Reorganization by joining personnel issues. Reorganization: how to reflect in personnel documents

A small firm is difficult to maintain a stable financial situation, especially in difficult economic conditions. For this reason, such a form is becoming increasingly popular as joining. The entry into the larger economic entity allows to solve many problems inherent in small businesses, and also opens up new opportunities to expand activities.

Features of reorganization in the form of joining a legal entity

Essence and concept

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

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

Joining is considered legally accomplished at the time of making a record of an associated company in. With this date, the successor enters new rights and obligations.

Features of reorganization in the form of accession of a legal entity considered in this video:

Norma

The accession procedure is governed by the following legislative acts:

law No. 129FZ "On State registration of Jurlitz and IP "from 08.08.2001;
law No. 208FZ "On JSC" dated December 26, 1995;
law №14FZ "On OOO" from 08/02/1998;
NK RF.
Civil Code.

Accession is associated with the adoption of serious responsibility by the successor, since it will have to respond to the obligations of the reorganized company. Therefore, it is worth assessing all the pros and cons of the procedure before making the final decision.

Pros and cons

Accession is widely popular due to the presence of a number of benefits:

Does not attract the close attention of the tax service, in contrast to the standard one, which is often preceded.
This procedure is less laborious and takes less time than or liquidation. The main reason is the lack of need for, since the successor retains the previous data in the state market, changes are made only in it.
It can even be carried out with the presence of debts, including the budget, because the obligations are fully transferred to the legal successor. It fits the process, since it does not need to collect.
When complying with the established procedure, the procedure is fully legal, which excludes third-party attempts to recognize it invalid.

With all its advantages, this method of reorganization is not deprived of the shortcomings:

The procedure can be suspended due to claims of creditors. To inform them, the reorganized company undertakes to post an advertisement about the upcoming joining in the media.
There is a risk of need for early repayment of debt if lenders put such a requirement for 30 days from the date of publication of the declaration of reorganization.

The management of the company should appreciate the situation with creditors before making a decision on accession to another company. If the risk of issuing early repayment of requirements is too high, it is worth paying attention to other forms of reorganization.

Package of necessary documents

The main point in the implementation of any legal procedure is to design the necessary package of documents. In this case, it should be included in it:

statement in the FTS in the form of 26003 (on exclusion from the Incorption);
the decision to conduct a reorganization (with the sole founder), or (compiled as a reorganized company and the successor);
an accession agreement in which the conditions for conducting the procedure are prescribed;

At the preparatory stage in the FTS, it is necessary to send (within 3 days). Additionally, it is required to publish the announcement twice in "to inform creditors.

Territorial bodies have the right to establish additional requirements, so the final list of documents is better to clarify in their inspection.

Tax authorities

Application form in form 26003 is available for download on the FTS website. The document consists of the following subsections:

information about the affiliates of Jurlice;
information about the legal entrepreneurs;
information on publications in the media;
information about the applicant.

The first two subsections are filled out on the basis of data on companies contained in the register. It indicates the names, details, information about the rooms and dates of making entries in the State Register. Next, you must specify the date of publication of the announcement of reorganization in the press bodies.

In the subsection "Information about the Applying", information about a representative submitting documents in the FTS is recorded. This is indicated here, information about the date and place of birth, the identity of the document, the place of residence. If the representative advocates a legal entity as a representative, its details are affixed.

Registration of solution

The reorganization of the Jurlitz can be started only after the adoption of a unanimous decision by all founders in favor of this event (paragraph 1 of Article 57 of the Civil Code of the Russian Federation). This decision is made at an extraordinary meeting of the founders (each of the parties), where the attachment agreement and other organizational moments are also approved. If the owner is one, it simply should arrange the appropriate document.

The solution necessarily reflects:

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

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

Decision number 5.

The only participant of Aqua LLC

Reorganization connection agreement (sample)

As for, several options are permissible here:

Summation of the authorized capital of all reorganization participants.
The preservation of the previous amount of the share capital of the successor with the repurchase of the share of the associated companies.
Approval of the new amount of share capital and the distribution of its shares at the general meeting of all participants.

Whatever the method is not elected, it should be reflected in the accession contract. Sample contract you can download here.

