Labor relations at the enterprise during reorganization. Reorganization of an institution and its consequences for the employee (Davydova E.V.)

The procedure for reorganizing an enterprise affects the interests of legal entity and all employees. The period of change caused by objective circumstances is carried out in accordance with legal norms that management must not violate. Employees sometimes face the question of how to protect their rights and competently defend their interests.

Each enterprise has a charter, a collective labor agreement and other local documents establishing regulations for its existence. There may be objective prerequisites for changing the activities of a legal entity. The law defines the forms of enterprise reorganization, which are selected based on production needs:

• merger with independent legal entities on equal rights and conditions;
• joining a third-party company, accepting its charter;
• division of the main enterprise into several independent ones;
• transformation with possible changes in functions and areas of activity;
• separation from the parent enterprise of a separate structure in the status of a branch or separate production.

Each of the reorganization paths is significant and significant for the further existence of the organization. Changes are made in each case according to established rules. Violation of the sequence is not permitted by law, and the interests of the company’s employees may be affected.

Changes in job responsibilities, various transformations related to employment contract with a specific employee must be carried out on legally. in similar difficult situations when an enterprise changes its legal status.

If an enterprise merges with one or more structures, then the administrative apparatus is released. The new association will not require employees to duplicate their responsibilities, such as human resources or accounting.

In other words, the process of merging, merging, and appending automatically results in the release of duplicate frames. Conversely, reverse transformations, when an enterprise is divided into several independent structures or branches, will require the recruitment of additional management staff.

Structural changes always affect the interests of employees, since new things are created and approved staffing table. The number of jobs changes, new employees are released or hired, and changed wage rates are established.

Unlike a merger, division or affiliation, the transformation may go completely unnoticed by ordinary employees. The transformation can be carried out at the level of changes in the charter, name or change of owner.

New trends and requests from the owner do not immediately affect employees. Employees continue to perform their official functions until new owner will not decide to direct the structure’s activities in a new direction.

A change in the scope of activity automatically leads to the recruitment of citizens with the necessary and necessary specialties, while there is a reduction in workers whose labor skills and specialty become not in demand.

The layoff regulations are also established by the Labor Code, for example, people must be notified two months before the opening of the procedure. In practice, the new owner is trying to optimize all structural divisions and free up, in his opinion, redundant personnel.

Legally, reorganization leads to changes in information in the unified register of enterprises. To do this, you will need to issue an order on the organization and report your intentions to the tax service, for which three days are allotted. Then notification of intentions is made in open access, an advertisement is published in the publication “Bulletin of State Registration”. Information is published twice, with a break of a month, which allows interested parties, counterparties and creditors, to become familiar with the upcoming reorganization.

Creditors are notified in writing by registered mail with notice. This gives them the opportunity to make possible claims regarding the borrower’s fulfillment of financial obligations. A register of creditors is compiled, which determines the sequence, timing and amount of required compensation. If the transformed structure takes over the execution of the loan, then the agreement is formalized in a standard manner.

Information is not removed from the state register until it is resolved financial matters, problems are not solved. Only after fulfilling obligations to employees and coordinating relationships with creditors, the tax inspectorate gives permission to exclude the enterprise from the register.

If it is necessary to create a new structure, the registration procedure is carried out according to the required settings, but only when the enterprise in its previous form ceases to exist.

In addition to clarifying relations with employees, contractors and creditors, management must submit the necessary information from the pension fund, the social security department and the employment office about the planned release of staff. Two months are allotted for these activities; in other words, immediately after the order is issued, organizational activities begin.

When merging or becoming part of a larger structure, questions may arise from the antimonopoly committee. The supervisory authority is designed to protect the consumer market from collusion and excessive pricing of products and services. Obtaining permission and reviewing accompanying documents takes place within one month.

Changes in staffing

The formation of a new staffing table and determination of the amount of earnings takes place before the end of the reorganization. Employees whose services will not be required at the new facility receive two months' notice. The rest are provided with information about possible employment in a different position with a different salary. An employee has the right to agree or be laid off with other employees.

A new position proposed by the HR department does not always match the professional skills or specialty of a particular employee. If the applicant agrees to the offer, then an order is issued to transfer to a new place of work. Sometimes controversial issues arise when an employee decides that his rights are being infringed. During the two months allotted for structural reforms, a citizen has the opportunity to appeal to the labor dispute commission. Illegal actions of management that are contrary to legal norms can be appealed in court.

Claims for violation of labor laws are considered by district courts. If violations are identified and the interests of the worker are infringed, the court will order him to be reinstated at his job and pay wages for workdays missed due to the fault of the administration.

Reorganization of a legal entity, cancellation and its consequences

Reorganization of the enterprise.

In an effort to bring an enterprise out of a crisis, many managers are trying to take the most effective measures. Among such measures, one of the most radical is reorganization.

