Labor relations during reorganization by merger. Reorganization: how to reflect it in personnel documents

Reorganization is a complex legal process that inevitably affects the interests of employees.

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Regardless of the type of transformation, the founders are required to properly formalize the dismissal.

Regulations

Labor Code of the Russian Federation:

Art. 75 – legal consequences for employees during reorganization;
Art. 81 – features of employee dismissal;
Art. 77 – entry in the work book upon dissolution of the company;
Art. 178 – rules applicable to employees during the merger or acquisition of companies;
Art. 180 – guarantees provided during liquidation or reduction.

Other:

Letter of Rostrud No. 276-6-0 on the benefits of employees during layoffs due to the reorganization of the company.

What does the law say?

Reorganization is aimed at terminating or temporarily stopping the activities of an enterprise in connection with the transfer of rights and obligations.

It can be carried out in different forms:

Merger— a new legal entity is formed by merging two or more enterprises. As a result, a large one is created, and this entails an improved position in the market.
Accession– the activities of one or more companies are terminated, all rights are transferred to a separate legal entity. The procedure is carried out only with the consent of authorized bodies.
Separation– the organization splits into several legal entities. All assets and debts are distributed equally among the new owners.
Conversion– there is a change in the organizational and legal form due to an increase in the number of founders, an increase in additional investments and other reasons.
Selection– creation of subsidiaries on the basis of the “parent” without stopping its activities. New companies have their own seal, charter, and executive bodies.

According to the legislation of the Russian Federation, dismissal of employees in connection with reorganization is possible only on their initiative.

The reason is precisely the refusal to work under changed conditions, and not own wish. This formulation is inappropriate in such a situation.

In the event of an incorporation or merger of legal entities, extra employees appear.

The manager will have to terminate the employment relationship with some of them. The advantage always remains on the side of more qualified, experienced staffing units with high performance.

This rule applies to all matching positions.

Under equal conditions, the chances of being laid off are less for employees who have dependent relatives, disabled combat veterans, and employees who improve their skills by order of the director.

Additional information is written in .

By law it is prohibited to reduce:

employees who are in or caring for a child under 1.5-3 years old;
women raising minor children;
single parents;
persons caring for disabled people;
located in or on .

Employees who continue to work for the reorganized company retain all rights.

Management must make changes to the personal card and make the necessary personnel decisions.

The procedure for registering dismissal during reorganization

When an employee refuses to cooperate on changed terms or falls under, it is important to properly formalize the agreement.

The procedure follows the following algorithm:

Issuing an order to reorganize the company. It must indicate the changed information about the employer, the reorganization form, the date of making entries in the personal file and work books subordinates, information about notification. The document must be signed by the manager and recorded in the journal to control incoming orders.
Drawing up a notice of change of ownership, reduction or. Should be made in two copies. The employee must affix a date and signature confirming that he has read the information. In some situations, for example, when, it is necessary to timely hand over the document personally to the employee - within two months before the start of all formalities for termination of activity.
should be the same as in the order: indicating the grounds for termination of cooperation and reference to the law Labor Code. A similar entry is made on the personal card. The document is handed over to the employee on the day of dismissal.

Examples of documents:

Example of employee notification

Example of entries in a work book

According to Labor legislation, if the owner changes, the contract is terminated within three months from the date of official receipt of the status legal entity.

The new owner has the right to interrupt cooperation with the manager, deputy, chief accountant, etc.

Dismissal during the reorganization of an enterprise in the form of affiliation or merger occurs according to a similar scheme.

The difference is that the employer is not obliged to warn subordinates about upcoming changes.

Another difference is that many are laid off.

It is for them that the Labor Code provides guarantees:

The director is obliged to offer a vacant position (if available). If the employee is satisfied with the option, it is possible.
The agreement can be terminated before the reorganization process begins. This happens when an employee finds another job.

Pay Money, among which:

salary;
bonuses;
benefits for the period of employment;
other compensation provided for by local documents.

The nuances of dismissal of different categories of employees

Termination of an employment contract due to reorganization is possible only with the director, deputies and chief accountant.

In other cases, the reason is either staff reduction.

Let's look at the features of dismissal for different categories:

Women with family responsibilities. When reorganizing an institution, the Labor Code prohibits the dismissal of employees on maternity leave or pregnant women at the initiative of the employer. The exception is a procedure leading to the liquidation of the company or one’s own desire.
Employees on sick leave. Dissolution of an enterprise can begin when an employee is on leave due to temporary disability and is laid off. During this period, dismissal will be considered illegal; you should wait until you return. However, it is advisable to send a notice to your home address about the upcoming reorganization and reduction.
Part-time employees are employees who work part-time. They are full-fledged employees with social guarantees. occurs according to the general principle.
Pensioners and persons of pre-retirement age. There are no separate benefits provided for this category of people in the event of layoffs. They only have an advantage in high level qualifications and rich practical experience, which increases the chances of remaining in the organization.