Order of reorganization

Another important organizational moment is. The order should be reflected that from a certain date, employees of the reorganized company are moving to the staff to the legal succession. With this order, it is necessary to inform all employees under the signature, because some of them may not agree to the transition to a new firm.

Order number 15.

On the reorganization of Akva LLC

In connection with the reorganization of Akva LLC in the form of joining the Soyuz LLC,

Order:

All employees of Akva LLC from 09/13/2017 Read the Soyuz LLC.
Head of personnel service Lavova E.V. Make new information in employment contracts and employment records.
Secretary Voronina N.A. See Lavrov E.V. with the text of the order until 09/14/2017.
Control over the execution of the order reserve.

Reason: Sv-in on termination of activities of September 13, 2017.

Director Pavlov N.P.

Algorithm of accession

The connection procedure includes a number of consecutive steps. Consider them in order.

The reorganization of the company by accession and its step-by-step instructions are considered in this video:

Stage of preparation

At the preparatory stage, a meeting of founders is held, which makes a decision on reorganization and discusses its organizational moments, fixed by the Treaty. Also at this stage there is a notification of employees about the upcoming reorganization. According to Article 75 of the TK RF, they are guaranteed by employment in the company of the successor, but employees themselves can eliminate the desire to quit, so they must be given enough time to find a new work before the end of the reorganization.

A significant condition without which accession is impossible is an inventory of assets and liabilities of a reorganized firm. The obligation of inventory is regulated by paragraph 27 "Regulations on accounting in the Russian Federation, approved by the Order of the Ministry of Finance No. 34n of July 29, 1998. Based on the results obtained, a transmission act for which all property, rights and obligations of the original company will switch to the legal successor.

Stage notice

After the preparation of the main package of documents on the decision should notify the controlling bodies and lenders. In a three-day sentence, after making a decision on reorganization, it is necessary to send a notification to the FTS. For this purpose, the form of 2,1003, which reflects:

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

The same form can be used to notify the tax authorities on the abolition of the intended reorganization. To do this, on the first page of notifications as a foundation, the "Decision on the cancellation of the previously adopted decision" is selected.

At this stage, publications are made in the media. Creditors are also recommended to inform additionally, the displaced letter with the notice.

Stage completion

At the final stage, the final documentation is submitted to the controlling authorities. First of all, it is necessary to provide in the FIU. They are submitted on time - no earlier than 1 month since the beginning of the reorganization, but no later than the day of delivery of documents in the FNS on the termination of activities. A certificate in confirmation of the provision of information in the FIU is not necessary, since the tax authorities independently request all the necessary information.

The first includes such a set of documents:

application form P16003;
decision of the founders;
joining agreement;
transmission Act.

The second package of documents contains:

application form P13001;
protocol of the general meeting of all reorganization participants;
new edition of the charter (2 copies);
joining agreement;
transmission Act.

The final elimination of the reorganized company and the registration of changes in the charter of the successor can only be carried out after the expiration of 3 months from the beginning of the reorganization. This time limit is given to appeal against the decision on accession (Article 60.1 of the Civil Code of the Russian Federation). Amendments to the EGRULA is carried out by registering bodies within 5 days.

Thus, in the absence of problems with documentation, accession can be finished on a time just over 3 months.

Financial statements

Attachment provides for the formation of final financial statements only by a reorganized company. Reporting is drawn up a day before making information on termination of activities in the register. An attached company must close the accounts of profits and losses, and net profit (with its presence) to send the goals provided for by the accession agreement.

The legal successor changes only the number of assets and liabilities, which does not lead to the interruption of the current reporting period. Therefore, he does not need to form concluding reporting.

Before making information on the termination of activities in the State Register, all current operations (accrual of salaries to employees, etc.) are reflected in the balance sheet of an associated company. That is, all expenses incurred already in the process of reorganization, should also get into final accounting reports.

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

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

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Question

With the reorganization of JUR. Persons in the form of his accession to another JUR. Person, employees of the joined JUR. Persons when they become employees of JUR. Persons to which accession is carried out? At the date of state. registration of termination of the activities of the affiliate YUR. Persons? Or may it be before (for example, on the basis of the order of the main society)?