Reorganization of an enterprise can take place in the form of merger, accession, division, separation and transformation.

During a merger, a new legal entity is formed on the basis of one or more enterprises that are ceasing their activities. A merger is a reorganization in which one enterprise merges with another and thus ceases to exist as such. When dividing, new ones arise on the basis of a legal entity that has ceased to operate. Isolation is considered to be the occurrence new organization on the basis of a continuing legal entity. If, during a reorganization, one enterprise ceases its activities and one or more new enterprises arise on its basis, then this is a transformation.

Many managers willingly agreed to reorganization also because they saw it as one of the reliable ways to evade paying tax debts and penalties. After all, the current legislation did not require newly created enterprises to assume responsibility for the tax obligations of their predecessor. As a result, all debts to the budget remained with the old enterprise, which was then liquidated without repaying them.

However, with the entry into force of the first part of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation), the situation has changed. The Code provides that tax rights and obligations can be fully transferred from a predecessor to an enterprise created on its basis.

In other words, succession in tax relations is now possible. In our opinion, if a newly created enterprise wants to be freed from the tax burden of its predecessor, then it is necessary to pay off all old debts and satisfy all claims of creditors, including the state (debt for mandatory payments to the budget and extra-budgetary funds is treated in accordance with paragraph 1 of Art. 64 of the Civil Code of the Russian Federation to accounts payable of the fourth stage).

Succession in tax law

Succession is understood as the transfer of rights and (or) obligations (in this case, tax) from one entity (legal predecessor) to another (successor). Based on this, debt for payment of arrears, wages, etc., in our opinion, must be included in the separation balance sheet.

But what if the successor has already assumed responsibilities for the tax obligations of the predecessor and it turns out that as a result of a calculation error by the predecessor, an arrear has arisen? In this case, the successor may recalculate and, in accordance with Article 78 of the Tax Code of the Russian Federation, raise the issue of offset or refund of overpaid tax.

The predecessor's obligations to pay fines must also be fulfilled on time. For example, if the legal predecessor. who had a debt to pay a fine had to pay it off within 6 months from the date of discovery of the violation (Clause 1 of Article 115 of the Tax Code of the Russian Federation), now the legal successor must do this. Moreover, the period for paying the fine after succession is not suspended or interrupted for a single day.

The same applies to the deadlines for fulfilling tax payment obligations. In accordance with paragraph 3 of Article 50 of the Tax Code of the Russian Federation, the reorganization of a legal entity does not change the deadlines for fulfilling its obligations to pay taxes.

In other words, the successor, as it were, replaces the legal predecessor and subsequently fulfills his tax obligations.

In civil law (for example, in agreements on the assignment of a right of claim or on the transfer of a debt), the parties can specifically establish that only a certain right or only a certain obligation is transferred to another person, and not the entire set of rights and obligations. In this regard, the question arises: is this possible in tax law? Can, for example, one enterprise transfer its debt to pay arrears or penalties to another enterprise by concluding an appropriate agreement with it? Does one organization have the right to transfer to another the right to demand a refund of overpaid taxes from the budget?

In tax law, the principle “taxes cannot be negotiated” applies. According to this principle, it is prohibited to use tax clauses by virtue of which the obligation to pay tax is assigned to another person. To date, this principle is directly enshrined only in special acts of tax legislation devoted to individual taxes. Thus, in accordance with paragraph 2 of Article 11 of the Law of the Russian Federation of December 27, 1991 No. 2116-1 “On the income tax of enterprises and organizations”, it is prohibited to include tax clauses in agreements and contracts, according to which the enterprise undertakes the obligation to bear expenses for payment of taxes of other payers. In accordance with paragraph 1 of Article 45 of the Tax Code of the Russian Federation, the taxpayer is obliged to independently fulfill the obligation to pay tax, unless otherwise provided by the legislation on taxes and fees.

Requirements for the reorganization of enterprises

In order for tax succession to take place during the reorganization of an enterprise, it is necessary to comply with:

firstly, the requirements of civil law governing the reorganization procedure;

secondly, the norms of antimonopoly legislation;

thirdly, the rules on succession established by tax legislation.

The reorganization procedure is regulated by the Civil Code of the Russian Federation, as well as laws on certain types of legal entities: Federal Law of December 26, 1995 No. 208-FZ “On Joint Stock Companies”. Federal Law of December 8, 1998 No. 14-FZ “On Limited Liability Companies”. Federal Law of May 8, 1996 No. 41-FZ “On Production Cooperatives”, etc.

Notification of tax authorities about reorganization

In accordance with paragraph 2 of Article 23 of the Tax Code of the Russian Federation, an enterprise is obliged to inform the tax authority about liquidation or reorganization no later than three days from the date of such decision.

