Reorganization of an institution and its consequences for the employee (Davydova E.V.). What is reorganization of a legal entity

Enterprise reorganization is an alternative process that is used to create new companies or terminate the existence of existing ones. The reorganization process is regulated by the Civil Code of the Russian Federation, as well as other special regulations, which already narrowly reveal the features of the reorganization of an enterprise of one type or another.

Forms of reorganization

Let's take a closer look at this issue. Civil legislation establishes the types and forms in accordance with which the reorganization of an enterprise can occur. These are the five varieties listed below.

The so-called mixed type should also be included in this section. Essentially, this is a reorganization that uses two forms. For example, during the division of a legal entity of one organizational form, two completely different companies may be formed.

All of the listed forms of reorganization of a legal entity are briefly discussed below.

Selection

Basic distinctive feature This type of reorganization of an enterprise is that it does not involve liquidation or cessation of activity. During this procedure, a new legal entity, or even several, is formed. At the same time, the newly formed companies are endowed with the rights and obligations that the original enterprise previously had. The transfer of these rights and obligations occurs in accordance with the transfer deed, which must state what exactly is transferred to the new company. This document should define what remains with the original organization.

In this case, the principle of fair distribution of assets must be observed. It consists in ensuring that the responsibilities transferred to new organizations are secured by appropriate assets (property). This is due to the protection of creditors' rights.

Separation

Upon division, the original organization interrupts its life activity; it is excluded from the unified state register from the moment of formation of new enterprises. As a rule, a company division occurs when it is necessary to divide the business between the founders. Although, of course, there may be other reasons. The division of assets and liabilities between new companies occurs on the basis of the same transfer act.

The decision on reorganization, as in all other cases, is made by the authorized body of the enterprise in accordance with its constituent documents or in accordance with the requirements of the law.

Accession

Reorganization by merger is mainly used when small companies wish to merge with larger ones. This type of reorganization can also be called a takeover. Naturally, upon joining, only one organization remains. The merged companies cease to operate, and their participants receive a share in the remaining organization.

Merger

Forms of reorganization of a legal entity include such a variety as merger. This type is somewhat similar to annexation, but the only difference is that a completely new face is formed as a result of such a procedure. In the same way, a transfer deed is used here, and the constituent documents state what shares the participants of the merged organizations receive.

Typically, such shares are proportional to the assets that the original companies had. Accordingly, the more such assets in total number, the greater the participant's share.

Conversion

This form of reorganization is very interesting from the point of view that, in fact, new organizations do not appear and the activities of existing ones do not cease. In essence, reorganization occurs by changing the organizational form. This procedure is necessary when, due to some objective reasons the form of the company should be changed (for example, reorganization of a closed joint stock company into an LLC).

However, in this case, it should be remembered that organizations cannot transform into any other statutory forms that they please. Special regulations governing the activities of a certain type of company establish what they can transform into. For example, the reorganization of an LLC may take the form of transformation into a production cooperative, business society or another type of partnership.

additional information

Reorganization of an enterprise is not only the above points, but also additional preparatory work, and notification to the registering authority, and notification to creditors of the planned action.

This process occurs, or rather begins with the adoption of an appropriate decision by the authorized body. As a rule, such a body, if this is a reorganization of an LLC, is considered to be the general meeting of participants. After such a decision is made, an inventory commission is convened, whose task is to count all the property of the reorganized person or persons. Based on the data of this commission, a transfer act is drawn up.

Notification of the registration authority about the decision taken on reorganization. This notice must be sent no later than three days. Next you need to printed publications publish the same information for creditors, indicating the deadline for filing claims.

Reorganizing an enterprise is a very labor-intensive and lengthy process, during which numerous problems may arise. There are also many nuances that need to be taken into account when carrying out a reorganization of a certain type. That is why, before taking these actions, it is necessary to carefully consider all future steps.

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

Reorganization and its forms

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

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

Merger, when a new legal entity is formed from several legal entities that cease to operate;

Merger, when one legal entity is joined by another legal entity that ceases its activities, and in the end one remains;

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

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

Transformation, when a legal entity of one type is transformed into a legal entity of another type, while the first one ceases its activities (change in legal form).

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

The decision on the reorganization of a federal institution in the form of division, spin-off, merger (if the legal entity resulting from the merger is a federal government institution) or annexation (in the case of the merger of a federal budgetary or autonomous institution with a government institution) is made by the Government of the Russian Federation.

The decision on reorganization in the form of merger or accession, except for the specified cases, is made by federal body executive power, exercising the functions and powers to develop state policy and legal regulation in the established field of activity.

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

A legal entity is considered reorganized, with the exception of cases of reorganization in the form of merger, from the moment state registration newly created legal entities. When a legal entity is reorganized in the form of the merger of another legal entity with it, the first of them is considered reorganized from the moment an entry on the termination of the activities of the merged legal entity is made in the Unified State Register of Legal Entities.

Labor Relations

Article 75 of the Labor Code of the Russian Federation talks about labor relations during reorganization. Moreover, in addition to the reorganization, a change in the owner of the organization’s property and a change in its jurisdiction are separately indicated.

