An employment contract is an effective contract for a school worker. Effective contract

Legal memo on the transition to an effective contract in educational institutions

We are publishing an article by our colleague, candidate of psychological sciences, deputy chairman of the trade union committee of PPO workers of the Russian National Research Medical University. N.I. Pirogov and a member of the Central Council of our trade union Yulia Vladimirovna Chebakova from the new athe second column: "One person plus the law - already the majority" (Calvin Coolidge), devoted to legal issues in the education system.

Legal memo on the transition to an effective contract in educational institutions

The introduction of an effective contract in all areas of state (municipal) provision is declared by the authorities as a way to optimize the wage system, the purpose of which is to increase wages and the quality of services in the public sector. The regulatory framework for an effective contract in the field of education is defined by the following legal documents:

• 1. Decree of the President of the Russian Federation of May 7, 2012 No. 597 “On measures to implement state social policy”;
• 2. The State Program of the Russian Federation "Development of Education" for 2013-2020, approved by the order of the Government of the Russian Federation of May 15, 2013 No. 792-r;
• 3. The program for the gradual improvement of the wage system in state (municipal) institutions for 2012 - 2018, approved. Decree of the Government of the Russian Federation of 26.11. 2012 No. 2190-r;
• 4. Order of the Ministry of Labor of Russia No. 167n dated April 26, 2013 “On approval of recommendations for formalizing labor relations with an employee of a state (municipal) institution when introducing an effective contract”;
• 5. Letter of the Ministry of Education and Science of Russia dated September 12, 2013 No. NT-883/17 “On the implementation of Part 11 of Article 108 of the Federal Law of December 29, 2012 No. 273-FZ “On Education in the Russian Federation””.
• 6. Performance indicators of subordinate state, municipal educational institutions, approved by local governments.

The very idea of ​​an effective contract can indeed become the basis for the implementation of a differentiated approach to the work function performed and stimulate the improvement of the quality of work of teachers. I think that many are already ready to reproach Dmitry Livanov with the hypocrisy of pretentious concern about the professional well-being of teachers and decide that, even if the idea is good, in our country it will turn into a way of manipulating and enslaving the teacher, and authorities at various levels will be to blame for this. We can partly agree with this: the university management will definitely try to use an effective contract as an opportunity to worsen the working conditions of employees and save the budget. However, this can only be done if we ourselves allow the legal system to work against us. In this article, I will give the main legal provisions of the transition to an effective contract, as well as point out the dangers that may lie in wait for teachers on the example of the transition to an effective contract at the Russian National Research Medical University. N.I. Pirogov.

What can and should a trade union do?

In the Program for the gradual improvement of the wage system in state (municipal) institutions for 2012 - 2018, approved by order of the Government of the Russian Federation of 26.11. 2012 No. 2190-r, the definition of an effective contract is given:

« An effective contract is an employment contract with an employee, which specifies his job duties, wage conditions, performance indicators and criteria for assessing the effectiveness for assigning incentive payments depending on the results of work and the quality of public (municipal) services provided, as well as social support measures.».

Thus, an effective contract is not a new legal form of an employment contract, but includes changes relating only to wages and the conditions for its payment.

An effective contract should clarify and specify:

• 1) labor function;
• 2) indicators and criteria for evaluating the effectiveness of activities;
• 3) the amount and conditions of incentive payments, determined taking into account the recommended indicators.

According to article 135 of the Labor Code of the Russian Federation, " local regulations establishing wage systems are adopted by the employer, taking into account the opinion of the representative body of employees". This means that the performance criteria, on the basis of which the incentive part of wages is set, must be developed taking into account the opinion of the trade union.

The trade union, as an elected body of workers, must submit its proposals regarding performance evaluation indicators. Those. the employer does not single-handedly set these criteria, but jointly with the elected body of employees. Of course, the chairman of the trade union committee of the trade union with which the rector concluded a collective agreement (trade union, which includes at least half of the institution's employees) has the legal right to sign the local regulatory act regarding incentive payments. In practice, these are FNPR-vskie, often "pocket" trade unions. However, even a small independent trade union organization operating in the university can and should try to submit its proposals for agreement with the main trade union or directly with the rector. There is already a question of business tactics and the very content of performance evaluation indicators, which could be the subject of a separate article.

What can an employee do?

According to paragraph 5 of the Order of the Ministry of Labor of Russia dated April 26, 2013 No. 167n, it is recommended to switch to an effective contract by concluding an additional agreement to the employment contract in accordance with Art. 74 of the Labor Code of the Russian Federation - a change in the terms of an employment contract determined by the parties for reasons related to changes in organizational or technological working conditions. In accordance with part 2 of this article, “the employer is obliged to notify the employee in writing of no later than two months in writing about upcoming changes determined by the parties to the terms of the employment contract, as well as about the reasons that necessitated such changes, unless otherwise provided by this Code” . Those. two months before the planned transition to an effective contract, the employee must receive notification of the relevant changes in the terms of remuneration. The employee will have two months to make a decision; during this time, he must familiarize himself with the criteria for assessing labor efficiency, the conditions and amounts of accrual of incentive payments.

