and a grade book remain in the student’s personal file.

The student submits a document on education and an academic certificate to the receiving educational institution. In this case, the compliance of the copy of the grade book submitted for certification with the academic certificate is checked. After submitting the specified documents, the head of the receiving educational institution issues an order to enroll the student in the educational institution in the order of transfer. Before receiving the documents, the head of the host educational institution has the right to admit the student to classes by his own order.

At the receiving educational institution, a student’s personal file is created and registered, in which an application for admission by transfer, an academic certificate, a document on education and an extract from the order of enrollment by transfer, as well as an agreement are entered, if enrollment is carried out in places with payment tuition fees.

The student is issued a student ID and a grade book.

If a student has successfully passed certification, but based on the results of certification, any disciplines (sections of disciplines) and (or) types of educational activities (industrial (professional) practice, course design, etc.) cannot be credited to the student, then the student’s enrollment is subject to the condition subsequent elimination of academic debt.

In this case, the enrollment order may contain a record of approval of the student’s individual educational plan, which should provide for the elimination of academic debt.
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The Institute plans to merge two departments into one, with a change in the general name. How should this be reflected correctly in general orders: changes in the structure, reorganization, merger? And what documents for employees to prepare. Do you need to notify employees about this two months in advance, if they perform the same functional duties, only the name of the department will change? What kind of personnel order should there be regarding personnel: about transfer to another department or in another way? If someone’s workload changes, should they be warned 2 months in advance?

Answer

Answer to the question:

First of all, you need to change the staffing table by issuing an order, which either approves a new staffing table or makes changes to the existing staffing table.

For example:

“….In order to… unite department A and department B, in connection with which:

1. Remove from the organization’s staffing table:
- department A;
— departmentB.

2. Reduce the following positions:
— head of department A;
- Head of Department B.

As for other employees, if in the employment contracts the department Not was indicated, then a change in the department does not entail a change in the employment contract (as follows from the question, the labor function does not change) and in this case it is necessary to formalize the transfer by issuing.

If the department is specified in the employment contract, then changing the department for the employee will be a transfer, because The department is not renamed, it is liquidated and a new one is created in its place.

In this case, you can formalize the transfer (conclude additional agreements and issue an order) with the consent of the employees, or change the structural unit at the initiative of the employer in accordance with Art. 74 of the Labor Code of the Russian Federation, notifying employees at least two months in advance. For more details, see the materials of the Personnel System in answer No. 2.

As for reducing the teaching load, according to clause 1.7 of Appendix 2 to a temporary or permanent change (increase or decrease) in the teaching load of teaching staff compared to the teaching load specified in the employment contract, it is allowed only by agreement of the parties to the employment contract, concluded in writing form, with the exception of changes in the volume of teaching workload of teaching staff in the direction of its reduction, provided for and.

The employer is obliged to notify teaching staff in writing about changes in the volume of teaching load (increase or decrease), as well as the reasons that necessitated such changes. no later than two months in advance before the implementation of the proposed changes, with the exception of cases when the change in the volume of the teaching load is carried out by agreement of the parties to the employment contract (clause 1.8 of Appendix 2).

Thus, if a change in workload occurs by agreement of the parties to the employment contract, then two months’ notice is not required. If the workload changes at the initiative of the employer in connection with organizational changes, then it is necessary to notify at least two months in advance, and also comply with other requirements established by Art. 74 Labor Code of the Russian Federation.

Details in the materials of the Personnel System:

To formalize the transfer of an employee, it is not necessary to obtain his consent (). It is enough to issue a movement order and familiarize the employee with it against his signature. The basis for issuing an order, in particular, may be an internal memo from the head of a structural unit. It must state why the transfer is necessary. There are no unified forms. Therefore, they can be compiled in any form.

Advice: for convenience, when drawing up a transfer order, you can take as a basis the unified form of an order for transfer to another job () (). The details of this form are suitable for both transfer and relocation.

The role of the order can also be carried out in writing by the employee’s immediate supervisor, if he is authorized to give such orders.

When moving, there is no need to draw up an additional agreement to the employment contract. There is also no need to make entries in the employee’s work book and his (Rules, approved, instructions, approved).

Advice: The Labor Code of the Russian Federation does not provide for the procedure for registering the transfer of an employee. So keep it local. For example, in . This will help you avoid conflicts with employees and will give you the opportunity to hold them accountable for refusing to move.