Answer

The date of state registration of the termination of the affiliate legal entity is the last afternoon, when the employees of the employees of an associated organization should be committed. Translation can be done earlier on the basis of orders of both societies. Features of recruitment during reorganization in the form of joining is disclosed in recommendation below.

"The company has decided on its own (in shape). Management entrusts a lawyer to carry out not only events relating to the reorganization directly (notify the tax inspection and creditors, register reorganization, etc.), but also to solve personnel issues arising in the process of such reorganization.

The first thing you need to consider a lawyer is that in reorganization, labor relations with employees will not automatically stop. In other words, the reorganization itself is not considered the basis for termination of employment contracts (). At the same time, in the process of reorganization, dismissal is still possible.

In any case, during reorganization, a number of issues in the field of labor law and personnel workflow are arisen. Depending on how the responsibilities are distributed between the company's divisions, as well as the scale of reorganization, a lawyer can solve personnel issues *:

either alone, that is, to independently carry out all the measures described below;
either when interacting with the personnel service. In particular, it is possible to make a reminder for the personnel department with the list of necessary actions and the deadlines in which they need to be made (this recommendation can be used as such a reminder).

Personnel changes with any form of reorganization

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

How to make a draft staff schedule

Immediately after the company decides on the reorganization, it makes sense to determine the structure, staffing and staffing of the legal organization (i.e., the organizations to which the rights and obligations of the reorganized person will go). To do this, make a project.

If the reorganization is accompanied, their positions in the draft standard schedule do not need to include ().

How to develop personnel documents

It is important to create the necessary personnel documents as soon as possible, which will take effect after the completion of the reorganization (this must be done during reorganization in any of the forms, except). Otherwise, such documents will be needed. Since the time for the development and analysis of the provisions of these documents will be extremely few, the risk of errors and the lack of resolving relations with employees will increase. Subsequently, this may lead to misunderstanding and labor disputes.

Until the reorganization is completed (i.e., before registering this fact in the incorporation), it is worth developing the following documents: the rules of the internal labor regulation, the position of remuneration, the provision on material incentives,.

It also makes sense to prepare in advance, the conditions of which will be changed in the reorganization process. However, it will be necessary to sign such agreements to the employer after the completion of the reorganization.

How to notify employees about the upcoming reorganization

First, all employees must be notified in advance. This is necessary only when organizational or technological conditions are changed (labor and recreation, technique, technique and technology, etc.), however, and in other cases the notification will be useful.

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

1. Notification. To notify the employee is necessary when as a result of the reorganization, the condition of the employment contract concluded with him will be changed for reasons related to the change of organizational or technological working conditions (). It is necessary to do this no later than two months before the planned date of completion of the reorganization (the date of registration of this fact in the EGRUL). The notification is in arbitrary.

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

If an employee arrange upcoming changes, you can advise him:

to sign an additional agreement before the reorganization will be completed;
leave a signed instance of the agreement in the personnel department.

In this case, subsequently, the legal entrepreneur (employer) will be able to operatively. To do this, the employer will only be needed to sign additional agreements, pre-signed and left by employees, as well as make relevant entries in employment records.

At the same time, the law does not oblige the employer to issue a notice of reorganization at the same time as an additional agreement on the employment contract. In other words, you can notify employees even before additional agreements are drawn up. Such tactics should be chosen when the reorganization must be carried out as a short time.

Justification

In particular, the company may notify employees the day the next day after deciding on reorganization. From the moment of notification, the two-month period will begin to flow, which is previously necessary to register the reorganization (). During this period, the lawyer can prepare additional agreements towards labor contracts.

If organizational or technological conditions of work remains the same, notify the employee is optional. However, it is better to do it. The fact is that any employee has the right (). To understand in advance whether the employee will continue to work in the legal entrepreneur, it needs to be reorganized. It is advisable in the same order as when.

2. Mandatory consent. These rules are applied when transferring an employee, that is, if as a result of the reorganization will change ():

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

To translate an employee, you need to get his written consent for the translation (). This is advisable as follows: In the notice of reorganization, a separate Count, where the employee must write, I agree to the translation or not.

How to dismiss employees

In the process of reorganization, the employee can be fired in two cases:

if an employee refuses to continue working in connection with reorganization ();
if the reorganization is accompanied by a reduction in the number of employees of the organization ().