Tax inspectors have the right to conduct on-site tax audit reorganized enterprises, regardless of when the previous inspection was carried out. Tax inspectorates have no right to demand that a reorganized enterprise fulfill its tax obligations ahead of schedule. But during the audit, they can identify the amount of arrears that must be paid to the budget, and also decide to impose penalties if there are tax violations.

Transfer act and separation balance

If the reorganization is carried out in the form of a merger, accession or transformation, then the rights and obligations are transferred to the legal successors in accordance with the transfer deed. If a division or separation is carried out, then the rights and obligations are transferred to the legal successor in accordance with the separation balance sheet. But until the legal entity is registered, the rights and obligations remain with the legal predecessor, even if the transfer deed and separation balance sheet have already been drawn up and signed.

By the way, these documents must contain provisions on the succession of all obligations of the reorganized legal entity in relation to all its creditors and debtors, including obligations disputed by the parties. If the transfer deed and separation balance sheet are not presented together with the constituent documents, or if these documents do not contain provisions on legal succession, then state registration of the newly emerged legal entity may be denied.

In practice, the question often arises: how to reflect in the separation balance sheet information about the succession of all obligations in relation to all creditors and debtors? After all, the balance sheet items contain only generalized indicators of the results of the financial and economic activities of the enterprise, and it is impossible to determine the amount of debt to specific creditors. Indeed, in the balance sheet it is impossible to specifically show to whom exactly and how much the organization owes. Therefore, it is sufficient that it is clear from the transfer deed or separation balance sheet. that all obligations of the legal predecessor were actually transferred to the successor.

This means that the amount of the asset balance sheet of a legal entity (in case of a merger - legal entity) before the reorganization must be equal to the amount of assets in the balance sheet of legal entity (in case of a merger - legal entity) after the reorganization. Accordingly, the sum of the liabilities of the balance sheet (balance sheets) of legal entities before the reorganization should also be equal to the sum of the liabilities of the balance sheet of legal entities after the reorganization. However, the coincidence of these amounts does not always guarantee that the legal successor is actually able to pay off the debts of the legal predecessor transferred to him using the assets received.

When reorganization is carried out in the form of division or separation, there may be several legal successors. In this case, rights and obligations are distributed between them in proportion to the acquired property. In particular, if, as a result of the division of an enterprise, 10 percent of its entire property passed to one of several legal successors, then 10 percent of all obligations of the legal predecessor to third parties and to the budget should also pass to the same legal successor. Formally, this is expressed as follows. that for each legal successor the amount of the asset balance must be equal to the amount of the liability balance.

In some cases, there is still a need to clearly determine to which specific legal successor the obligations of specific creditors were transferred and in what part. Special significance This is the case during reorganization in the form of division and allocation, when there may be several legal successors, and creditors need to know which legal successor received the responsibility for repaying specific loans.

In this case, the Tax Code of the Russian Federation provides a rule: if the separation balance does not allow determining the obligations of the legal successor to pay debts and taxes of the reorganized enterprise or payment these debts and taxes in full is impossible, then by court decision the newly emerged legal entities can jointly and severally fulfill the financial and tax obligations of their predecessor.

In order to impose joint liability on the legal successors of an enterprise reorganized by division (spin-off), the tax inspectorate must:

Apply to court with a corresponding claim;

Prove in court that the separation balance sheet does not allow determining the share of the legal successor in terms of obligations to pay taxes or excludes the possibility of fulfilling these obligations in full;

Convince the court. that the entire reorganization was specifically aimed at not fulfilling obligations to pay taxes.

But this is quite difficult to do, which means that it is virtually impossible to hold legal successors jointly and severally liable.

In order to avoid bringing the matter to court and to determine which of several successors the rights and obligations to specific creditors have transferred to, a list of debtors and creditors should be attached to the balance sheet compiled upon division. This list should indicate all amounts of receivables and payables that the enterprise had before the reorganization (list the grounds for this debt - contracts, other primary documents). In addition, it is necessary to develop and attach to the balance sheet a procedure for distributing this debt among legal successors after the reorganization. This approach will not contradict paragraph 2 of the Instructions on accounting of individual transactions related to the entry into force of part one of the Civil Code Russian Federation(approved by order of the Ministry of Finance of Russia dated July 28, 1995 No. 81). Subclause 2.1 of these instructions requires, in addition to the transfer deed and separation balance sheet, to prepare financial statements as of the date of reorganization in the prescribed manner. In addition to the mandatory articles, it must include an act containing a list of all amounts of receivables and payables.

Composition of rights and obligations passing to the legal successor

It is established in paragraph 2 of Article 50 of the Tax Code of the Russian Federation. that the duties of the reorganized enterprise to pay taxes must be fulfilled by the successor regardless. did he know before the completion of the reorganization that this enterprise had tax debts? Besides. the successor must also pay all penalties of the reorganized enterprise.

