general information
Reorganization of a legal entity means its liquidation with the subsequent formation of a new one, which is its legal successor.
In some cases, several companies are liquidated at once in order to create one large one. In others, on the contrary, one company is divided into many small ones.
Russian legislation allows for reorganization in five ways:
- Merger.
- Absorption.
- Selection.
- Separation.
- Change of organizational and legal form.
A merger is considered a form of reorganization of several enterprises at once, whose owners decided to merge into one company.
Takeover , also called annexation, is a form of reorganization in which one company takes over another, becoming its successor.
Spin-off is when the owners of a company decide to create one or more new companies on its basis, allocating to them the property of the previous company, giving them part of the responsibilities.
Division is very similar to spin-off, the only difference is that the old company is destroyed, and in its place several new ones arise, which are successors to varying degrees.
Transformation occurs when the old organizational and legal form of the enterprise has exhausted itself and is not suitable for the development of the company. Then the owners decide to change it, liquidating not even the enterprise itself, but its old order of organization. For example, if the owners of an LLC want to transform the company into an OJSC.
How to understand what is happening - reduction or reorganization? According to Article 75 of the Labor Code, reorganization itself cannot be considered a reason for dismissals .
But at the same time, they are almost always accompanied by them, because the new organization does not need two identical staff positions or it does not need any position at all.
Downsizing and reorganization predominantly occur together during acquisitions and divisions, and is much less common in other forms of reorganization.
The company is in the process of reorganization
- creation of one or more new (reorganized) legal entities;
- termination of one or more previous (reorganized) legal entities.
Yellow markers in the table highlight columns that indicate the consequences of one or another type of reorganization.
When joining, merging and transforming, a transfer act is drawn up, and when dividing and separating, a separation balance sheet is drawn up
Notification forms No. P12003 (approved by order of the Federal Tax Service of Russia dated January 25, 2012 No. ММВ-7-6/ [email protected] ) and No. S-09-04 “Notification on the reorganization or liquidation of an organization” (approved by order of the Federal Tax Service of Russia dated June 9, 2011 No. ММВ-7-6/ [email protected] )
- notify all existing creditors of the reorganization, and also publish messages about the reorganization in the “Bulletin of State Registration” (clause 1 of Article 60 of the Civil Code of the Russian Federation, order of the Federal Tax Service of Russia dated June 16, 2006 No. SAE-3-09 / [email protected] ).
In general, the new employer is obliged to notify the employee in writing of changes in the terms of the employment contract no later than two months in advance (Article 74 of the Labor Code of the Russian Federation).
Compensation for unused vacation will have to be paid only in one case - if the employee quits after reorganization.
In this case, it is advisable to issue a certificate at the end of the illness, that is, during the period when the reorganization is completed.
In this case, the benefit will be calculated based on the data from the above-mentioned certificate of the amount of earnings
In this case, the amount of benefits should not change, since the calculation will be made based on the data from the above-mentioned certificate of earnings
If the reorganization occurred during the reporting period, then submitting settlements to the Pension Fund and the Federal Social Insurance Fund of the Russian Federation for the predecessor is the responsibility of the successor (Part 16 of Article 15 of Law No. 212-FZ)
After the base reaches the maximum value, contributions must be calculated at a rate of 10% (if there is no right to benefits) (Part 4 of Article 8 and Part 1 of Article 58.2 of Law No. 212-FZ).
In order for the successor to begin providing the deduction, the employee must receive a new notification (letters from the Ministry of Finance of Russia dated August 25, 2011 No. 03-04-05/7-599 and the Federal Tax Service of Russia dated September 23, 2008 No. 3-5-03/ [email protected] ) and write application for deduction (Article 220 of the Tax Code of the Russian Federation).
Reduction during reorganization
Once the decision to reorganize has been made, provide notice to your employees. This is not mandatory, but it is necessary for employees to familiarize themselves with the new working conditions .
Those who do not agree with them are subject to dismissal; you will have time to make a corresponding entry in the work book for everyone.
After this, you need to write an order to reduce staff.
It provides a reference to the specific meeting of the board of directors or other governing body where the decision to reorganize was made.
After this, it is indicated which positions and in what quantity are subject to reduction. A person responsible for all this is appointed and a commission is assembled to monitor the progress of the reductions.
The head of the commission is obliged to draw up and send notices of layoffs to employees . Each notice must contain the employee’s first and last name, as well as a link to Article 81 of the Labor Code.
The notice also includes the date of dismissal and a short reminder about the employee’s right to register with the labor exchange or move to another position in the same company.
At the same time, it is necessary to provide employees with other employment options, even if they are less paid.