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

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

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

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

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

When transferring federal state enterprise into the property of a subject of the Russian Federation and vice versa.

Change of property owner government agency- This is, in essence, reorganization in the form of transformation.

As for changing the jurisdiction (subordination) of an organization, this means transferring the organization from the jurisdiction (subordination) of one body to the jurisdiction (subordination) of another body.

So, Art. 75 of the Labor Code of the Russian Federation establishes that when there is a change in the owner of the organization’s property, a change in the jurisdiction (subordination) of the organization or its reorganization (merger, annexation, division, spin-off, transformation) or a change in the type of state or municipal institution, employment contracts with employees are not terminated. An exception is the possibility of terminating employment contracts with the head of the organization, his deputies and the chief accountant when the owner of the organization’s property changes. The new owner may terminate employment contracts with these persons no later than three months from the date on which he acquired ownership rights.

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

Upon termination of employment contracts with these persons, the new owner is obliged to pay them compensation in the amount of not less than three average monthly earnings of these workers (Article 181 of the Labor Code of the Russian Federation). Grounds for termination employment contract in such cases there will be clause 4, part 1, art. 81 of the Labor Code of the Russian Federation - change of owner of the organization’s property.

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

Paperwork

As already mentioned, labor relations with employees in the event of a change in the owner of the organization’s property (with the exception of persons established by Part 1 of Article 75 of the Labor Code of the Russian Federation), reorganization, or change of jurisdiction are preserved. That is, employment contracts remain the same. But additional agreements must be concluded with them.

However, first, the employer should notify employees of the upcoming reorganization, change of ownership of property or change of jurisdiction, as well as the right of employees to terminate their employment relationship in connection with this.

Such an obligation is not established by law, unless simultaneously with the reorganization the terms of the employment contract are changed or there is a reduction in the number of employees or staff. However, in order for employees to exercise the right to terminate their employment relationship established in Art. 75 of the Labor Code of the Russian Federation, this still needs to be done. The question here is: when should such notice be given? Since this issue is not regulated by the Labor Code, other provisions should be followed. Thus, in the case when the reorganization is accompanied by a change in the employee’s working conditions (place of work, structural unit, conditions of payment, position, etc.), notification is sent two months before the upcoming changes by virtue of Art. 74 Labor Code of the Russian Federation.

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

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

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

However, the court reinstated her in her previous position with payment to her wages for the period of forced absence and compensation for moral damage, and the dismissal under such circumstances was declared illegal (Cassation ruling of the Khabarovsk Regional Court dated April 27, 2011 in case No. 33-2747/2011).

If no changes in working conditions are planned, employees must be notified in the shortest possible time from the moment of state registration of changes during reorganization or entry into force of a regulatory legal act when jurisdiction changes. In this case, it is not necessary to notify each employee against signature, but you can inform the employees this information orally or by posting on a bulletin board, etc. In this case, it should be noted that employees have the right to terminate their employment relationship by submitting an appropriate application.

Employees who submit such a statement will have their employment contract terminated. IN work book the following entry is made: “The employment contract is terminated due to the employee’s refusal to continue working in connection with the reorganization of the organization, paragraph 6 of part one of Article 77 of the Labor Code of the Russian Federation.”

And on what basis should an employee be dismissed if he does not agree to continue working due to a change in the terms of the employment contract: according to clause 6 or 7 of Part 1 of Art. 77 of the Labor Code of the Russian Federation (an employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties)?

Since there are no clarifications on this issue, we believe that it would be simpler and more expedient to dismiss under clause 6, part 1, art. 77 Labor Code of the Russian Federation. In any case, the employee can always resign for at will.

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

Additional agreements to employment contracts must be concluded with employees who continue to work. The agreements indicate all changes, including changes in the terms of the employment contract, that occurred as a result of the reorganization. In addition, it is necessary to make an entry in the work book.

Since the Instructions for filling out work books, approved by Resolution of the Ministry of Labor of the Russian Federation dated October 10, 2003 N 69, do not regulate the procedure for making such entries in the work book, it is assumed that the entry in this case should be similar to the entry on changing the name of the organization (clause 3.2 of the said instructions) , for example: "The municipal unitary enterprise "Fakel" was reorganized in the form of transformation into a closed Joint-Stock Company"Svetoch" from 07/15/2014".

Reduction of staff during reorganization

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

In Letter of Rostrud dated 02/05/2007 N 276-6-0 on this matter, it is noted that the reorganization may be accompanied by an actual reduction in the number of employees or staff of the organization. In this case, as a rule, the staffing table changes, new structural units and positions may be introduced into it, and individual positions may be excluded from it.

In this case, as officials point out, we can talk not about the priority right to hire, but about the priority right to remain at work when the number of employees or staff is reduced. Preferential right to remain at work is given to employees with higher labor productivity and qualifications.