The employee has the right not to give consent to the transition to an effective contract before familiarizing himself with the new terms of remuneration. The new supplementary agreement is signed in accordance with Art. 72 of the Labor Code of the Russian Federation and assumes that “changes in the terms of the employment contract determined by the parties, including transfer to another job, are allowed only by agreement of the parties to the employment contract.” The employer cannot transfer the employee without his consent to an effective contract, and upon transfer, according to Art. 9 of the Labor Code of the Russian Federation, “agreements, labor contracts cannot contain conditions that restrict the rights or reduce the level of guarantees for employees in comparison with those established by labor legislation and other regulatory legal acts containing labor law norms. If such conditions are included in a collective agreement, agreement or employment contract, then they are not subject to application. Those. when switching to an effective contract, the employer must comply with the procedure for transferring employees in accordance with the recommendations developed by the Russian Ministry of Labor, and also not reduce the level of employee guarantees compared to the previous wage conditions.

If all these conditions are not met, the dismissal of an employee if he does not agree to switch to an effective contract will be illegal. The very question of the admissibility of dismissal of an employee if he does not agree to switch to an effective contract (sign an appropriate additional agreement to the employment contract) remains uncertain in the legal sense. On the one hand, according to Art. 74 of the Labor Code of the Russian Federation, “if the employee does not agree to work in the new conditions, then the employer is obliged in writing to offer him another job available to the employer (both a vacant position or a job corresponding to the employee’s qualifications, and a vacant lower position or lower-paid job)”, and “in the absence of the specified work or the refusal of the employee from the proposed work, the employment contract is terminated in accordance with paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation - the employee's refusal to continue working in connection with a change in the terms of the employment contract determined by the parties. On the other hand, the Ministry of Labor of Russia in its recommendations points to the order of Art. 74 of the Labor Code of the Russian Federation when switching to an effective contract, but does not offer a procedure for the employer to follow if the employee refuses to accept the new terms of remuneration. Also in Art. 74 of the Labor Code of the Russian Federation does not spell out a complete list of working conditions, which should be classified as organizational or technological, so the question of whether changes in the wage system correspond to these conditions remains open.

What "pitfalls" can be expected from the employer when switching to an effective contract?

I will illustrate the possible dangers on the example of the transition to an effective contract RNIMU them. N.I. Pirogov, who committed a large number of legal violations.

1. Hurry - you will certainly screw up.

In accordance with the Program for the gradual improvement of the wage system in state (municipal) institutions for 2012 - 2018, approved. Decree of the Government of the Russian Federation of 26.11. 2012 No. 2190-r, completion of work on concluding labor contracts with employees in connection with the introduction of an effective contract is expected at the third stage, covering 2016-2018. The desire of the rector A.G. Kamkin to transfer employees to an effective contract from January 1, 2015, i.e. at least a year before the deadlines, probably, and identified all subsequent violations. So paragraph 5 of the Order of the Ministry of Labor of Russia dated April 26, 2013 No. 167n states that it is recommended to conclude an additional agreement to the employment contract as indicators and criteria for assessing the effectiveness of the work of employees of the institution are developed to determine the size and conditions for the implementation of incentive payments.

In RNIMU them. N.I. Pirogov, teaching staff received notifications about the transition to an effective contract as early as mid-October 2014, when there were still no criteria for assessing labor efficiency. Moreover, although the notifications had a deadline of December 15, 2014, the deadline was reduced to November 1, 2014 by oral instructions. Because in the notice it was rather ultimatum stated that in case of disagreement or lack of response, the employee will be dismissed in accordance with paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation, my former colleagues obediently complied with the oral order. By the way, dismissal on the basis of a lack of response is illegal, because. notice basically functionally serves the purpose of informing.

2. Make sure that the employer "does not drag" the change in the urgency of the employment contract.

So in RNIMU them. N.I. Pirogov rector A.G. Kamkin arbitrarily changed the urgency of the employment contracts of those workers who in the summer passed the next competitive selection for positions. Instead of termless contracts with the obligatory passage of the competition once every 5 years in accordance with Part 3 of Art. 332 of the Labor Code of the Russian Federation, contracts began to be concluded for 1 year.

In his presentation (slide 28) on the official website, Rector Kamkin explained this by the transition of all teaching staff from 2015 to an effective contract, which is completely not based on law. BUT " the dean's commission, consisting of three well-known scientists from the Russian Federation and two from the European Union, will evaluate what each employee has accumulated there in a year».

By the way, from January 1, 2015, i.e. that's almost yesterday and, as usual in our country, on New Year's Eve, part 3 of Art. 332 of the Labor Code of the Russian Federation has become invalid. Now, instead of a competition, attestation will be held (part 10 of article 332 of the Labor Code of the Russian Federation), which for teachers working under open-ended employment contracts will also take place once every 5 years. Therefore, the Labor Code of the Russian Federation does not know what kind of regulation of the commission Kamkin talked about again.

In general, Chapter 52 of the Labor Code of the Russian Federation on the features of regulating the work of teaching staff has undergone significant changes in accordance with the Federal Law of December 22, 2014 N 443-FZ, which I will discuss in detail in the next publication. Returning to the topic of an effective contract, when signing an additional agreement to an employment contract when switching to an effective contract, please note that the changes relate only to the remuneration system. If the employment contract with you was concluded for an indefinite period, make sure that the employer, under the “effective noise”, did not make the contract urgent - this will reduce your guarantees as employees.