In all the cases considered, dismissal is processed in accordance with the general procedure.

If an employee refuses to continue cooperation in connection with the reorganization, dismissal occurs on the basis of Art. 77 clause 6 of the Labor Code of the Russian Federation.

He must write in any form, after which an order is issued and the necessary calculations are made.

The company must compensate:

Salary for the period worked is determined based on the days actually worked and the average daily salary.
Days of unused rest (annual and ) - the number of days is multiplied by the average daily wage.
Bonus accruals are calculated based on the percentage of the salary pre-established in local documents.
Cash for the period of employment (in case of reorganization leading to staff reduction) is equal to a monthly salary and is paid for 1-2 months (in some cases the period is extended to 3).

Other payments provided for by the collective agreement (by decision of the employer).

Example:

The company Module Plus CJSC is planning a reorganization, carried out in the form of a merger with another company into a new legal entity - Torg Profi OJSC. As a result, it became necessary to lay off employees, including accountant N.I. Shelepanova. The dismissal order was issued on March 28, 2016. The initial data is presented in the table. The task is to determine the compensation that should be provided by Torg Profi OJSC.

Solution:

Calculation of wages for hours worked:

Since N.I. Shelepanova was registered with Module Plus CJSC until March 28, 2019, therefore, she was entitled to payments for 18 working days.

The value will be: 18 days x 1113 rubles. = 20,034 rub.

Compensation for unused days rest will be equal to: 18 days x 1113 rub. = 20,034 rub.

Bonuses included in salary: 32,700 x 0.2 = 6,540 rubles.

Severance pay: 32,700 x 2 months. = 65,400 rub.

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

1) draw up a draft staffing table;

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

3) notify employees about the upcoming reorganization;

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

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

6) transfer personnel documents to the successor organization.

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

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

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

Until the reorganization is completed (i.e., before this fact is registered in the Unified State Register of Legal Entities), it is worth developing the following documents: Internal rules labor regulations, Regulations on remuneration, Regulations on financial incentives, standard form employment contract.

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

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

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

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

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

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

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

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

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

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

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

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

How to fire employees. During the reorganization process, an employee can be dismissed in two cases:

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

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

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

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

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

Based on the refusal, it is necessary to issue a dismissal order in Form No. T-8 (or in a self-developed form) and make a corresponding entry in the employee’s work book (clause 15 of the Rules approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225).

2. Reorganization is accompanied by a reduction in the number or staff of the organization. The territorial body of the employment service must be notified of the upcoming termination of the employment contract - no later than two months before upcoming reduction number (staff) of employees and possible termination employment contracts. And if there is a possibility of mass dismissal of employees - no later than three months before the start of the relevant measures (clause 2 of article 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1);

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

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

50 or more people within 30 days;
200 or more people within 60 days;
500 or more people within 90 days;
1 percent total number working for 30 days in regions with a population of less than 5,000 people.

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

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

You also need to notify:

the elected body of the primary trade union organization (if there is one) - in writing, no later than two months before the upcoming reduction in the number (staff) of employees and possible termination of employment contracts, and if there is a likelihood of mass dismissal of employees - no later than three months before the beginning of relevant activities;
the dismissed employee - personally and against signature, and no less than two months before the dismissal (Part 2 of Article 180 of the Labor Code of the Russian Federation). In this case, the employer is obliged to offer the employee another available job - vacant positions, including vacant lower positions or lower-paid jobs (Part 3 of Article 81, Part 1 of Article 180 of the Labor Code of the Russian Federation).

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

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

the employee will give written consent to terminate the employment contract before the expiration of two months from the date of notice of dismissal;
the employer will pay the employee additional compensation in the amount of average earnings, calculated in proportion to the time remaining before the expiration of a two-month period from the date of notice of dismissal.

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

How to formalize personnel changes in connection with the reorganization. After the reorganization (i.e., after the reorganization is registered), the successor organization must issue an order on personnel changes.

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

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

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

make changes to employee employment contracts (i.e. sign additional agreements in cases where necessary);
make appropriate entries about the reorganization in the workers’ work books.

Additional agreements to employment contracts must be signed:

with employees who worked before registration of the reorganization in another company (reorganized legal entity). The content of the additional agreement is the changed details of the employer (Part 1 of Article 57 of the Labor Code of the Russian Federation);
with all employees whose terms of employment contracts have changed (Article 72 of the Labor Code of the Russian Federation). The content of the additional agreement is the new terms of the employment contract.

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

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

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

An entry about the transfer must be made in the employee’s work book no later than a week from the date of transfer (clause 4, 10 of the Rules for maintaining work books).