Can a reorganized company on its initiative to dismiss employees on the basis of reorganization or liquidation

No, he can not.

The reorganization itself is not considered the basis for dismissal. On the contrary, the law establishes that, in reorganization, labor contracts with employees of the company are not terminated (). If you dismiss the employee with reference to reorganization (for example, in connection with the joining of one company to another), the dismissal will be considered illegal.

In reorganization, it is impossible to dismiss the employee and with reference to the organization, 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 in reorganization, the company does not terminate its activities, but only conveys its rights and obligations in order. In other words, the reorganization cannot be equivalent to liquidation.

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

1. The employee refuses to continue working in connection with the reorganization.An employer needs to receive an employee's refusal to continue. Such a refusal to the employee may be issued either as an entry B).

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

the territorial body of Rostruda (hereinafter referred to as the employment service) - no later than two months before the upcoming reduction in the number of employees and the possible termination of employment contracts, and with the probability of mass dismissal of employees - no later than three months before the relevant events (" On employment of the population in the Russian Federation "; further - the law on employment);

Justification

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

Many existing agreements as criteria for mass dismissal use the criteria given in the provisions on the organization of work to promote employment in conditions of mass release (hereinafter referred to as employment assistance) approved.

Such criteria are reduced to the following. The organization reduces:

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

Professional reference system for lawyers in which you will find an answer to any, even the most difficult question.

In connection with what is happening changes in the Russian economy, many market participants becomes more difficult to conduct their activities effectively and without loss. Causes are different: the presence of stronger players, the rise in prices for raw materials, etc.

Therefore, many of them make a decision to combine their efforts to create a larger enterprise that can survive in the established conditions and remain afloat. In addition, reorganization is carried out in order to optimize taxation, management.

Existing ways to reorganize enterprises

Existing civil law provides for 5th forms For reorganization of enterprises:

separation;
selection;
transformation;
merger;
join.

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

If a merger It is a procedure, within which the organizations in it participate will end their existence, and all their rights and obligations are transferred to the new one (created under this process) to a legal entity, accession Somewhat phenomenon. This is a form of reorganization, in which of several persons participating in the procedure, only one (attaching) remains, and the rest (attaching) cease to be.

I choose this or that form of reorganization, its initiators proceed from the circumstances of a particular situation, the presence of the need to preserve any of the participating companies, the complexity of the documentation, and, of course, the goals pursued by conducting these procedures.

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

It is no secret that merging and accession is carried out in order to "eliminate" them. In this case, the accession process is most appropriate, which contributes to the absence of the need to create a new organization.

If you calculate the time spent on the implementation of reorganization actions in the form in question, then it is possible to establish that these procedures need to be left at least 3 months.

Various methods of reorganization of joint-stock companies are considered in the next video of the plot:

Mechanism of accession within the framework of reorganization

This procedure is implemented by several steps.

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Adoption by each participant's decision on reorganization

Conducting this stage depends on the OPF (organizational and legal form) of the enterprise. So, in LLC, the decision on the specified question is within the competence of the general meeting of participants (OSU).

Thus, it is accompanied by the preparation, convening and conducting the OSU (usually extraordinary). The indicated decision should not only define the main conditions for reorganization, but the terms of the contract of accession were approved, and in the event that we are talking about an associated LLC - transmission Act.

Notification of the Registering Authority (IFTS) on the beginning of the procedure

According to the requirements of the law, a notification in the form of P12003 is required to submit to the authorized bodies and the relevant decision on reorganization. At the same time, the law has been established for committing this action - no more than 3 working days from the date of decision making the latest from the participants of the accession. It was the authorized representative of the latter, as a rule, is the applicant when submitting notifications.

Notification of creditors about the start of relevant procedures

In accordance with Art. 60 of the Civil Code of the Russian Federation after the decision was made on the reorganization, it is necessary to implement measures on notification stakeholders, namely lenders, state bodies, etc.

For this (after registering the tax authorities notification of the beginning of the process), the corresponding announcement is printed in the Special Media (Bulletin of State Registration). This is done twice (periodically - once a month). It should be borne in mind that the notification is published from all participants, those who have decided the last or to whom such a duty was assigned by others.