3. Performance criteria you didn't choose could cost you incentive payments.

So, in your employment contracts there is information about the base salary and incentive payments. When switching to an efficient contract, you are guaranteed to receive only the base part of the salary, while incentive payments will be accrued if your work meets the performance indicators adopted in your educational institution. Here is the rector of RNIMU them. N.I. Pirogova A.G. Kamkin, as usual, simply posted the criteria for evaluating efficiency on the official website, without familiarizing the employees with them against signature, and additional agreements have not yet been signed before the New Year, despite the deadline for switching to an effective contract from January 1 specified in the notifications 2015. But for example, a couple of mandatory criteria for evaluating the effectiveness of the teaching and methodological work of a teacher:

• A textbook in Russian, recommended by UMO, with an ISBN index and indexes adopted in Russia, with a foreword by the leader of the direction from the Russian Federation and two published reviews, one of which is from the leaders from the EU, USA, Canada.
• A multimedia textbook in Russian, which is one of the sections (modules) of the discipline recommended by the UMO, with a foreword by the leader of the direction from the Russian Federation and two published reviews, one of which is from leaders from the EU, USA, Canada.

And then all the criteria in one way or another are addressed to the reviews of foreign "leaders", especially when it comes to indicators of the effectiveness of research work. And the status of an international university, which Rector Kamkin may not be aware of, does not at all cancel the laws of the Russian Federation, incl. Labor Code. It is unlikely that these criteria were agreed with the elected body of workers and it is unlikely that the opinion of workers was even supposed to be taken into account in the project. The “cost” of each of the criteria is also unknown, which not only contradicts the requirements of the Program for the gradual improvement of the wage system in state (municipal) institutions for 2012-2018, approved by order of the Government of the Russian Federation of November 26. 2012 No. 2190-r, but also excludes any transparent mechanism for incentive payments.

As a result, my former colleagues agreed to an effective contract, the criteria for evaluating the effectiveness of which are difficult to achieve, and, therefore, they are very likely to lose part of the stimulus payments previously guaranteed to them, and their salaries will mostly decrease contrary to the goals set by the government and the president. In addition, they will be evaluated annually by an incomprehensible commission for incomprehensible reasons. This is an example of how workers can reduce their level of labor guarantees without exercising the rights (as Dmitry Livanov rightly noted - the rights of the “social contract”) that the system of legislation of the Russian Federation provides them.

Until the legal forum of the site has started its work, all additional questions can be asked in the comments.

By Decree of the Government of the Russian Federation of November 26, 2012 N 2190-r, the Program was approved, which provides for the improvement of the system of remuneration for employees of state institutions and is designed for the period from 2012 to 2018 (hereinafter referred to as the Program). In accordance with the Program, effective contracts with employees began to be introduced in many areas, including education, health care, and culture. The basis for innovations in the organization is the order to switch to an effective contract, a sample of which will be given in this article.

Action plan for the transition to an effective contract

The regulatory framework for the implementation of the transition includes:

• A program that contains, among other things, an exemplary contract form;
• Decree of the President of May 7, 2012;
• action plans developed in various fields of activity at the federal, regional and local levels;
• Recommendations on registration of labor relations, approved. April 26, 2013 by the Ministry of Labor of Russia;
• recommendations on the development of performance indicators in various areas;
• evaluation criteria and recommendations for their application, approved in the regions and locally.

The action plan, as a rule, is contained in the order for the transition to an effective contract. The mandatory form of this order is not approved, however, according to generally accepted practice, the order usually contains:

• name of the institution and details of the order (date, number);
• a provision on the transformation of labor relations with employees in accordance with the requirements for an effective contract;
• regulation on the approval of the commission, which is designed to develop performance indicators for employees of the institution, regulations on remuneration and new forms of labor contracts, including additional agreements that change existing labor contracts;
• an indication of the need to notify employees of upcoming changes and the conclusion of additional agreements.

Depending on the stage at which the order is issued, it can approve the indicators developed by the commission, the incentive procedure and the form of an effective contract.

The transition order and other documents on this issue (regulations on the assessment of the work of employees, new forms of employment contracts, local acts on remuneration, including incentive payments, etc.) are posted on the official website of the institution.

Sample order for transition to an effective contract

Introduction of an effective contract: additional agreement

Additional agreements are concluded with employees who are in an employment relationship with the employer at the time of the transition, taking into account the provisions contained in Article 74 of the Labor Code of the Russian Federation, since there is a change in the terms of the employment contract that cannot be saved.

The employee must be notified at least two months before the change takes effect. If the employee was not notified, but signed an additional agreement, it is considered that the employee, by his actions, expressed his consent to the changes.

When introducing an effective contract in education, culture, healthcare and other social spheres, an additional agreement is concluded after the development of indicators and evaluation criteria by a particular institution.

The supplementary agreement states:

• the reasons why the terms of the employment contract are changed (in this case, the Program indicated at the beginning);
• labor obligations of the employee (if they were not specified or specified in the employment contract);
• employee performance indicators and criteria for its evaluation;
• the procedure for remuneration, including compensation and incentive payments;
• provisions on social insurance and other support measures, etc.