If, before the adoption of the Tax Code of the Russian Federation, the obligation to pay penalties passed to the legal successor only in the case when the amount of the corresponding arrears was identified by the tax authorities before the reorganization, now the legal successor will have to pay penalties even when the arrears are identified after the reorganization.

Fines imposed by the tax inspectorate on the enterprise before the completion of its reorganization are also paid by the legal successor. This is established in paragraph 2 of Article 50 of the Tax Code of the Russian Federation. Fines, decisions on the imposition of which were made by tax authorities after the reorganization, cannot be collected from legal predecessors.

If not one, but several enterprises are separated from a legal entity, tax succession does not arise. This means that the enterprises spun off as a result of the reorganization do not pay any arrears, penalties, or penalties. This must be done by the legal predecessor himself. But if, as a result of reorganization in the form of spin-off, the legal predecessor is unable to pay taxes, then the court, by its decision, may oblige the newly created enterprises to jointly repay the debt to the budget.

Tax legislation provides for the transfer to the successor not only of the tax obligations of the predecessor, but also of his rights. In accordance with paragraph 10 of Article 50 of the Tax Code of the Russian Federation, the amount of tax overpaid by the enterprise before the reorganization must be offset by the tax authority against future tax payments of the legal successor. Such offset must be made within 30 days from the date of completion of the reorganization.

The overpaid amount of tax may be returned to legal successors in accordance with the share of each of them. This share is determined on the basis of the separation balance sheet. In this case, it does not matter whether the successor is in debt for other taxes, penalties, and fines. Refunds are made within one month from the date of application.

In accordance with paragraph 4 of Article 79 of the Tax Code of the Russian Federation, interest must be accrued on the amount of excessively collected tax. This interest is calculated from the day following the day of collection until the day when the overpaid amount was actually returned. The interest rate is equal to the refinancing rate of the Central Bank of the Russian Federation in force on those days.

Fulfillment of tax obligations upon liquidation of an organization

Tax succession and the liability of the founders with their property for the debts of the liquidated organization are two different things. When an enterprise is liquidated, its rights and obligations do not pass by succession to other companies.

Meanwhile, paragraph 2 of Article 49 of the Tax Code of the Russian Federation establishes that if cash the liquidated organization, including those received from the sale of its property, is not enough to pay taxes and fees, penalties and fines, then the debt is repaid by the founders of the organization. The repayment procedure is established by law.

But this does not mean that the tax obligations of enterprises always pass to the founders through tax succession. According to civil law, participants in a legal entity are liable for its debts in strictly limited cases. For example, if the actions of the participants led to the insolvency (bankruptcy) of a legal entity (clause 3 of Article 56 of the Civil Code of the Russian Federation). Besides. The Civil Code of the Russian Federation establishes that participants are responsible for the debts of an enterprise if the enterprises are created in the form of general partnerships and limited partnerships, companies with additional liability and some other types of legal entities. The legislation does not oblige participants in joint-stock companies and limited liability companies to be liable for the debts of these companies.

The process of reorganization of a legal entity is based on universal succession, which represents the transfer of property, property rights and obligations of an economic entity to its successor on grounds. transfer deed or separation balance sheet.

When reorganizing a legal entity, the founders are required to notify their creditors in writing no later than 30 days from the date of the decision to reorganize the company, and when reorganizing the company in the form of a merger - from the date decision made about this by the last legal entity participating in the process of merger or accession.

Creditors have the right to demand termination or early fulfillment of obligations and, accordingly, compensation for losses, regardless of the period of repayment of the debt.

The Civil Code of the Russian Federation (Article 92) and Federal Law No. 14-FZ dated 02/08/98 “06 limited liability companies” (Clause 8, Article 37) establish the need to obtain the consent of all participants in the company to make a decision on reorganization in any form. Federal Law No. 14-FZ dated 02/08/98 provides for five main forms of enterprise reorganization: merger, accession, division, spin-off, transformation. When preparing for transformation, a prerequisite is the preliminary distribution or sale of shares on the company's balance sheet. This decision is made by the general meeting of participants, and the sale, which changes the size of their shares, is carried out by their unanimous decision (Article 24 of Federal Law No. 14-FZ dated 02/08/98). Convening a general meeting, notifying participants about it, providing them with materials for the general meeting and holding the meeting are carried out in the manner prescribed by the charter of the company.

In accordance with Art. 56 of this law, when deciding on the reorganization of a company (partnership) in the form of its transformation into a joint-stock company, the general meeting of participants must consider the following issues:

making a decision on transformation;

making decisions on the procedure and conditions of transformation;

making a decision on the procedure for exchanging shares of company participants for shares of the joint-stock company;

making a decision to approve the charter of the joint stock company created as a result of the transformation;

making a decision to approve the transfer deed.