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

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

Features of personnel changes during the merger process

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

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

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

Features of personnel changes during the accession process

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

or only for employees of the acquired organization;
or for employees of both organizations - the acceding one and the main one (i.e., the one to which the affiliation is being carried out).

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

acquires a company with a similar business in another city or constituent entity of the Russian Federation (i.e., becomes its sole participant by acquiring shares or shares);
wants to turn this company into his own or another separate division.

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

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

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

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

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

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

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

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

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

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

Features of personnel changes during the separation process

The heads of companies created during the separation process need to issue an order on personnel changes in connection with the reorganization.

This document should contain a list only of those employees of the reorganized company who are going to work for a specific successor, that is, in the company created during the division process.

Features of personnel changes during the separation process

The head of the company created during the spin-off process needs to issue an order on personnel changes in connection with the reorganization.

This document should contain a list only of those employees of the reorganized company who are transferring to work for the created company (i.e., the successor).

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

Features of personnel changes in the transformation process

During reorganization in the form of transformation, labor and, if any, collective agreements remain in effect. There are no grounds for terminating employment contracts with employees (Articles 43, 75 of the Labor Code of the Russian Federation).

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

You need to make an entry in your work books about the transfer of employees to a new company due to reorganization. Column 3 of the book may contain the following wording: “Closed Joint-Stock Company“Mir” was transformed into a limited company “Mir” (LLC “Mir”) from October 1, 2014.”

Difficulties of reorganization, which takes place within a limited time frame

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

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

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

2. New structural divisions emerge

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

3. Conflicts and misunderstandings arise with the trade union

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

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

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

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

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

5. Employees quit and/or argue with the employer

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

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

and again on the reorganization of government institutions in the form of annexation. Please tell me, the date on additional agreements with employees of the acquired institution should coincide with the date of the amendment to the Unified State Register of Legal Entities on the termination of the reorganization? Accordingly, the new staffing schedule begins to operate from the moment the reorganization is completed or from the moment established by the founder (order of the Ministry)? The management insists on concluding additional agreements from 01.03. (in accordance with the order), and the reorganization will actually end by 01.04.. (after the second publication). What to refer to? Thank you in advance.

Answer

Answer to the question:

Reorganization of the organization, in accordance with Part 5 of Art. 75 of the Labor Code of the Russian Federation cannot be a basis for terminating employment contracts with employees of an organization.

Thus, when the employing organization merges with another organization, labor relations with employees continue on the basis of the employment contracts that were concluded with them before the reorganization. The Labor Code of the Russian Federation does not provide for the obligation to conclude additional agreements to employment contracts with employees of the acquired organization.

Meanwhile, in practice, in order to reflect the fact of the reorganization of the organization and the changes that have arisen (at least this is a change in the name of the employer and its details), additional agreements are concluded with employees to employment contracts.

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

Ivan Shklovets,

2. Answer: To formalize personnel changes during reorganization:

Ivan Shklovets,

Deputy Head Federal service on labor and employment

3. Answer: How to process the transfer of an employee during an organization reorganization

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

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

Ivan Shklovets,

Deputy Head of the Federal Service for Labor and Employment

4. Answer: How to transfer personnel documents to the successor organization during the reorganization of the organization

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

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

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

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

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

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

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

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

Ivan Shklovets,

Deputy Head of the Federal Service for Labor and Employment

5. Answer: How to draw up a staffing table when reorganizing an organization

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

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

Ivan Shklovets,

Deputy Head of the Federal Service for Labor and Employment

With respect and wishes for comfortable work, Natalya Nikonova,

HR System expert

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

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

Essence and concept

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

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

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

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

Norms

The accession procedure is regulated by the following legislative acts:

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

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

Advantages and disadvantages

Joining is widely popular due to a number of advantages:

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

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

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

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

Package of necessary documents

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

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

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

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

Application to the tax authorities

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

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

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

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

Making a decision

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

The decision must reflect:

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

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

SOLUTION #5

Sole participant of Aqua LLC

Agreement on merger during reorganization (sample)

As for, there are several options here:

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

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

Order on reorganization

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

Order No. 15

On the reorganization of Aqua LLC

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

I ORDER:

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

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

Director Pavlov N.P.

Connection algorithm

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

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

Preparation stage

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

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

Notification stage

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

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

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

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

Completion stage

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

The first includes the following set of documents:

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

The second package of documents contains:

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

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

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

Financial statements

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

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

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

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

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

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Question

When reorganizing a legal entity. person in the form of its merger with another legal entity. person, employees of the acquired legal entity. persons when they become employees of a legal entity. person to whom the connection is made? On the date of state registration of termination of activities of the affiliated legal entity. faces? Or could it be earlier (for example, based on an order from the main society)?