It should be noted that if the terms of the additional agreement worsen the position of the employee and contradict labor laws and local acts, the employee may refuse to sign it and complain about the employer.

Sample supplementary agreement to an employment contract in connection with the transition to an effective contract

From this article you will learn:

The transition of state and municipal institutions to is carried out within the framework of the implementation of the State program for improving wages in them. It was approved by Government Decree No. 2190-r dated November 26, 2012 (hereinafter referred to as the Program). Its implementation is designed for the period up to 2018. This innovation has raised a number of questions both from the heads and employees of personnel services, and from the employees of such institutions. Consider what constitutes an effective contract, samples of this document for institutions of various fields of activity, and how the transition to an effective contract should take place.

What is an effective contract

The regulatory framework for the transition to a new system of labor relations in the public sector, in addition to the Program, consists of:

• Decree of the President "On measures for the implementation of social policy" No. 597 of 07.05.2012;
• Order of the Ministry of Labor No. 167-n dated April 26, 2013, implementing recommendations for concluding effective contracts with employees of budgetary institutions;
• Industry roadmaps for the transition to an effective contract.

The reason for the gradual transition to a new system of remuneration in the public sector was the decision to make the level of income of teachers, doctors, cultural and social workers directly dependent on the quality of the services they provide. The plan for the transition to an efficient contract aims to bring wages first to the level of the average for the region, and then to double its increase.

Among other goals pursued by a change in a number of sectors of the public sector, are called:

• increasing the prestige of professions, undermined by low wages;
• increasing the general level of qualification of employees of budgetary institutions;
• improving the quality of state and municipal social services;
• transparency in the formation of remuneration for both ordinary employees and managers.

As explained in the Program, an effective contract is a type of employment contract. The name should not be misleading, we are not talking about public service, employees of budgetary institutions remain in the same status, the nature of their remuneration by the state employer is simply changing somewhat. fully complies with the provisions of Art. 57 of the Labor Code of the Russian Federation. It must specify all the required conditions:

• place of work (in our case, a specific institution);
• labor function;
• the amount of wages and various allowances;
• mode of operation and its nature;
• description of working conditions, etc.

OUR REFERENCE

The provisions of the Program and other regulations do not imply changes to the text of the Labor Code, but contain a requirement to specify those terms of the employment contract that relate to job duties and the remuneration system. The Ministry of Labor, in order to bring personnel documentation to uniformity, recommends using a sample additional agreement to an effective contract, given as an appendix to Order No. 167-n. That is, we are not talking about a new type of employment contract, but only about clarifying certain points, in relation to its conditions.

The difference between an effective contract and an employment contract

Transition to an efficient contract

The action plan for the transition to an effective contract must necessarily begin with the development and criteria for its evaluation. This is done by a special commission appointed by the order on the introduction of an effective contract. Without this point, all further activity simply loses its meaning.

The second step should be to amend the local acts of the organization. This is logical, because the system of remuneration is changing, which will require a revision of the conditions of the relevant provision and the collective agreement. All changes made are approved by orders (with the exception of the collective agreement).

And only after that you can proceed to the conclusion of additional agreements with employees to. We are talking about those employees who are already working in the institution. With newcomers to work, such contracts will be concluded from the very beginning.

OUR REFERENCE

The order of the Ministry of Labor states the need to comply with the procedure provided for in Art. 74 of the Labor Code of the Russian Federation. This article provides for the possibility of changing a number of conditions of the employment contract unilaterally, at the request of the employer. But only in the case when, for objective reasons, the previous conditions cannot be preserved.

The step-by-step procedure for the head of the institution will be as follows:

1. Acquaintance with normative documents and basic performance indicators developed by the founder (state or municipality). Familiarity with the mechanisms set out in the task for evaluating performance.
2. Issuance of an order on the transition to an effective contract. It names the reasons that caused the necessity and inevitability of such a step. In our case, the Program and other regulations can be indicated as justification. At the same time, a working group is appointed by the same order, which will develop a provision on an effective contract and efficiency criteria for a particular institution, using the recommendations of the Ministry of Labor and industry departments. Employees of all departments get acquainted with the order. The sample order for the transition to an effective contract should contain the date when this will happen.
3. Carrying out explanatory work in the team and analysis of existing employment contracts.
4. Development and adoption of new local acts reflecting changes in the wage system. When adopting them, it is necessary to obtain and take into account the opinion of the trade union organization. Changes are also made to the job descriptions of employees. At the same time, draft treaties and additional agreements are being developed.
5. the notice of the introduction of an effective contract, the employer is obliged to state in writing the reasons for the changes in the employment contract. According to lawyers, the need to change the pay system fully falls under the criterion of organizational changes, which gives the employer the right to change the terms of the employment contract at will. A sample notification of transition to an effective contract can be found on our website.
6. Conclusion of additional agreements. Since we are talking about changes in the terms of existing employment contracts, only this procedure is permissible. Termination or termination of the contract means dismissal for the employee. The employer has the right to do this on his own initiative only in strictly defined cases (Article 81 of the Labor Code of the Russian Federation). The transition to an effective contract system does not apply to them.
7. Resolution of the situation with those employees who do not want to work in the new conditions.