With equal labor productivity and qualifications, preference in remaining at work is given to families with two or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is for them a permanent and main source of livelihood), persons in whose family there are no other workers with independent earnings, workers who received a work injury or occupational disease while working for this employer, disabled people of Great Britain Patriotic War and disabled combatants in defense of the Fatherland, workers who improve their skills in the direction of the employer without interruption from work.

Note! If in new staffing table The employee’s position has been retained; there are no grounds for dismissal due to staff reduction.

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

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

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

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

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

Please note that if an employee is subject to dismissal due to a reduction in staff or number of employees, then replacing this basis for dismissal with dismissal under clause 6, part 1, art. 77 of the Labor Code of the Russian Federation or at one’s own request may be declared illegal by the court, since it deprives the employee of the right to receive guarantees established by the Labor Code in the event of dismissal due to staff reduction.

Separately about vacation

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

Let us remind you that the right to use vacation for the first year of work arises for the employee after six months of his continuous operation at this employer. By agreement of the parties, paid leave may be provided to the employee before the expiration of six months (Article 122 of the Labor Code of the Russian Federation).

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

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

As mentioned above, during the reorganization of the institution (including when the owner of the property changes), the employment relationship continues; accordingly, the employee retains the right to leave and the length of service for granting leave is not interrupted. And vacation schedules drawn up before the reorganization remain valid. Therefore, employees must go on vacation in accordance with the current vacation schedule.

Question. For the period of work from 01/05/2014 to 01/04/2015, according to the vacation schedule, the employee must be granted leave of 40 calendar days from 09/30/2014 to 11/10/2014. As of November 1, 2015, the institution is planning to reorganize. Before the reorganization, can an employer provide vacation not in the amount of 40 days, but in proportion to the time worked by the employee before the reorganization?

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

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

Thus, if the employee agrees to divide the vacation into parts and transfer the second part of the vacation to another time (in this case, after reorganization) or to the next working year, this can be done. In this case, the employee must be asked to submit an application requesting the division and transfer of vacation, and changes must also be made to the vacation schedule.

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

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

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

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

Please also note that when paying compensation for unused vacation upon dismissal of an employee in accordance with the Rules on regular and additional leaves, approved by the People's Commissariat of Labor of the USSR on April 30, 1930 N 169, in the event of liquidation of an enterprise or institution or its individual parts, reduction of staff or work, as well as in the event of reorganization or temporary suspension of work, an employee who has worked for 5 years or more 5 to 11 months, receives full compensation, that is, for all annual and additional paid leave due to him.

* * *

To summarize, let us draw your attention to the main points related to the reorganization of the institution.

1. In the event of reorganization of the institution, labor relations with employees continue. The exception is the possibility of terminating labor relations with the manager, his deputies and the chief accountant when the owner of the organization’s property changes.

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

3. Employees must be informed about any reorganization in order to exercise their right to dismissal under clause 6, part 1, art. 77 Labor Code of the Russian Federation.

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

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

6. If the employee wishes to terminate the employment relationship due to reorganization, change of owner or change of jurisdiction, he is dismissed according to clause 6, part 1, art. 77 of the Labor Code of the Russian Federation after state registration of changes or entry into force of a regulatory legal act on changing jurisdiction. No benefits are paid to the employee upon such dismissal.

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

Reorganization of state and municipal institutions is a fairly common phenomenon. In most cases, it is associated with a change in the type of institution and the merger of several institutions into one. And often such a merger is accompanied by a reduction in staff or number of employees, which in practice raises many questions. In the article we will tell you what an employer should pay attention to in case of reorganization of an institution and what mistakes should be avoided in relation to employees.

What is reorganization?

The basic provisions on reorganization are established by the Civil Code of the Russian Federation, but the formulation of what reorganization is is not given. The main feature of reorganization is a change in the legal status of a legal entity, entailing succession, which results in the simultaneous creation of one or more new legal entities and the termination of one or more previous legal entities.
By virtue of paragraph 1 of Art. 57 of the Civil Code of the Russian Federation, reorganization of a legal entity in the form of merger, accession, division, separation and transformation can be carried out by decision of its founders (participants) or a body of the legal entity authorized to do so by the constituent documents.
As for specifically the reorganization of non-profit organizations (which also include state and municipal institutions), Art. 16 of the Federal Law of January 12, 1996 N 7-FZ “On Non-Profit Organizations” (hereinafter referred to as Law N 7-FZ) establishes that making decisions on reorganization and carrying out reorganization of budgetary or government institutions, unless otherwise prescribed by an act of the Government of the Russian Federation, are carried out in in the manner established:
- by the Government of the Russian Federation - in relation to federal budgetary or government institutions;
- the highest executive body of state power of a constituent entity of the Russian Federation - in relation to budgetary or government institutions of a constituent entity of the Russian Federation;
- local administration municipality- in relation to municipal budgetary or government institutions.
The decision to convert an autonomous non-profit organization accepted her supreme body management in accordance with Law No. 7-FZ in the manner prescribed by the charter of an autonomous non-profit organization (Part 5, Article 17 of Law No. 7-FZ).
A non-profit organization is considered reorganized, with the exception of cases of reorganization in the form of affiliation, from the moment of state registration of the newly emerged organization (organizations).
When a non-profit organization is reorganized in the form of another organization joining it, the first of them is considered reorganized from the moment an entry on the termination of the activities of the affiliated organization is made in the Unified State Register of Legal Entities.
State registration of an organization (organizations) newly emerged as a result of reorganization and entry into the Unified State Register of Legal Entities of an entry on the termination of the activities of the reorganized organization (organizations) is carried out in the manner established by federal laws.
As for labor relations with employees in the event of reorganization, the only article is devoted to them. 75 of the Labor Code of the Russian Federation, which pays attention to two main points:
1) in the event of reorganization, employment contracts with employees are not terminated;
2) the employee has the right to terminate the employment contract due to reorganization. The basis for termination in this case will be clause 6, part 1, art. 77 Labor Code of the Russian Federation.
Before discussing the nuances of labor relations with employees during reorganization, we note that the provisions of Art. 75 of the Labor Code of the Russian Federation applies not only to cases of reorganization, but also to others, which we will consider below.