Answer

date state registration termination of the activities of the affiliated legal entity is the last day on which the transfer of employees of the affiliated organization must be completed. The transfer can be done earlier based on orders from both societies. Features of personnel records during reorganization in the form of affiliation are disclosed in the recommendations below.

“The company has made a decision about its own (in the form,). Management instructs the lawyer to carry out not only activities related directly to the reorganization (notify tax office and creditors, register the reorganization, etc.), but also resolve personnel issues that arise during the process of such reorganization.

The first thing a lawyer needs to take into account is that during a reorganization, labor relations with employees do not automatically terminate. In other words, reorganization itself is not considered grounds for termination of employment contracts (). However, during the reorganization process, layoffs are still possible.

In any case, during the reorganization a number of issues arise in the area labor law and personnel document flow. Depending on how responsibilities are distributed between the company’s divisions, as well as the scale of the reorganization, a lawyer can resolve personnel issues*:

either individually, that is, independently carry out all the activities described below;
or when interacting with the HR department. In particular, you can draw up a memo for the HR department with a list of necessary actions and the time frame within which they must be completed (this recommendation can serve as such a memo).

Personnel changes in any form of reorganization

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

How to draft a staffing table

Immediately after the company makes a decision on reorganization, it makes sense to determine the structure, staffing and staffing levels of the successor organization (i.e., the organization to which the rights and responsibilities of the reorganized entity will be transferred). To do this you need to create a project.

If the reorganization is accompanied by, their positions do not need to be included in the draft staffing table ().

How to develop personnel documents

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

Until the reorganization is completed (i.e. before registration of this fact in the Unified State Register of Legal Entities), it is worth developing the following documents: Internal labor regulations, Regulations on remuneration, Regulations on material incentives, .

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

How to notify employees about an upcoming reorganization

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

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

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

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

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

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

Rationale

In particular, the company can notify employees the very next day after it decides to reorganize. From the moment of notification, a two-month period will begin to run, before which the reorganization cannot be registered (). During this period, the lawyer can prepare additional agreements to employment contracts.

If organizational or technological working conditions remain the same, it is not necessary to notify the employee. However, it is better to do it anyway. The fact is that any employee has the right (). To understand in advance whether an employee will continue to work in the successor organization, he needs to know about the reorganization. It is advisable to do this in the same order as with.

2. Mandatory consent. These rules apply when transferring an employee, that is, if (as a result of the reorganization) changes:

employee and/or
structural unit specified in the employment contract, and (or)
the area in which the employee works, that is, the locality within its administrative-territorial boundaries (“On the application by courts Russian Federation Labor Code of the Russian Federation").

To transfer an employee, you must obtain his written consent to the transfer (). It is advisable to do this in the following way: in the notice of reorganization, a separate column where the employee must write whether he agrees to the transfer or not.

How to fire employees

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

if an employee refuses to continue working due to reorganization ();
if the reorganization is accompanied by a reduction in the number (staff) of the organization’s employees ().

Can a reorganized company, on its own initiative, dismiss employees on the basis of reorganization or liquidation?

No, he can not.

Reorganization itself is not considered grounds for dismissal. On the contrary, the law establishes that during reorganization, employment contracts with company employees are not terminated (). If you dismiss an employee with reference specifically to reorganization (for example, in connection with the merger of one company with another), the dismissal will be considered illegal.

During reorganization, it is impossible to dismiss an employee even with reference to organizations, that is, on the basis of Part 1 of Article 81 of the Labor Code of the Russian Federation. This is explained by the fact that during reorganization the company does not cease its activities, but only transfers its rights and obligations in accordance with the procedure. In other words, reorganization cannot be equated with liquidation.

At the same time, the reorganized company may ().

1. The employee refuses to continue working due to the reorganization. The employer must obtain the employee's refusal to continue working. The employee can formalize such a refusal either in the form of an entry in).

2. Reorganization is accompanied by a reduction in the number or staff of the organization. The following must be notified of the upcoming termination of the employment contract:

territorial body of Rostrud (hereinafter referred to as the employment service body) - no later than two months before the upcoming reduction in the number (staff) of employees and possible termination of employment contracts, and if there is a likelihood of mass layoffs of employees - no later than three months before the start of the relevant measures (" On Employment of the Population in the Russian Federation"; hereinafter referred to as the Law on Employment);

Rationale

The Labor Code of the Russian Federation provides that the criteria for mass dismissal are determined in industry and (or) territorial agreements ().

Many existing agreements use the criteria given in the Regulations on the Organization of Work to Promote Employment in Conditions as criteria for mass layoffs. mass release(hereinafter referred to as the Regulations on Employment Promotion), approved.

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

50 or more people within 30 days;
200 or more people within 60 days;
500 or more people within 90 days;
1 percent of the total number of workers for 30 days in regions with a population of less than 5,000 people.

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