Let's dwell on the last point in more detail. Art. 72 of the Labor Code of the Russian Federation obliges the employer to obtain consent from the employee for any changes in the employment contract. And the cases under Art. 74 of the Labor Code of the Russian Federation will not be an exception. The employee has the right to independently decide whether the conditions offered by the employer are suitable for him. And agree to change the employment contract or refuse.

If the employee refuses to sign an effective contract, then the employer must offer him a transfer to another position to which the contract does not apply. However, given the general obligatory nature of such a wage system, it is easy to assume that there simply will not be such vacancies. The employer is not required to create them specifically.

In such a situation, after the end of the warning period (or earlier, but only by mutual agreement), the employment contract with the stubborn employee is terminated, since Art. 77 of the Labor Code of the Russian Federation, an appropriate basis is provided for this. The general procedure for dismissal in this case is observed:

• an order is issued to terminate the employment contract (form T-8), in which paragraph 7 of Art. 77 of the Labor Code of the Russian Federation;
• the employee gets acquainted with the order and confirms this fact with a signature;
• a record of the relevant content is made in the personal card (T-2 form) and work book;
• the record of dismissal is certified by the seal and signatures of the head of the personnel service and the employee himself;
• a work book is issued, a calculation with all accrued compensation and the necessary documents.

The Ministry of Labor recommends that when drawing up additional agreements when switching to an effective contract, adhere to the requirements of Art. 57 of the Labor Code of the Russian Federation. At the same time, the definition given in the program requires that the employment contract be supplemented by specifying such conditions as job duties, pay, and performance criteria. They must be set out in an additional agreement.

Regardless of which area the institution belongs to, the additional agreement must necessarily reflect those points that were not previously included in the employment contract. In particular, it is recommended that job responsibilities be reflected directly in the text of the agreement. If the employee combines positions, then it is additionally indicated what kind of work and to what extent he is entrusted.

As for industry specifics, they are reflected in the criteria that should be followed when evaluating efficiency. Consider what recommendations are given to institutions in the field of education, health, culture and social services.

Compensation under an effective contract

The system of remuneration in the implementation of an effective contract fully complies with the requirements of labor legislation. This means that it includes the base part (salary), compensation payments and the incentive part. It is the size of the latter that will be affected by the achievement of the indicators specified in the contract.

1. ​For the high result and intensity of work. They may also include bonuses for performing work of particular importance or requiring increased responsibility.
2. For the quality of work. In addition to the bonus for excellent performance of the state task, it may include allowances for category upgrades.
3. For continuous professional experience and length of service.
4. Bonuses based on the results of work for a certain period (month, semester, half a year, etc.).
5. Compensation for work in special conditions and district coefficient, etc.

In the most effective contract or in an additional agreement to an already existing employment contract, all payments are specified in relation to a particular employee. In the future, the criteria and amount of payments will be reviewed when extending or revising the terms of an effective contract.

When transferring employees to an effective contract, the manager must remember that changing working conditions should not reduce the level of guarantees provided for by labor legislation. This concerns not only the size of the salary of employees of institutions, but also the procedure for the transition to a new payment system. Any violations may result in a labor dispute.

10 mistakes when switching to an effective contract

The transition to an efficient contract is an actual change in wage systems and rates. At the same time, the practice of the last two years has shown that budget organizations make mistakes when switching to new wage systems. Some controversial situations have already been considered in courts. From the article, you will find out what mistakes your colleagues make and get recommendations on how to avoid them.

Background

Decree of the President of the Russian Federation of 07.05.2012 No. 597"On Measures for the Implementation of the State Social Policy" The Government of the Russian Federation was instructed to adopt a program for the gradual improvement of the system of remuneration for employees of the public sector of the economy, conditional on the increase in wages to achieve specific indicators of the quality and quantity of services provided. The goal is to preserve the personnel potential and increase the prestige and attractiveness of professions in the public sector of the economy.

The program for the gradual improvement of the wage system in state (municipal) institutions for 2012–2018 was approved (hereinafter referred to as the Program for Improving the Remuneration System, Order No. 2190-r). It provides for the transition to a new system of labor relations, which is based on the mechanism of an effective contract. This mechanism implies the inclusion in the employment contract with the employee of indicators and criteria for evaluating the effectiveness of his activities for the appointment of incentive payments depending on the results of work and the quality of the services provided.

Federal executive authorities were instructed to approve recommendations on formalizing labor relations with employees when introducing an effective contract in terms of setting indicators, criteria and conditions for incentive payments. The result of this assignment was order of the Ministry of Labor of Russia dated April 26, 2013 No. 167n"On the approval of recommendations on formalizing labor relations with an employee of a state (municipal) institution when introducing an effective contract" (hereinafter referred to as the Recommendations on formalizing labor relations with an employee).

It was from April 2013 that state (municipal) institutions began to switch to an effective contract. The process should be completed by the end of 2018.

Consider the typical mistakes that heads of state (municipal) institutions make when switching to an effective contract.

Mistake 1. Drafting an “effective contract” document

An effective contract is not the name of a document, but a term that reflects the specifics of the content of an employment contract with an employee of a budgetary institution.