Conclusion of an agreement of the accession, inventory and transfer of property

In cases stipulated by law, the conclusion of an accession agreement is required, which regulates all the conditions for reorganization, including its order and consequences. A special commission is being formed, which holds it and prepares the relevant documents.

Calculation of calculations with the tax authorities of the reorganization participants and other necessary actions are carried out. These events may precede the notification of the IFTS and interested persons on the reorganization of companies. Also preparing transmission ActAccording to which the alienation of the assets and liabilities of the joining affiliates is carried out.

It is also necessary to pay attention to that for example, in relation to LLC, the rate is established, according to which required holding a joint wasp Societies of participants in accession, where the decision to make a decision on the introduction of changes in the acceding society provided for by the accession agreement on the election of new compositions of the Company's bodies. This stage does not stand out as an independent, however, its existence should be considered.

State Registration of Changes in the Information Egypt about the reorganization

As part of this stage, it is necessary to take into account that the final registration of accession is allowed not earlier than the moment when the deadline for filing complaints about decisions on the reorganization will expire, which is 3 months from the date of entering into the beginning of the procedure. In addition, it is necessary to pass at least 30 days from the date of the last publication.

For registration present:

statements (form No. 2,16003 and form p13001);
agreement on accession;
transmission act;
decision on increasing, amending the charter of the attachment;
changes to the charter;
document on the payment of state duty;
application (if you need to make changes regarding the governing bodies, etc.);
other documents that may be required depending on the type of legal entity or the characteristics of its activities (for example, confirmation of changes to the release of emission securities, if any).

Deadline for state registration It is no more than 5 working days. Traditionally, it is believed that at this stage the reorganization procedure is completed.

Solving staff of enterprises

Important when implementing joining are questions about Personnel joining organizations. In the event of the possibility, you can transfer employees by dismissal and in an affiliate enterprise or guided by Art. 75 TK RF. As part of the last method, it is necessary to take into account that employees have the right to refuse to work in an associate organization, as a result of which may be dismissed. In general, as a general rule, reorganization is not a base for termination.

If there is no possibility to take the entire staff of the joining organizations, it is necessary to conduct a preliminary one, otherwise, it will turn to the joining, and the latter will have to take measures to reduce the number of employees.

However, there are exceptions to the above rules, so the Code of the Russian Federation provides that when the owner of the enterprise property is changed (which actually occurs during the accession) within three months from the date of occurrence of the new owner, it is possible to terminate labor contracts with leaders (participants of accession), their deputies and the main accountants, which is logical.

Some features of the procedure

To the reorganization of some categories of legal entities are presented additional requirements. Thus, the antimonopoly legislation establishes cases when reorganization should be carried out with the prior consent of the relevant antimonopoly authority (FAS), for example, in case amount of assets All participating organizations will be more than 7 billion rubles.

If the specifics of the activities of the attachment companies require availability of special permission (license), the attachment company has the right to implement it only after reissuing licenses. This applies to insurance organizations, alcohol trade, communications enterprises, etc.
As a rule, legislation establishes specific deadlines for re-issuing documentation after the end of the reorganization procedures. The attachment organization can obtain a license if the conditions that are mandatory persist. The corresponding actions should be taken in the case, if this license already has, but, for example, to another territory (if it comes to the organization of communication).

In a situation where as part of the transmitted assets There are results of intellectual activity, the rights to which are registered in the prescribed manner, are also required to renew the new copyright holder.

Features of the procedure for the reorganization of enterprises are considered in this video.

Possible violations of the reorganization process

Important are also issues related to cases when reorganization was made in violation of the law.

For example, decision on reorganization It was not done by the authority or the rights of any participant / shareholder were violated. In these situations, there is a risk of recognizing the registration of the termination of the activities of the joined organizations invalid.

It should also be borne in mind that after the adoption of the above decision by the court, the joining organization carries all risks Invalidity of the information contained in the incorporation, including to reimburse damages caused to other persons as a result.