Other types of changes in the legal status of an institution

So, by virtue of Art. 75 of the Labor Code of the Russian Federation, employment contracts with employees are also not terminated if:
1) change of owner of the organization’s property. According to paragraph 32 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation,” a change of owner is understood as a transition (transfer) of ownership of an organization’s property from one person to another person or persons, in particular, at:
- privatization of state or municipal property, that is, during the alienation of property owned by the Russian Federation, constituent entities of the Russian Federation, municipalities, into the ownership of individuals and (or) legal entities (Article 1 of the Federal Law of December 21, 2001 N 178-FZ “On Privatization” state and municipal property", Article 217 of the Civil Code of the Russian Federation);
- conversion of property owned by the organization into state ownership (Article 235 of the Civil Code of the Russian Federation);
- transfer of state enterprises to municipal ownership and vice versa;
- transfer of a federal state enterprise to the ownership of a constituent entity of the Russian Federation and vice versa.
A change in the ownership of the property of a state institution is actually a reorganization in the form of transformation;
2) changing the jurisdiction (subordination) of the organization. It consists in transferring an organization from the jurisdiction (subordination) of one body to the jurisdiction (subordination) of another;
3) changing the type of state or municipal institution.

Note! The types of state and municipal institutions are autonomous, budgetary and state-owned (Article 9.1 of Law No. 7-FZ).

By virtue of Art. 17.1 of Law No. 7-FZ, a change in the type of state or municipal institution is not its reorganization. With such a change in his constituent documents appropriate changes are made.

Reorganization is not liquidation

Sometimes employers confuse the reorganization of an organization with its liquidation and fire employees under clause 1, part 1, art. 81 of the Labor Code of the Russian Federation (liquidation of an organization), which is a violation of the law. Let's figure it out. As already mentioned, reorganization can be carried out in the forms of merger, accession, division, separation and transformation.
When merging from several legal entities that cease their activities, a new legal entity is formed.
In the case of merger, one legal entity is joined by another that ceases its activities, and as a result one remains.
When dividing, one legal entity is divided into several.
When separating from one legal entity, another is separated, while both continue their activities.
And finally, transformation: a legal entity of one type is transformed into a legal entity of another type, while the first one ceases its activities (change of legal form).
It turns out that one of the legal entities, during reorganization in almost any form, ceases its activities. But the difference between liquidation and reorganization is that during the latter legal succession is carried out, that is, the rights of one organization are transferred to another, its legal successor. During liquidation, the legal entity is terminated without the transfer of rights and obligations by way of succession to other persons (Article 61 of the Civil Code of the Russian Federation). The liquidation procedure is established by Art. 63 Civil Code of the Russian Federation. The liquidation of a legal entity is considered completed, and the legal entity is considered to have ceased to exist after making an entry to this effect in the Unified State Register of Legal Entities.
Thus, if an employer unknowingly or, conversely, deliberately replaces reorganization with liquidation and dismisses employees of an organization that is ceasing its activities, they will be reinstated by the court.
Thus, G.I. filed a claim in court to invalidate the order of dismissal, reinstatement and recovery of average earnings.
G.I. was appointed head of the education department of the Administration of the Yustinsky district municipality of the Republic of Kalmykia (hereinafter referred to as AYURMO RK). In connection with the reorganization of the department through transformation into the municipal institution "Department of Education, Culture, Youth Policy and Sports of the Administration of the Yustinsky District Municipality of the Republic of Kalmykia" (hereinafter referred to as the Department of Education), she was transferred as the head of the education department of the Department of Education.
By the resolution of the head of the AYURMO RK, the Education Department was liquidated. G.I. warned about the upcoming dismissal in connection with the liquidation of the Education Department and was subsequently dismissed under clause 1, part 1, art. 81 Labor Code of the Russian Federation.
The court found that the Education Department was not liquidated, but was reorganized by dividing into the Education Department of the AYURMO RK and the Sector of Culture, Youth Policy and Sports under the AYURMO RK, to which the rights and responsibilities of the reorganized institution were transferred. The main goals, objectives and functions of the education department have not changed.
The fact that the property was transferred by the Education Department to the education department was not disputed by the defendants.
With the actual reorganization of the Education Department with G.I. the employment relationship was not continued, she was illegally dismissed, despite the fact that she did not refuse to continue working in the education department, and there was no staff reduction.
The court decided to reinstate G.I. head of the department in the Institution "Education Department of the Administration of the Yustinsky District Municipality of the Republic of Kalmykia" and recovery in her favor of average earnings for the period of forced absence and compensation for moral damage (Appeal ruling of the Supreme Court of the Republic of Kalmykia dated 09/06/2012 in case No. 33-604/2012).