Labor relations arise between the employee and the employer on the basis of an employment contract ( Art. 16 Labor Code of the Russian Federation dated 12/30/2001 No. 197-FZ, Further - Labor Code of the Russian Federation). The term "contract" in Labor Code of the Russian Federation not used at all.

ADVICE. Enter into a regular employment contract with new hires - on terms that reflect the essence of an effective contract. With employees already working in the organization, formalize the transition to a new wage system with an additional agreement to the existing employment contract.

Mistake 2. Conclusion of fixed-term employment contracts for the transition to an effective contract

Fixed-term employment contracts are concluded only if there are legal grounds for this. Therefore, when applying for a job in a budgetary institution, an employee, as a general rule, is hired for an indefinite period.

Some employers, when making changes related to new wage conditions, set the term of the employment contract. This is illegal for two reasons:

1. There are no objective grounds for changing the term of the employment relationship.

2. The type of contract - fixed-term or concluded for an indefinite period - is determined at the time of its conclusion.

ADVICE. Do not limit the duration of the employment relationship by entering into an effective contract, unless there are grounds for this provided for in Labor Code of the Russian Federation.

Mistake 3. Concluding an employment contract without adjusting the approximate form

In the Sample form of an employment contract with an employee of a state (municipal) institution, approved. Decree of the Government of the Russian Federation dated November 26, 2012 No. 2190-r(hereinafter referred to as the Sample Form of an Employment Contract), not all the conditions that should be included in an employment contract are listed. Therefore, it does not fully meet the requirements Art. 57 TK RF.

Often, employers understand Order No. 2190-r literally and afraid to retreat from An exemplary form of an employment contract, while losing sight of the fact that it obviously does not contain such conditions as the place of work, working conditions at the workplace, guarantees and compensations for work with harmful and (or) dangerous working conditions, indicating the characteristics of working conditions at the workplace (if the employee hired under such conditions), etc.

At the same time, real employment contracts do not always include the conditions listed in An exemplary form of an employment contract:

1. Rights and obligations of the employee and the employer

These provisions are included in the employment contract by agreement. Their absence is not considered as a waiver of these rights or the performance of these duties.

2. Structural unit in which the employee will work

An indication of the specified place of work, including the structural unit and its location, is an additional condition of the employment contract.

3. Entry into force of the employment contract

Fixing this date is an exception. As a general rule, an employment contract comes into force from the day it is signed by the employee and the employer ( Art. 61 Labor Code of the Russian Federation).

4. Working time and rest time

The mode of working time and rest time is mandatory indicated only if for this particular employee it differs from the general rules applicable to the employer.

ADVICE. Include in the employment contract not only the provisions specified in Order No. 2190-r, but also the mandatory conditions defined Art. 57 TK RF.

Mistake 4. Changing the terms of remuneration without specifying the labor function

First of all, in an effective contract, the job responsibilities of the employee should be specified. Sample form of employment contract involves an indication of the specific types of work that the employee must perform, and not just the name of the position, profession, specialty.

Of course, job responsibilities can also be clarified in the job description, giving a link to it in the employment contract (information of the Ministry of Labor of Russia dated November 28, 2013 “Answers to questions from the Government of the Saratov region on monitoring the implementation of Decrees of the President of the Russian Federation dated May 7, 2012 No. 597 “On Measures for the Implementation of the State Social Policy”, No. 761 of June 1, 2012 “On the National Action Strategy for Children for 2012-2017” and No. 1688 of December 28, 2012 “On Some Measures for the Implementation of State Policy in the Field of Protection orphans and children left without parental care”, as well as the Program for the gradual improvement of the wage system in state (municipal) institutions for 2012-2018, approved by the order of the Government of the Russian Federation dated November 26, 2012 No. 2190-r”).

ADVICE. When switching to an effective contract specify the job functions of the employee in an additional agreement to the employment contract.

The employee must be notified two months in advance of:

On upcoming changes to the terms of the employment contract determined by the parties;

About the reasons that caused the need for such changes.

Error 5. The absence in the employment contract of specifying the conditions for remuneration

In an employment contract that meets the requirements of an effective contract, the terms of remuneration, indicators and criteria for evaluating the effectiveness of activities for assigning incentive payments depending on the results of work and the quality of public (municipal) services provided ( Clause 13 of the Sample Form of an Employment Contract).

The Ministry of Labor of Russia, explaining the transfer of workers to an effective contract, recommends:

fix in contracts the names of payments of a compensatory nature, their size, factors that determine their receipt;

· indicate in the contracts the names of incentive payments, the conditions for their receipt, indicators and criteria for evaluating the effectiveness of activities, the frequency, size of payments;

not be limited to references to the provisions of local regulations that regulate the implementation of incentive and compensation payments (clauses 8 and 13 Recommendations on registration of labor relations with an employee of a state (municipal) institution when introducing an effective contract, approved. by order of the Ministry of Labor of Russia dated April 26, 2013 No. 167n, hereinafter - Recommendations).

It is not necessary to indicate in the employment contract the size of all payments included in the salary. This conclusion follows from the literal definition of the concept of "effective contract", given by the Government of the Russian Federation. The only exception is the size of the tariff rate or salary (official salary) of the employee (Art. 57 of the Labor Code of the Russian Federation).