Converting 000 into a joint stock company involves the following options:

the authorized capital of the joint-stock company being created is equal to the authorized capital of the company (partnership);

shares of the created JSC are paid for by exchanging shares of participants for them;

the participant becomes the owner of a block of shares in the amount of his share in the authorized capital of the company.

With this option, the authorized capital of the joint-stock company actually retains the same structure as the authorized capital of the company.

To change the structure of the authorized capital, they provide for the placement of two categories of shares:

ordinary and privileged.

In this case, when determining the procedure for exchanging shares, a rule is established according to which a share whose size is equal to or less than a certain (arbitrarily selected) size is exchanged for preferred shares, the remaining shares - for ordinary shares. For example, shares less than 5% are exchanged only for preferred shares. In this case, the requirements of paragraph 2 of Art. 25 of the Federal Law “On Joint-Stock Companies”, according to which the par value of outstanding preferred shares should not exceed 25% of the authorized capital of the joint-stock company.

During a spin-off, you can transfer not only assets, but also debts.

When creating a company by separation, it is necessary to take into account two requirements for this procedure.

Firstly, As a result of the reorganization, both transformed and spun-off companies must have the amount net assets no less than their authorized capital.

Secondly, tax debts cannot be transferred during reorganization by allocation to a legal entity (Article 50 of the Tax Code), i.e. they remain in full with the reorganized company.

If debts are transferred to a new company, the assets transferred to it must exceed the debts by an amount not less than the size of its authorized capital. The amount of assets left with the reorganized company must accordingly exceed its remaining debts.

Reorganization of the company in the form of spin-off. requires a preliminary analysis, which includes:

Confirmation of information about the presence of a sufficient amount of net assets;

Identification of the amount of debts of the company;

Studying the structure of debts: the size of civil obligations and the amount of debt for taxes and fees.

When separating a company, you should be guided by the following rules:

The net assets of the reorganized company must exceed or be equal to the size of its authorized capital;

The assets of the reorganized company must represent the sum of the assets of the reorganized and spun off company;

The debts of the reorganized company must not exceed the amount of debts of the reorganized and spun off company;

The net assets of the created enterprise must represent the value of the net assets of the reorganized and separated company.

The company is considered reorganized from the moment of state registration of newly emerged legal entities, with the exception of cases of reorganization in the form of merger. In the latter case, the first of the legal entities is considered reorganized from the moment of entry into state register legal entities records on the termination of the activities of the affiliated enterprise. The supreme body of a legal entity determines the basic conditions and procedure for reorganization and makes a decision on the approval of relevant documents. The main documents are:

when merging: merger agreement, charter or constituent agreement of the company created as a result of the merger; transfer act of each liquidated organization;

upon joining: affiliation agreement and transfer act of each acquired organization;

when splitting: decision on division and creation of new companies, separation balance sheet;

when selected: decision on the separation and creation of a new company, separation balance sheet;

ateducation: decision on transformation, deed of transfer.

When changing the organizational and legal form of the company, the founders must submit the following documents to the relevant registration authority:

Application by a legal entity to change the organizational and legal form of ownership;

Payment order confirming payment for registration of a legal entity;

Charter and memorandum of association, old and new editions;

Minutes of the general meeting of participants;

Application for withdrawal of participants from the founders;

The decision of the company's participants on the transformation;

A copy of the premises rental agreement;

Certificate of absence of debt on rent of municipal space;

Certificate of absence of rent arrears for land lease;

Balance Sheet;

Calculation of net assets;

Documents confirming payment of the authorized capital;

Transfer deed.

Documents are submitted to the registration authority at the place of previous registration of the reorganized enterprise, regardless of whether its location changes after the reorganization or remains the same.

When reorganizing a company, the authorized capital may be changed, as well as the composition of participants due to the admission of new members to the company or the exclusion of those who have left.

The sole founder member of the reorganized company presents the entire list specified documents with the exception of the articles of association. The main document is the charter, which indicates the size of the company's authorized capital.

One of the main points in the reorganization of legal entities is the preparation of a transfer deed and a separation balance sheet. The transfer deed and the separation balance sheet include financial statements drawn up in the prescribed manner, in the amount of the forms of the annual accounting report as of the last reporting date (registration date).

Reorganized legal entities must conduct an inventory of property and liabilities in order to confirm the accuracy of individual articles of the transfer act or separation balance sheet.

The separation balance sheet is drawn up in the form balance sheet, approved by order of the Ministry of Finance of Russia dated January 13, 2000 No. 4n “On the forms of annual financial statements of an organization.” In this case, the separation balance sheet consists of the general balance sheet of the previously existing legal entity and the balance sheets of all new companies.