The consequence of violations of order obtaining the consent of the FAS for reorganization will be that the company may be eliminated or reorganized by a court decision (in the form of discharge or separation) if there is a reason to believe that such an accession led to or lead to a limitation of competition, including the emergence of the dominant entity. And if consent was not requested, it was obliged to send to the antimonopoly authority of the petitions of the person will be brought to administrative responsibility in the form of a fine.

The company plans to reorganize or has already started this process. In addition to the preparation of the main documents, it is important not to forget about the details. In particular, about what to report on the decision taken to the staff. The fact that the non-compliance of this requirement threatens is whether it is possible to terminate the employment contract with the employee in this article in connection with the reorganization, read in this article.

With any form of reorganization (fusion, accession, separation, selection, transformation), the company's management, as well as the legal and accounting service, it is necessary to comply with the basic stages of reorganization and take into account the set of nuances. Despite the fact that now the order of reorganization has become much easier, the new practice has not yet been developed. Therefore, for a number of questions, many companies try to adhere to about previous work schemes (in terms of documenting documents, acts of verification, etc.). In the process of solving financial and organizational issues, some small details that do not particularly affect the registration of the reorganization and the design of the main documents, it is easy to miss. One such important detail is the notification of the employee about the reorganization.

The obligation to notify employees about the reorganization of the company follows from the provisions of Part 5 and Part 6 of Art. 75 TK RF. They found that reorganization cannot be the basis for termination of employment contracts with employees of the organization or institution. Moreover, there are no restrictions in these provisions, therefore it is notified to notify all employees, and not just those whose working conditions or position will undergo changes as a result of reorganization. At the same time, Part 5 of Art. 75 TK RF is guarantee: it is aimed at ensuring an employee of the possibility of reorganizing the legal entity to continue labor activity (profession, specialty), due to the employment contract, that is, to maintain labor relations, which guarantees the stability of the legal status of the employee in the context of changing the legal status of the employer (Definition of the CFC of the Russian Federation of January 29, 2009 No. 24-O-O).

The procedure for notifying an employee on reorganization by law is not established, so the employer may notify it about this event at any time.

There is no unified form of notification, as well as some special requirements for it. Each company can develop its form. It is advisable to specify the deadline that the employee is given to make a decision. Usually it is one month. Also in the notification, you need to provide a graph to simply add the mark of its receipt by the employee.

The law does not provide for responsibility for the disappointment of employees about reorganization. However, this does not exclude risks for the company: for example, appeals to the employment inspection with a complaint of violation of labor rights.

If the employee did not inform his disagreement or the intention to continue working in a reorganized company, the employment contract continues to operate.

The company is not obliged to enter into additional agreements in the reorganization of the company with those employees who decided to continue work and with which the employment contract is not terminated. However, information about the reorganization is made to the employment record. Instructions for filling in labor books (Appendix No. 1 to the Decree of the Ministry of Labor of Russia of 10.10.2003 No. 69) does not regulate the procedure for making entries in such cases. The employer himself decides how to do it. For example, as follows: Limited Liability Company "Romashka" is reorganized by joining Little Liability Company.

If the employee expressed disagreement with a continuation of work in a reorganized society, an employment contract with it can be terminated on the basis of:

p. 6 h. 1 Art. 77 TK RF in connection with the reluctance to work in a reorganized company;
p. 3 h. 1 Art. 77 TK RF on the initiative of the employee.

The payment of weekend benefits in connection with the reluctance to continue work in a reorganized company is not envisaged, since in both cases the employee decided to terminate the employment contract at his own request. The refusal of the employee from continuing work does not apply to the grounds for termination of the contract on the initiative of the employer (Art. 81 of the Labor Code of the Russian Federation).

According to Article 75 of the Labor Code (TC), a change in the jurisdiction (subordination) of the organization or its reorganization (merger, accession, separation, allocation, transformation) cannot be the basis for termination of employment contracts with employees of the organization. If an employee fails to continue working in these cases, the employment contract is terminated in accordance with paragraph 6 of Article 77 of the TC. The position of this item sounds: the refusal of the employee from the continuation of work in connection with the change of the owner of the property of the organization, with a change in the subordination (subordination) of the organization or its reorganization.

But, as a rule, in reorganization, not everything is so simple - often the rights of workers are very strongly infringed, and they are simply forced to terminate the employment contract.