Nuances of relations with employees during reorganization

So, by virtue of Art. 75 of the Labor Code of the Russian Federation, employment contracts with employees are not terminated not only in cases of reorganization, but also when the jurisdiction and type of state or municipal institution changes. As for changing the owner of the organization’s property, the situation here is somewhat different, in particular, the new owner, no later than three months from the date of his ownership rights, has the right to terminate the employment contract with the head of the organization, his deputies and the chief accountant.
When changing the owner of an organization's property, it should be borne in mind that, within the meaning of Art. 75 of the Labor Code of the Russian Federation in its systematic interpretation from Art. Art. 132 and 559 of the Civil Code of the Russian Federation, a change in the owner of an organization’s property is understood as a change in the owner of the organization’s property as a whole, that is, the entire property complex, including real and movable property, equipment, inventory, raw materials, products, claims, debts and exclusive rights. This conclusion was made in the Appeal ruling of the Kaliningrad Regional Court dated May 15, 2013 in case No. 33-1970/2013. This Determination left unchanged the decision of the court of first instance, which, among other things, invalidated the entry in Ts.S.’s work book. about dismissal due to a change in the owner of the organization’s property.
Ts.S. worked in kindergarten No. 21, which was a structural unit (branch) of the Federal State Institution "1409 Naval Clinical Hospital" (hereinafter - FGCU). The kindergarten was located in a separate building and was one of the real estate assets of the Federal State Institution. Later the building kindergarten was transferred from federal to municipal ownership. Ownership was registered to the municipal municipality "Baltiysky Municipal District". The activities of the kindergarten were stopped, and the kindergarten workers were deprived of the right to continue working.
Guided by Art. 75 of the Labor Code of the Russian Federation, the employer made an entry in the work book of Ts.S. about a change in ownership of the property and suggested contacting the new owner regarding the continuation of work.
But in this case, there was a change in the ownership of part of the property of the Federal State Institution in the form of individual real estate objects, including the kindergarten building, and not the entire property complex of the organization, that is legal grounds for the employer to apply the above provisions of Art. 75 was not available.
The transfer by one organization of part of its property to another organization does not constitute a change in the owner of the property within the meaning of Art. 75 and the basis for continuing the employee’s employment relationship with the new owner of the property. The entry in the work book was declared invalid by the court, and it was concluded that the plaintiff, through the fault of the employer, was unlawfully deprived of the opportunity to work, and therefore the employer is obliged to compensate her for the earnings not received during this period.
According to Part 3 of Art. 75, when the owner of an organization’s property changes, a reduction in the number or staff of employees is allowed only after state registration of the transfer of ownership.
However, a reduction in numbers or staff may be accompanied not only by a change in the owner of the organization’s property, but also by a reorganization of the institution. This, in particular, is indicated in the Letter of Rostrud dated 02/05/2007 N 276-6-0 (hereinafter referred to as Letter of Rostrud N 276-6-0). As stated in this Letter, in this case, as a rule, the staffing table changes, new structural units and positions may be introduced into it, and individual positions may be excluded from it.

Note. If the employee’s position is retained in the new staffing table, there are no grounds for dismissal due to staff reduction (Rostrud Letter N 276-6-0).

And in this case, we can talk not about the priority right to hire employees, but about the priority right to remain at work when the number or staff of employees is reduced. Preferential right to remain at work is given to employees with higher labor productivity and qualifications.
During the reorganization, the issue of providing leave deserves special attention. As long as the employment relationship continues, the employee retains the right to leave. That is, the employer must provide the employee with vacation according to the schedule drawn up at the end of the calendar year, even if the vacation coincides with the reorganization period or a subsequent one.