Ivan Shklovets,

Deputy Head of the Federal Service for Labor and Employment

1. Answer: What documents need to be completed when moving an employee?
2. Answer: How to make changes to an employment contract if they are caused by a change in organizational or technological working conditions in the organization

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, technical regulations, which led to a reduction in the employee’s workload, as well as changes in the rules for operating equipment, improvement of workplaces ();
• structural reorganization of production, for example, the exclusion of any stage of the production process, the introduction of new labor regimes, changes in the remuneration system in the organization as a whole, labor standardization systems, redistribution of tasks and areas of responsibility between structural divisions;

• other changes in organizational or technological working conditions that led to a reduction in the employee’s workload.

If the additional agreement is not executed in a timely manner, but the employee continues to work under the new conditions after notification of the changes, this means that the employee has actually agreed to such changes. The legality of this approach is confirmed by the courts (see, for example,).

If the employee does not agree to work under the new conditions, the organization is obliged to offer him another job, including a lower-ranking one with lower pay, if the organization has suitable vacancies. An employee should only be offered vacancies that are available to the employer in the given area. Job vacancies in other locations should be offered only if this is provided for in a collective (labor) agreement or other agreements. This procedure is enshrined in Article 74 of the Labor Code of the Russian Federation.

If the employee refuses to work under the new conditions or there are no suitable vacancies in the organization, the employment contract can be terminated:

• on reduction on the basis of Part 1 of Article 81 of the Labor Code of the Russian Federation - if we are talking about changing the working regime, namely the introduction of a part-time regime ();
• in connection with the refusal to continue work in new conditions on the basis of Part 1 of Article 77 of the Labor Code of the Russian Federation also with - in all other cases ().

An employer can dismiss an employee due to refusal to continue working under new conditions only after two months have passed from the date of notification of a change in the terms of the employment contract. The law does not provide for the possibility of early dismissal. A similar position is reflected in and confirmed by judicial practice. See, for example,. The only option is to come to an agreement with the employee and formalize the dismissal earlier, but on a different basis, for example, by paying an attractive amount of compensation.

Employees can be dismissed due to refusal to continue working under new conditions on the basis of Part 1 of Article 77 of the Labor Code of the Russian Federation: Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2. If the employer cannot provide such evidence and connect one with the other, then changing the terms of the employment contract, and therefore the dismissal of employees who refused to continue working under the new conditions, may be considered illegal. The courts also point to this, see, for example, a ready-made plan for the main affairs of the personnel officer for the first quarter of 2019
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How to re-issue a previously concluded agreement during reorganization through the merger of an institution?

Answer

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In accordance with Part 6 of Art. 95 of Law No. 44-FZ provides for the case of a change of customer, when the rights and obligations of the customer provided for in the contract are transferred to the new customer.

In turn, according to Part 1 of Art. 57 of the Civil Code of the Russian Federation (part one) reorganization of a legal entity ( merger, accession, division, separation, transformation) can be carried out by decision of its founders (participants) or a body of a legal entity authorized to do so by the constituent document.
As for succession upon merger of legal entities, according to Part 2 of Art. 58 of the Civil Code of the Russian Federation, when a legal entity is merged with another legal entity to the latter the rights and obligations of the affiliated legal entity are transferred. *

Thus, the norms of the Civil Code of the Russian Federation, when reorganizing a legal entity by merger, do not provide for the re-execution of contracts, the obligations under which are transferred to the legal successor. Therefore, in our opinion, there is no need to terminate contracts that were concluded by the customer before its reorganization.

Additionally, we inform you that in accordance with Part 26 of Art. 95 of Law No. 44-FZ, information about a change in a contract or termination of a contract, with the exception of information constituting a state secret, is posted by the customer in the unified information system within one business day following the date of the change in the contract or termination of the contract.
Therefore, within one working day following the date of conclusion of the additional agreement on the change of the customer, the customer must enter information about such change in the register of contracts.
Thus, in your case, the customer can sign additional agreements to the contracts, indicating to one of the parties to the contract the legal successor, the reason for the change of the customer (organization), new bank details and continue to work under previously concluded contracts. *

If we are talking about the reorganization of the customer, then in Part 6 of Art. 95 of Law No. 44-FZ provides for the case of a change of customer, when the rights and obligations of the customer provided for in the contract are transferred to the new customer.

The norms of the Civil Code of the Russian Federation, when reorganizing a legal entity by merger, do not provide for the re-registration of contracts, the obligations under which are transferred to the legal successor. Therefore, in our opinion, there is no need to terminate the contracts. The customer can sign additional agreements to contracts, indicating to one of the parties to the contract the legal successor, the reason for the change of customer, new bank details and continue to work under previously concluded contracts.