In addition, the above-mentioned norm: on the one hand, the reorganization cannot become the basis for termination of the employment contract, on the other - it is reorganization and is one of the grounds for termination of the employment contract.

Reorganization of a legal entity

The reorganization of a legal entity (merger, attachment, separation, isolation, transformation) can be implemented in accordance with paragraph 1 of Article 57 of the Civil Code (GC) to solve its founders (participants) or a legal entity authorized by the constituent documents.

The legal entity is considered reorganized, with the exception of cases of reorganization in the form of accession, since the state registration of newly emerged legal entities.

With the reorganization of a legal entity in the form of accession to him another legal entity, the first of them is considered reorganized from the moment of entering into a single state register of legal entities to record the termination of the activities of the affiliate.

In cases established by law, the reorganization of a legal entity in the form of its separation or allocation from its composition of one or more legal entities, as well as in the form of merging, accession or transformation, is carried out by solving authorized state bodies.

With such forms of reorganization, such as merging, accession, separation and transformation, there is a termination of the activities of one legal entity (in division, transformation and accession) or several (merging, as well as the accession of more than one) legal entities with the transfer of rights and obligations arising again ( Accession - previously arising) to a legal entity or arising from several (with division) to legal entities. When reorganized in the form of selection, the legal entity does not occur, but one or more legal entities arises again.

Personnel work in reorganization of a legal entity

The employer must competently build recruitment in the event of a reorganization.

To begin with, he needs to solve the issues of hiring, transfer or reducing employees.

Events to reduce employees are the most "painful" for everyone - and for the employer, and, of course, for the employee itself.

It all begins with the publication of an order to reduce the state or the number of organizations in connection with the reorganization. In accordance with this order, a new staffing schedule is approved, which comes into force, approximately, not earlier than in 2-3 months.

The organization needs to create a commission for carrying out work related to the release of employees and solving personnel issues; The procedure and timing of the specified activities are determined.

The order is advisable to bring to every employee of the organization.

In accordance with Article 180 of the TC on the upcoming dismissal due to the liquidation of the organization, the reduction of the number or staff of employees of the organization, employees are presented by the employer personally and under the painting at least 2 months before dismissal.

Also, the employer with the written consent of the employee has the right to terminate the employment contract with it before the expiration of the specified period, paying it to additional compensation in the amount of the average earnings of the employee, calculated in proportion to the time remaining before the expiration of the dismissal prevention period.

In addition, when deciding on the reduction in the number or staff of employees of the organization and the possible termination of employment contracts with employees, the employer is obliged to inform the election body of the primary trade union organization no later than 2 months before the start of the relevant activities, and in the event that The decision to reduce the number or staff of employees can lead to massive dismissal of employees - no later than 3 months before the start of the relevant activities (Article 82 of the TC).

The dismissal of workers who are members of the trade union is made taking into account the motivated opinion of the electoral body of the primary trade union organization - Articles 373, 374 TC.

Dismissal is allowed if it is impossible to translate an employee from his written consent to another employer available to the employer. At the same time, the employer is obliged to offer the employee all meet the specified vacancy requirements.

It should not be forgotten that the dismissal of the employee at the initiative of the employer (except for the occasion of the elimination of the organization) during its temporary disability and during the stay on vacation is not allowed.

According to Article 179 of the TC, with a reduction in the number or staff of employees, the preemptive right to leaving at work is provided to employees with higher productivity and qualifications.

With equal performance and qualifications, preference is given:

family - with 2 or more dependents;
persons whose family has no other employees with independent earnings;
employees who received labor injury or occupational disease during the work period of this employer; disabled people of the Great Patriotic War and disabled hostilities on the defense of the Fatherland;
employees raising their qualifications in the direction of the employer without separation from work.

The termination of the employment contract on the initiative of the employer with pregnant women is not allowed, with the exception of the liquidation of the organization (Article 261 of the TC).

The staff dismissed to reduce the state except compensation for all unused leave and payouts of other arrears of the Organization is also paid a day off allowance in the amount of one average monthly earnings. The employee retains the average monthly earnings for the period of employment, but not over 2 months from the date of dismissal. For workers dismisted to reduce organizations located in the regions of the Far North and equivalent to local areas, the paid employment period is 6 months.