Employer's actions during reorganization

No obligations towards employees of the institution during reorganization (notification, transfer, etc.) Art. 75 of the Labor Code of the Russian Federation is not established, so you need to be guided by other norms of the Labor Code.
First of all, you should understand in what cases the employer is obliged to notify employees about the reorganization, and in what cases such an obligation is not established by law. There are two cases when the employer is obliged to do this:
- it is planned to reduce the number or staff of employees;
- the terms of the employee’s employment contract change.
In both cases, workers must be notified two months before the upcoming changes. At the same time, those being laid off should be offered existing vacant positions in the institution (Part 3 of Article 81 of the Labor Code of the Russian Federation). Notifications are issued in in writing and are sent to each employee against signature.
But is it necessary to notify employees in cases where the reorganization does not in any way affect labor relations with employees? If necessary, when?
First, let's look at judicial practice.
Municipal institution"The editorial office of the newspaper "Amurskaya Zarya" (hereinafter - MU) was reorganized by transforming into the Municipal Unitary Enterprise "Editorial Office of the newspaper "Amurskaya Zarya" (hereinafter - MUP). The employee filed a claim for compensation for moral damages because she was not notified of the reorganization that had taken place and believed that she was in an employment relationship with the municipal enterprise, and not with the municipal unitary enterprise. Such actions of the employer grossly violated her rights and caused moral harm.
However, the court concluded that the fact of violation labor rights the employee was not identified as a result of the reorganization. Job responsibilities and the employee’s position has not changed, wages have not decreased. The decision to reorganize was made at general meeting collective, and no evidence was provided that the employee did not take part in this meeting.
Also, the employer made relevant entries about the reorganization in the work books, which all employees could familiarize themselves with.
The employee's claims were denied. The decision of the court of first instance remained unchanged (Appeal ruling of the Khabarovsk Regional Court dated November 6, 2013 in case No. 33-6800/2013).
Thus, the employer has no obligation to notify employees about the reorganization if the employees’ working conditions do not change.
However, Art. 75 and paragraph 6, part 1, art. 77 of the Labor Code of the Russian Federation, an employee is given the right to refuse to continue working in connection with a change in the owner of the organization’s property, with a change in the jurisdiction (subordination) of the organization or its reorganization, with a change in the type of state or municipal institution. Therefore, it is still necessary to notify employees about changes in the legal status of the institution. As we can see from the above court decision, this does not have to be done in writing; it can also be done orally, for example at a team meeting.
But in order to avoid legal disputes in the future, we recommend that this information be communicated to employees in a visual form by posting it on the institution’s notice board or in each department (office). This must be done immediately after making an entry about the reorganization in the Unified State Register.
The fact of reorganization should be reflected in the workers’ work books. At the same time, the Instructions for filling out work books, approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 N 69 (hereinafter referred to as the Instructions), do not regulate the procedure for making such entries. Therefore, a record is made similar to the record of changing the name of the organization (clause 3.2 of the Instructions). For example: "The municipal institution "Editorial office of the newspaper Amurskaya Zarya" was reorganized in the form of transformation into the "Municipal unitary enterprise "Editorial office of the newspaper Amurskaya Zarya" from 08/14/2014."
If, as a result of the reorganization, the terms of the employment contract have changed, including if the employee, for example, is transferred to another position or to another structural unit, an additional agreement to the employment contract is concluded. An entry about the transfer is also made in the work book after the entry about the reorganization.
If an employee refuses to work due to the reorganization that has taken place, an entry about dismissal is made in the work book under clause 6, part 1, art. 77 Labor Code of the Russian Federation.

Note! Dismissal is formalized under clause 6, part 1, art. 77 of the Labor Code of the Russian Federation after state registration of changes or entry into force of a regulatory legal act on changing jurisdiction.

If during the reorganization process an employee was laid off, the basis for dismissal will be clause 2, part 1, art. 81 Labor Code of the Russian Federation.
On the last day of work with the employee, a full payment is made, including compensation for all unused vacations.
If an employee is dismissed due to a reduction in headcount or staff, he is paid severance pay in the amount of average monthly earnings, and also retains the average monthly salary for the period of employment, but not more than two months from the date of dismissal (including severance pay) (Article 178 of the Labor Code of the Russian Federation) .
Moreover, if the employment contract is terminated before the two-month period, the employee is paid additional compensation in the amount of average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal.
In the event of termination of an employment contract with the head of the organization, his deputies and the chief accountant in connection with a change in the owner of the organization’s property, the new owner is obliged to pay compensation to the indicated employees in an amount not less than three times their average monthly earnings (Article 181 of the Labor Code of the Russian Federation).

To summarize, we note that the reorganization of the institution itself has virtually no effect on the labor relationship with the employee, unless it entails a reduction in the number or staff of employees or a change in the terms of the employment contract. But even in this case, you just need to be guided by the provisions of the Labor Code. Nevertheless, litigation related to reorganization is not decreasing. We hope that if your organization is facing reorganization, this article will help you avoid mistakes.

Reorganization of enterprises is an integral attribute market economy. The reasons for reorganization can be very different - it is the desire to bring the company out of a crisis, to optimize tax payments, or a way to expand the business.

The reorganization process is based on legal succession, i.e. a person who ceases its activities is liquidated, and its rights and obligations are transferred to the legal successor.

There are two ways of reorganization - it can be carried out either voluntarily or compulsorily. Voluntary reorganization is carried out by decision of a meeting of participants in an LLC or a meeting of shareholders in an OJSC. Forced - only in established by law cases by decision of government authorities or in court.

Basic forms of reorganization

There are 5 forms of reorganization.