The transfer act is drawn up by enterprises in any form. It contains the following information:

dacha and registration form;

organizational and legal form and name of the legal successor;

the amount of assets and the amount of liabilities of the balance sheet of the reorganized legal entity as of the date of reorganization with a breakdown by sections of the balance sheet;

list of attached reporting forms;

list of attached inventory lists, matching statements;

list of other attached documents (order on accounting policy enterprises, analytical data on receivables and payables).

The registration authority makes appropriate changes to the state register of legal entities. The company is assigned a new registration number and issued a temporary registration certificate. The procedure for registering a reorganized company with the regulatory authorities is identical to the procedure for registering a newly created company.

Clause 2 of Art. 23 of the Tax Code of the Russian Federation stipulates that in the event of reorganization, an enterprise is obliged to notify the tax authority about this in writing no later than three days from the date such a decision was made by the participants.

In accordance with the order of the Ministry of Taxes of Russia dated November 27, 1998 No. GB-3-12/309 “On approval of the procedure and conditions for assigning, applying, as well as changing the taxpayer identification number and document forms used when registering legal entities and individuals"(as amended on December 24, 1999) an application for registration with the tax authority of a legal entity at its location is submitted within ten days after its state registration in the form established in Appendix No. 3 to the order. In this case, the information specified in the application , must comply with the constituent and other documents necessary for registration.

When registering with the tax authority, the newly created company is assigned a taxpayer identification number (TIN), since the TIN of organizations that ceased operations as a result of reorganization is invalid (p. 3 of Appendix No. 1 to Order No. GB-3-12/309).

The TIN of a company reorganized in the form of spin-off and merger does not change. A company reorganized in the form of a merger is obliged to notify the tax authority about changes and additions to the constituent documents within 10 days from the date of their state registration (Articles 83, 84 of the Tax Code of the Russian Federation).

The created companies in the process of reorganization acquire the obligations of the legal successor to repay debts to creditors (Article 58 of the Civil Code of the Russian Federation), as well as to the budget - to pay taxes and fees of the reorganized legal entity (Article 50 of the Tax Code of the Russian Federation).

References

Literature:

1. Civil law of Russia: course of lectures. Part one. / Ed. HE. Sadikov. M. 1996.

2. Civil law. Textbook. Part 1-3 / Ed. A.P. Sergeeva, Yu.K. Tolstoy. M. 1997.

3. Civil law: textbook. In 2 volumes. / Rep. ed. prof. E.A. Sukhanov. M.: 1999.

Regulatory acts:

1. Civil Code of the Russian Federation

2. Tax Code of the Russian Federation

5. Federal Law of December 8, 1998 No. 14-FZ “On Limited Liability Companies”.

Any reorganization of an enterprise is essentially the birth of a new legal entity. Often, the form of ownership of the company changes, and the assets are transferred to another owner. Reorganization is a rather complex process that can take a lot of time. Labor relations during reorganization are only one of many issues that arise in the process of transforming an enterprise. Only if you have specific experience can reorganization be carried out painlessly and in a short time.

Process Features

Reorganization of an enterprise is somewhat similar to liquidation, although there are a number of significant differences. When reorganizing an enterprise, labor relations imply full repayment of arrears of wages and other mandatory payments.

There are five types of enterprise reorganization:

• Selection. In no case does it mean the cessation of activity, but rather the emergence of a new direction in which one or more new business entities can be formed.
• Joining. A type of reorganization in which one or more entities cease to operate while at the same time assuming the obligations of a new entity.
• Merger. The merger of several entities into one, in which all assets are also combined.
• Transformation. Changing the organizational and legal form of an enterprise.
• Separation. Reorganization of an enterprise, in which several business entities are formed from one business entity, and assets and liabilities are also subject to division.

With any form of enterprise reorganization, the employer will have to face difficult legal and ethical issues: who to keep in the workplace, who to transfer to another, and who to lay off. The most big problem- This is a reduction in the number of employees of the enterprise. Here you can stumble due to the elementary incompetence of the HR department employees, and as a result get a lawsuit and litigation, which will entail further inspections by regulatory authorities and other troubles.

What can we say about people who were laid off? Often, relationships with employers resemble a game of who can circumvent the law more deftly. However, downsizing is often simply necessary and it is important to know how to do it correctly, correctly and at the same time without harming the business, without incurring large costs and without tarnishing the reputation. No matter how sorry it is for people, human resources are the most expensive and must be optimized. This is the first thing that is done in the case of global economic crisis or a crisis situation of an individual company. There are even highly sought-after and very well-paid specialists, so-called crisis managers, who help companies overcome difficult times. And they usually start with the company structure.

Labor relations during reorganization in the form of spin-off

The main thing that a person needs to know about his career prospects as a result of innovations at the company is that reorganization is in no way a motive for terminating a contractual relationship.

As soon as the spin-off company has been registered, the reorganization can be considered completed. After registration, the head of the newly formed company issues an order, which reflects the fact of reorganization.