It is not enough, however, to specify individual indicators and criteria for evaluating performance in the contract. The amount of remuneration and encouragement for the achievement of collective labor results should be established. In the Uniform recommendations on the establishment at the federal, regional and local levels of wage systems for employees of state and municipal institutions for 2015 (approved by No. decision of the Russian tripartite commission for the regulation of social and labor relations dated December 24, 2014) it is also said that the employment contract provides for the amount of compensation payments and the conditions for making incentive payments.

ADVICE. Indicate in the employment contract the amount (or method of calculation) of all components of wages.

Mistake 6. Criteria and performance indicators of employees are not developed

Criteria and performance indicators are the basis for changes in the system of remuneration of employees of state (municipal) institutions. Without their development and implementation, it is impossible to make changes to employment contracts and apply new wage conditions.

Please note that the introduction of performance indicators and criteria is regarded by inspection bodies and courts as a change in organizational working conditions. This allows you to use the procedure for changing the terms of the employment contract determined by the parties unilaterally ( Art. 74 Labor Code of the Russian Federation).

ADVICE. Develop criteria and performance indicators for an employee before changing the wage clause in his employment contract.

Mistake 7. Transferring only the main staff of the institution to an effective contract

The legislation does not contain an indication that an effective contract is introduced for certain categories of workers. This means that the new approach to remuneration is applied to all employees working in state (municipal) institutions.

So, by virtue of Order No. 157n, the Recommendations can be applied when registering labor relations with all employees of the institution. For each of them, the labor function, indicators and criteria for evaluating the effectiveness of activities are specified, the amount of remuneration and incentives for achieving collective labor results is established (clauses 1 , 2 recommendations).

If the criteria and performance indicators are not developed for all employees, but, for example, only for key personnel, the goal for which a new system of remuneration of state employees is introduced will not be achieved.

ADVICE. Establish criteria and performance indicators for all employees of the organization.

Mistake 8. No changes are made to the collective agreement, a local regulation on wages

The transfer of employees to an effective contract through the introduction of performance indicators and criteria is changing the system of remuneration in state (municipal) institutions. Transferring employees to effective contracts according to the rules Art. 74 The Labor Code of the Russian Federation, as recommended by the Russian Ministry of Labor, employers forget about one important requirement. Changes in the terms of the employment contract determined by the parties should not worsen the position of the employee in comparison with the established collective agreement, agreements. Therefore, first changes must be made to the collective agreement.

The same is true for local regulations on wages. The salary of an employee is established by an employment contract in accordance with the remuneration systems in force for this employer ( Art. 134 Labor Code of the Russian Federation). In turn, remuneration systems, including the size of tariff rates, salaries (official salaries), additional payments and allowances of a compensatory and incentive nature, as well as bonus systems established by collective agreements, agreements, local regulations in accordance with labor legislation.

ADVICE. First, fix the change in the remuneration system (including indicators and criteria for the performance of employees, the frequency of their assessment) in the regulation on remuneration (collective agreement) and only then draw up additional agreements to employment contracts.

Mandatory terms of an employment contract ( Part 2 Art. 57 of the Labor Code of the Russian Federation):

Place of work, place of work indicating a separate structural unit and its location;

Labor function;

Start date of work;

The term of the contract and the circumstances that served as the basis for concluding a fixed-term employment contract;

Terms of remuneration;

The mode of working hours and rest time (if different from the general rules in force for this employer);

Guarantees and compensation for work with harmful and (or) dangerous working conditions, indicating the characteristics of working conditions at the workplace;

Conditions that in some cases determine the nature of work (mobile, traveling, on the road, etc.);

working conditions at the workplace;

Condition on compulsory social insurance of the employee;

Other conditions in cases stipulated by labor legislation.

Mistake 9. Violation of the procedure for notification of changes in working conditions determined by the parties

Some employers give employees a notice "on the transition to an effective contract", providing in it the negative consequences in case of refusal to sign an additional agreement to the employment contract. At the same time, it is not clear from the content of the notice which conditions of the employment contract are being changed.

To inform the employee about upcoming changes means to directly indicate in the notification what will change in the contract and what the new conditions will be. Failure to comply with this requirement may have negative consequences for the employer: from a fine for non-compliance with labor laws to the recognition of illegal dismissal of an employee in connection with the refusal to continue working in changed conditions.

ADVICE. In the notification of the transition to an effective contract, indicate all changes in the terms of the employment contract.

Mistake 10. Employees who refuse to switch to an effective contract are not offered a transfer

Employers explain this by the fact that the positions that could be offered to the employee also “transfer” to an effective contract, which means that there is no point in talking about them. But article 74 The Labor Code of the Russian Federation contains an imperative rule: dismissal is allowed only if the employee cannot be transferred to another job. To prove the impossibility of the transfer is your, the employer's, task.

ADVICE. For employees who refuse to transfer to an effective contract, offer in writing a transfer to another job.

In conclusion, we note that all attempts by workers through the courts to recognize the transition to an effective contract as discrimination in the sphere of labor, the deterioration of their rights, are unsuccessful. The courts confirm that budgetary institutions operate within the law and introduce wage systems, fulfilling the requirements of the President of the Russian Federation and the Government of the Russian Federation.