During a merger, several companies cease to operate, and a new one (A+B=C) is formed in their place, to which all property and liabilities are transferred. The merged companies cease to exist autonomously. If the total value of the assets of the companies that propose a merger exceeds 30 million minimum wages, the consent of the antimonopoly authorities is initially required.

For this type of reorganization, a special class of economic processes is distinguished - M&A (mergers and acquisitions). It means global trend to consolidate assets on the global market. Acquisitions differ from mergers in that their goal is to establish control over the company by acquiring a 30% stake in the authorized capital. At the same time, the economic independence of the acquired company is preserved.

Accession

When one company merges with another, the acquired company ceases to operate (A+B=A). Accession should be distinguished from merger, because in this case, only one of the companies loses its independence.

Separation

When dividing, instead of one, several companies are formed (A=B+C).

Selection

When separated, instead of one organization, one or more new ones are formed (A = A + B), and the reorganized organization does not cease its activities. The separation process has a widespread form of spin-off. Spin refers to the separation of a subsidiary from its parent as a result of the issue of shares.

Conversion

During the transformation, only the organizational and legal form changes. As a result, the old organization ceases its activities, and in its place a new one is created, to which all rights and obligations are transferred (A=B).

Many people have no idea what reorganization of a legal entity is or why it is needed.

But if you are going to transform your company, you will have to study the norms of Russian legislation, which discuss this procedure and its stages.

Reorganization of a legal entity is not an easy procedure, especially for those who are faced with this for the first time. Liquidation entails mandatory termination of activities, but reorganization does not.

Therefore, let’s figure out what the features of its implementation are, when it is possible and why it is needed. Is there a routine that everyone involved can rely on?

Basic information

Like any legal procedure, reorganization is carried out in accordance with certain norms of the legislation of the Russian Federation.

The basics of such a process are the first thing to learn before putting regulations into practice.

Basic Concepts

A legal entity is an enterprise registered in accordance with the law, which owns separate property. Legal entities are liable for their obligations with such property objects.

They have the right to buy and sell property and non-property rights on their own behalf. They can act as defendant and plaintiff in court.

Reorganization of a legal entity is the termination of legal or other provisions of a legal entity, which entails the emergence of a relationship of succession.

The result of this procedure is the creation of one or more new enterprises and the termination of the activities of one or more firms.

That is, these are actions of a legal entity and government agencies that are aimed at transferring the rights and obligations of the company to another legal successor.

Reorganization is carried out by:

• mergers;
• accessions;
• transformations;
• divisions;
• discharge.

Reorganization of a legal entity cannot be carried out by way of merger if one of the enterprises is a joint-stock company and the second is an LLC.

That is, all participants in the procedure must have the same organizational form. Otherwise, the conversion is done first and then the appendage.

Why is this necessary?

Reorganization is carried out voluntarily or compulsorily (subject to a court decision).

Reasons for reorganization:

Legal regulation

The rules for carrying out reorganization are described in the following legislative documents:

Procedure for reorganization of a legal entity (enterprise)

Such documents are submitted to the tax authority, as well as to the registration chamber, where an entry is made in the Unified State Register of Legal Entities.

Reorganization is considered as:

• deal;
• an act of succession, which is characterized by a complex legal composition.

The basis for reorganization is (according to Article 57 of the Civil Code):

Basically, reorganization involves the cessation of conducting entrepreneurial activity. The exception is cases of separation.

When drawing up an order, you can rely on the following example:

Step-by-step instruction

Let's consider the stages of the reorganization:

1. The participants of the closed joint-stock company make decisions at the general meeting (Article 48 of Law No. 208). The decision will be made if ¾ of the founders vote “For”. Notice of the date of the meeting is sent 30 days in advance. The founders of the LLC make a decision at the meeting in accordance with Art. 33 of Law No. 14-FZ. All participants must vote “For”. The founders are notified no later than a month before the meeting, unless otherwise provided by law ().
2. The registration authorities are notified within 3 days from the moment the decision is made. A letter is submitted to the tax authority in connection with the reorganization of the enterprise, a sample of which can be found on the Internet. Such a notice will serve as the basis for making a record that the company is undergoing reorganization (). If the procedure is carried out by two or more enterprises, the notification will be sent by the company that last decided to carry out the reorganization ().
3. Information about the procedure is published in the Bulletin (twice) and on the portal of the federal tax authority. Creditors can submit their claims. If the debtor fails to fulfill his obligations, they will be terminated. The exception is the cases described in paragraph 2 of Art. 60 GK.
4. Creditors are notified within 5 days after the notice is submitted to the registrar. If this condition is not met, the reorganization will be declared invalid.
5. The transfer deed is drawn up and approved. The date of its approval is determined by the participants during the procedure. Conducting an inventory.
6. The final accounting reports are prepared (the day before making an entry in the Unified State Register of Legal Entities about the reorganization).
7. The acquired rights to real estate are registered.

Problems encountered during the procedure

Reorganization is carried out quite often, the reason for which is the financial and economic crisis.

Some enterprises want to optimize their activities, others want to get away from it. But the reorganization must be carried out in accordance with the law.