Since employees may not express a desire to work for the company after the reorganization, they need to be warned about it. A written warning is preferable. For example, this can be done in the following ways:

1. Let the order be read and be sure to ask to sign for familiarization.
2. Send letters to employees personally with the relevant information.
3. Place a copy of the order on the information board.
4. Make an announcement by gathering the team for a meeting.

After this, an entry about the reorganization of the company is made in the work books of all employees who want to continue to pursue a career, but in a new company. It is also necessary to sign additional agreements to the contracts, which will record the name of the enterprise, the individual tax number of the employer and other information that has changed due to the reorganization. The same data is entered into accounting documentation: personal personnel cards and in folders with personal files, if their maintenance is accepted at the enterprise.

As a result of all changes, both rotation of personnel and termination of cooperation between the parties are permissible.

When an enterprise is reorganized in the form of a merger, labor relations are regulated in the same way. It is important to correctly and correctly resolve controversial issues in business relationships with people in order to avoid trials and proceedings with inspection authorities.

It is usually customary to notify employees of the reorganization in the form of an affiliation. This form of reorganization does not entail the loss of work by employees (unlike, for example, the liquidation of a company), therefore there are no direct instructions in the law about the need in general and the timing of notification to employees. However, as a rule, the staffing table changes, and therefore the working conditions of the company’s employees, for example:

• geographical location of the office or production,
• principles of payroll, bonuses and rewards (motivation scheme),
• working day routine.

It is also possible to reduce staff - in these cases, notification of staff is required. Thus, the company's management can afford not to notify only those employees for whom nothing will change at all. He must notify the rest at least two months in advance. The employee, in turn, can agree to the proposed new conditions or resign due to the reorganization of the enterprise. An employee whose working conditions have not changed may also resign for personal or ethical reasons. If he wants to continue working, then the employment contract remains in force. There is no need to fire a person from one company in order to immediately hire him in another. However, in work book and the contract must reflect changes.

The situation is completely different with people with whom the decision was made to part with, or, simply put, to lay off. They must be notified of the upcoming event at least two months in advance. As severance pay, laid-off specialists are entitled to pay one average monthly salary. In addition, these people must retain their average monthly earnings for at least two months until they find a position in another company. When making a decision, the most powerful argument is qualifications. All other things being equal, preference is given to:

• people forced to support two or more disabled people)
• those who acquired a disease or were injured at work)
• disabled people of the Second World War and disabled people of military operations to defend the fatherland)
• those who were sent by the enterprise to improve their qualifications.

Labor relations during reorganization in the form of a merger

The essence of such changes is that several companies merge into one new structure, ceasing to exist. In such a situation, the question arises of what to do with people working in the same positions. As with other types of reorganization, there are no grounds for suspending contractual relations. Each employee can apply for workplace at a new enterprise.

Most likely, the management of the new company will make a decision about who will stay and take the position. Afterwards, this position will be abolished in other enterprises even before the merger, since there is no reason to fire a person due to staff reduction if the position remains on the staff list. People who are “lucky” to be laid off are paid one average monthly income) and the same amount is paid for two months, unless the former employee has found a new job. When a reorganization is carried out, labor relations are such that when selecting persons to be laid off, priorities are set as follows: workers with lower qualifications are the first to be laid off, and the right to retain their jobs remains with preferential categories.

If the employee himself does not want to cooperate with this company anymore, he is obliged to write a refusal.

Labor relations during reorganization in the form of transformation

The labor legislation of any state is always on the side of the employee in any situation. Russian laws also support workers in the event of enterprise reorganization. Often, reorganization in the form of transformation is gentle and almost does not affect the staff, because in essence it is simply a change in the form of ownership or owner. The terms of employment contracts are preserved, employees perform the same tasks in the same place, that is, only the name of the employer in the work book has changed.

If an employment contract with someone is terminated, it is not at all due to reorganization. This is not legal. When reorganizing a company or employer organization, labor relations can be very different. For example, this may be an excuse to part with unwanted employees of the company (and not necessarily bad ones, most often too expensive), who, as a rule, are not as strong in labor law as the company’s lawyers.

The new employer warns staff two months in advance that there may be changes in working conditions. The employee has the right to either accept or reject the new conditions. It is also necessary to notify two months in advance of a reduction in staff or number of employees. After the expiration of the two-month period it is paid severance pay, and earnings are retained for another two months, unless the person laid off finds another job. When making a decision, the most powerful argument is qualifications. All other things being equal, preference is given to preferential categories.

In general, this type of reorganization is the safest and most painless for the team. Although there are situations when a new owner (“new broom”) starts by changing the structure of the enterprise or brings his team, more often competent managers do not cut from the shoulder and do not try to destroy a well-functioning, well-functioning system.