Notification of upcoming layoffs is sent to employees 2 months in advance . From the moment the employee signs the notice, he has the right to register with the state employment service.
Sample notice of layoff of employee during reorganization.
Also, from this moment on, he officially applies for benefits and subsidies provided by law.
Personnel changes recorded in the reduction order are reflected in the staffing table. This is not a mandatory document, but company owners create it for more transparent reporting. In this case, priority in legal force belongs to the employment contract.
Documents that are required to carry out a reduction in numbers or staff : an order, notifications (to employees and to the regional employment service), a certificate of income of the employee.
If the employee does not want to sign the notice of staff reduction during reorganization, you should find two witnesses to the delivery of the notice and draw up a special act stating that the employee was notified. The act is then attached to the reduction order.
Dismissal of Chief
“To prevent such a situation (two managers, two chief accountants) from happening, the head of the acquired organization is dismissed on the basis of either clause 2 of Art. 278 of the Labor Code of the Russian Federation (an employment contract can be terminated in connection with the adoption by the authorized body of a decision to terminate the employment contract), or clause 6 of Part 1 of 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). He may be hired for another position in the host organization. And in relation to the chief accountant of the acquired organization (if he does not want to resign of his own free will or move to another position), it will be necessary to carry out a staff reduction procedure with the termination of employment relations in accordance with clause 2, part 1, art. 81 Labor Code of the Russian Federation."
But what about GB: I’m on leave for up to 3 years, there are no rates in the new organization and I don’t want to work there, on what basis can I be laid off before the child reaches 3 years old, and receive compensation. I agree to the layoff, the director says wait three years, but then he will be able to fire him under Article 77, paragraph 6. How can I convince him to lay off him in advance?
Who can't be laid off?
Reductions due to reorganization are subject to the general reduction rules.
Basic guarantees for vulnerable categories of workers are provided by Article 261 of the Labor Code.
A pregnant woman cannot be fired due to reorganization . Even if an entire position is being cut, the organization is obliged to leave one job for the pregnant woman.
The same rule applies to women raising children under the age of three, as well as single mothers and those raising disabled people .
When the management of an organization is faced with a choice of whom to fire when reducing numbers, given equal qualifications and labor efficiency, there are privileged groups whose members should be retained.
Among them are persons supporting dependents and members of large families . First of all, it is necessary to save jobs for the only breadwinners in the family and people with serious injuries, war veterans and disabled people.
You cannot lay off workers who are temporarily unable to work if they have provided a certificate of illness. All employees who are on vacation are immune to layoffs.
REFERENCE . All types of leave provide the employee with the same protection against dismissal.
Benefits and guarantees for laid-off employees
Article 178 of the Labor Code provides everyone dismissed due to reduction with severance pay. This is a subsidy that is paid from the company budget in favor of those laid off for several months after the layoff.
The norm is payment within two months . But if the former employee has not found a job even in the third month, he can write an application for an extension of benefits.
ATTENTION . The severance pay for the third month is retained only if he contacts the employment service within two weeks after his dismissal.
Employer's liability for violations
Most of the violations by employers during the reorganization of companies are related to the unlawful dismissal of a person protected by law .
If a pregnant woman, the mother of a young child, or the mother of a disabled person is laid off during the reorganization of an institution, the employer faces criminal penalties.
Article 145 of the Criminal Code provides for this either a fine in the amount of 18 salaries, or forced labor for up to 360 hours.
Reorganization of a company is often accompanied by layoffs . First, an order is prepared, then employees receive notifications. The process is not much different from a regular reduction. The procedure for orders, notifications, benefits and guarantees is general. Therefore, such a reduction will not be a serious problem for management.
Reduce the chief accountant during reorganization in the form of affiliation
transfer record - what kind of transfer? you don't have a translation! But there is no magic in the world, baby. There is only sensitivity, kindness and sensitivity, and also the ability to see through (c). Edited 1 time(s). Last time 2021-12-23 12:01 by Anna_Sergeevna. #11 IP/Host: 193.25.121. Registration date: 12/22/2021 Messages: 8 Re: How to correctly carry out downsizing during reorganization Thank you very much! #12 IP/Host: 193.105.11.
- Salary for the period worked is determined based on the days actually worked and the average daily salary.
- Days of unused rest (annual and additional) - the number of days is multiplied by the average daily wage.
- Bonus accruals are calculated based on the percentage of the salary pre-established in local documents.
- Cash for the period of employment (in case of reorganization leading to staff reduction) is equal to a monthly salary and is paid for 1-2 months (in some cases the period is extended to 3).