If a company is created without the consent of the antimonopoly service, even through a merger or accession, it will be liquidated or reorganized through separation/division based on a court decision.

Legislative documents do not indicate how shares of new enterprises are distributed between participants in a divided and spun-off company.

During a forced reorganization, competition is restored only in certain cases when the business is divided between participants.

If there are many shareholders, then it is necessary to determine who will make the decision on the distribution of shareholders among the newly created companies. The rights of participants are limited, and therefore this norm not effective.

There are other unfinished legal norms that create controversial situations relatively:

• recognition of reorganization transactions as invalid;
• recognition of the separation balance sheet as invalid;
• application of the consequences of invalidity of void transactions for the transfer of property objects to authorized capital etc.

How is succession carried out?

The merger of legal entities involves the transfer of rights and obligations to the created enterprise in accordance with the transfer deed ().

Merger involves the transfer of rights and obligations to the new company in accordance with.

When separating, rights and obligations are transferred to each separated company in accordance with the separation balance sheet, and during transformation - to the new enterprise in accordance with.

In all cases, the transfer of rights and obligations to the legal successors is carried out, and not the sale of property objects of the reorganized legal entities. faces.

Dismissal of employees

Relations with employees during the reorganization procedure are discussed in. When carrying out the procedure, it is sometimes necessary to terminate the agreement with employees.

But it is worth remembering that the jurisdiction of the company is changing. But during the reorganization, contracts with the company’s employees are not terminated (paragraph 5 of Article 75 of the Labor Code).

Some experts say that organizations that join or merge with another enterprise can fire personnel, citing (during liquidation).

In other cases, dismissal under this article will not be legal. A new legal entity, 3 months before the emergence of ownership rights, can terminate employment contracts with the management of the company, deputies and chief accountant.

Upon dismissal, such persons will be paid a compensation amount (at least 3 average earnings), as stated in.

Based on the reorganization, the company cannot terminate contracts with employees. But employees retain the right to refuse to work in the reorganized company.

Then the agreement will terminate in accordance with the Russian Federation. All payments will be made on the day of dismissal (). But you shouldn’t count on severance pay.

They are studying whether there may be instructions about which of the workers has preferential rights to remain in their jobs with equal success in work and qualifications.

If employees leave due to staff reduction, they must receive severance pay, the amount of which is the average monthly salary.

They are also entitled to payments while looking for another job (maximum 2 salaries including severance pay).

In accordance with, the right to remain at work has:

• family citizens with at least two dependents;
• persons who are the only family members who have income;
• persons with a work injury or occupational disease, disabled people of the Second World War and combat operations;
• employees who improve their skills if they are directed by the company without interrupting their work obligations.

You cannot terminate a contract with a pregnant woman.

Termination of work of legal entities through reorganization

The company may cease to operate through reorganization or liquidation.

With all types of reorganization (except for spin-off), the activities of at least one organization will be terminated, but its rights and obligations will not be terminated.

They are transferred to a new legal successor entity. This means that during a reorganization, succession always arises, which distinguishes it from when succession does not appear.

Reorganization is often a voluntary procedure. The decision is made by the founders or other bodies that have the appropriate powers in accordance with the constituent documentation.

The process is carried out with the consent of government agencies. Separation and allocation is carried out only compulsorily.

The decision in this case is made by a court or other competent authority. It may follow if the requirements of antimonopoly laws are violated.

If everything is not represented Required documents, or they do not contain provisions on legal succession, the authorized body will refuse to register the newly created legal entity. This means that the reorganization will be declared invalid.

If it is impossible to determine legal successors for any obligations, the newly opened enterprise will be jointly and severally liable to the creditors of the company that was reorganized. That is, creditor interests are protected.

What should employees of business entities do?

During the reorganization, the privatization of property objects of the state and municipality takes place.

Often the basis for illegal privatization is a decision made by the assembly labor collective unitary enterprise. But the decisions of the company's employees have no legal significance.

Only the owner can make such a decision. It is impossible to mix the norms of civil and labor legislation. The staff also does not have the right to challenge the reorganization.

What rights do employees have?

If the employee does not want to work under different conditions after the transformation of the company, the employer offers another position that can be performed taking into account the employee’s health.

Jobs are offered in the area. A vacancy may be offered in another territory if this is stated in the contract. If there is no work, then the employment contract will be terminated, as discussed above.

If there is a reason that could lead to mass layoffs, the employer approves an internal act that will introduce part-time or less than a week. Acceptable periods are six months.

If the employee does not agree to such conditions, the employment contract is terminated in accordance with clause 2, part 1, art. 81 TK. In this case, appropriate payment of all compensation must be made.

The main difference between reorganization and liquidation is that in the first case, rights and obligations continue to exist, but they are transferred to the legal successors.

It is this feature that makes the procedure often indispensable when a company does not want to stop doing business.

But you should also pay attention to the shortcomings, because at the beginning of the journey you may encounter a number of problems. Be careful - strictly adhere to the law when starting a reorganization.