This concept appeared in Russian labor law five years ago, so it cannot be called new. The term was introduced into use by the Decree of the Government of the Russian Federation of November 26, 2012 No. 2190-r, which approved the Program for Improving the System of Remuneration of State Employees. In fact, this is a standard employment contract drawn up in accordance with Article 57 of the Labor Code of the Russian Federation, which spells out in more detail some conditions that relate to:

• duties of the employee (labor function);
• wage conditions and social support measures;
• criteria for assessing labor efficiency;
• the concept of incentive payments depending on the results of labor activity.

The transition to a new system of remuneration in an educational institution should ensure a decent level of salaries for teachers and other educators. Therefore, in the contract, its size directly depends on the volume, intensity and quality of the work performed. At the same time, the indicators of one employee are closely related to the performance indicators of the entire educational organization. The transition to an effective contract in education should be phased, and the last phase ends in 2019. This means that by the end of next year, all teachers should receive incentive payments based on their performance.

First steps towards efficiency and regulatory framework

There is a whole list of regulatory documents that must be followed when developing and implementing an effective contract, for example:

• Decree of the President of the Russian Federation of 07.05.2012 No. 597;
• the state program "Development of education" for 2013-2020, approved by the Decree of the Government of the Russian Federation of May 15, 2013 No. 792-r;
• a program for the gradual improvement of the wage system in state (municipal) institutions for 2012-2018, approved by Order of the Government of the Russian Federation of November 26, 2012 No. 2190-r;
• order of the Ministry of Labor of Russia No. 167n dated April 26, 2013;
• Letter No. AP-1073/02 of the Ministry of Education and Science of the Russian Federation dated June 20, 2013 (performance indicators in educational institutions).

In addition, regulatory legal acts of subordinate state, municipal educational institutions approved by local governments for specific cases and branches of education are applied. It is important to understand that any educational organization must bring its activities in line with the new conditions, that is:

1. Eliminate incentive payments for performance that is uncertain. Therefore, employment contracts should not contain vague wordings like “conscientious performance of duties”.
2. Do not consider incentive payments, which are actually a guaranteed part of the salary.
3. Divide the wage fund established in the organization into two parts: guaranteed (official salary) and stimulating (payment for outstanding performance).
4. Approve performance indicators for educators.

To fulfill the last paragraph, it is necessary to apply the recommendations of the Ministry of Education from letter No. AP-1073/02. In particular, the following indicators can be included in an effective contract with a teacher:

The choice of specific items depends on the qualifications of the teacher, his experience and direction of activity. Therefore, let's take a closer look at a sample of an effective contract with a school teacher.

Structure and functions of an effective contract

When drawing up a regular employment contract, the employee's duties are approved by the job description, and the conditions for incentive payments are approved by the organization's local regulatory act. The Ministry of Labor recommends that when drawing up an effective contract, not be limited to referring to the order on compensation and incentive payments, but to write them directly in the document along with labor productivity criteria. These criteria must be evaluated in points, percentages, etc. It is important to remember that the transition to an effective contract in education means that the employee will receive guaranteed only the official salary (rate), and all other incentive payments will be accrued only if his work complies with the accepted in an educational institution, indicators of labor efficiency.

The structure of the document will look like this:

1. Place of work. If the teacher works in a branch, representative office or other separate subdivision, both the address of the main institution and the name of the subdivision with its location should be recorded.
2. Labor function (indicating qualifications, position and specialty).
3. Terms of payment.
4. Mode of work and rest.
5. Length of annual paid leave.
6. Measures of social support.
7. Other conditions due to the specifics of the work of the educational organization.

Labor function

The main problem in developing such a document is related to the definition of measurable performance indicators. These indicators need to be carefully considered and, if possible, tested. It is necessary to indicate directly in the text of the document the job responsibilities (Article 21 of the Labor Code of the Russian Federation), as well as the system of work requirements arising from the requirements for the activities of the institution itself. All job responsibilities must also comply with the approved professional standard for this profession. It might look something like this:

Salary

Working regime and social support

Among other things, the EC must necessarily indicate the measures of social support guaranteed to the teacher. As a rule, we are talking about compulsory insurance provided for by the legislation of the Russian Federation. However, if the organization provides additional social protection, this should also be indicated. It is necessary to prescribe in the EC the duration of the working day, weeks, conditions for engaging in work on weekends and guaranteed annual paid leave.

Drawing up an effective contract or additional agreement

You can formalize the labor relations of employees in the field of education according to the new rules:

• directly at the time of employment;
• in the form of an additional agreement with those employees who are already in labor relations with the organization.

The transition to an effective contract with a teacher and the accompanying amendments to the employment contract are carried out in the manner prescribed by Article 74 of the Labor Code of the Russian Federation. This article allows changing the terms of the employment contract related to organizational issues, by decision of the employer unilaterally. However, it is necessary to notify each employee in writing at least two months before registration. If the teacher refuses to continue working on new conditions, then the employment relationship with him can be terminated in accordance with paragraph 7 of Art. 77 of the Labor Code of the Russian Federation. In this case, a two-week severance pay must be paid (Article 178 of the Labor Code of the Russian Federation).