Labor relations during reorganization in the form of division

During a division, a company is divided into several smaller companies, after which it ceases to exist. During this period, tension increases in the team, as the question arises in which organization each employee will work in the future. Labor legislation is silent on this matter, leaving this question at the discretion of the employee and the employer, who are able to agree among themselves.

The remaining points are regulated in the same way as with other forms of reorganization:

1. Two months notice.
2. Obtaining the employee’s consent or refusal to work under new conditions.
3. Amendments to the contract.
4. Displaying a change of employer in the work book.
5. If staff are being reduced, notice must also be given at least two months in advance.
6. Personnel who have been laid off may qualify for severance pay in the amount of one average monthly salary.
7. Personnel who have been laid off can claim to maintain their average monthly income while they are looking for work, but not more than two months.

Preference, as in other cases of reorganization, is given to preferential categories of employees.

All rules regarding severance pay and maintaining the average monthly income for two months also apply to pensioners, since the law in no way distinguishes a pensioner who decides to continue labor activity. In the case of combined work, only severance pay is paid (which is logical, because the person is, in fact, employed).

Regulation of labor relations during the reorganization of an organization can be carried out through negotiations. In the event of a dispute regarding the amount of compensation after a layoff, a conversation is held during which the points of the current legislation are explained to the laid-off employee. Although it seems that the law is quite transparent and should be understandable to anyone, complex and ambiguous situations constantly arise when reorganizing enterprises.

The measured movement of most enterprises up or down is sooner or later interrupted by their reorganization. The Civil Code of the Russian Federation distinguishes the following types of enterprise reorganization: merger, accession, division, spin-off, transformation.

Merger of enterprises - the emergence of a new enterprise by combining all the assets and liabilities of two or more enterprises with the termination of the activities of the latter. In other words, when enterprises merge, a new enterprise is born, which differs from any of the previously existing ones in its name, management, and traditions.

The companies participating in the merger enter into an agreement in which the technical details of the merger are discussed. This agreement is subject to approval by the founders, owners or body of the enterprise authorized to do so by the constituent documents (hereinafter referred to as the supreme body) of each enterprise. For a joint stock company, for example, such a body is the general meeting of shareholders. The same body must also approve the charter of the new enterprise.

Merger of an enterprise is the transfer of all its assets and liabilities to another enterprise with the termination of the activities of the acquired enterprise. Thus, upon merger, one of the enterprises ceases to exist. The resulting enterprise retains the name, traditions and, to a large extent, the management of the enterprise to which the merger is made.

Both enterprises enter into an agreement that defines the procedure and conditions for joining. This agreement is subject to approval by the highest authorities of both enterprises.

Division of an enterprise is the division of its assets and liabilities between two or more newly created enterprises. The decision to divide an enterprise is made by its supreme body, which simultaneously approves the charters of the new enterprises, and, if necessary, approves the supreme bodies of the new enterprises. In this case, the old enterprise ceases to exist.

Spin-off of an enterprise - separating part of the assets and liabilities of an enterprise and transferring them to one or more created enterprises. At the same time, the old enterprise continues to operate. The decision on the spin-off is made by the highest body of the reorganized enterprise. He also approves the procedure and conditions for the allocation.

Transformation of an enterprise is a change in its organizational and legal form.

It should be noted that in cases established by law, for example, when an enterprise abuses its monopoly position in the market, the reorganization of the enterprise in the form of its division or the separation of one or more enterprises from its composition can be carried out against the will of the supreme body of the enterprise - by decision authorized government agencies or by court decision.

At the same time, in cases established by law, reorganization of legal entities in the form of merger, accession or transformation can only be carried out with consent authorized government bodies.

An enterprise is considered reorganized, with the exception of cases of reorganization in the form of merger, from the moment of state registration of newly emerged legal entities.

When reorganizing an enterprise in the form of merging another enterprise with it, the first of them is considered reorganized from the moment an entry is made in the Unified State Register of Legal Entities about the termination of the activities of the affiliated legal entity.

The most important documents related to the reorganization of an enterprise (except for its transformation) are deed of transfer(if there is a business combination) or separation balance(if the enterprise is divided).

The transfer deed and the separation balance sheet must contain provisions on the succession of all obligations of the reorganized enterprise in relation to all its creditors and debtors.

The transfer act and separation balance sheet are approved by the supreme body of the enterprise or the body that made the decision on reorganization, and are presented together with constituent documents for state registration of newly emerged legal entities or amendments to constituent documents existing legal entities.

Since the reorganization of an enterprise may significantly change its creditworthiness, the management of the enterprise or the body that made the decision on its reorganization is obliged to notify the creditors of the reorganized enterprise in writing. In this case, creditors have the right to demand termination or early fulfillment of an obligation for which this enterprise is a debtor, and compensation for losses.

Considering the forms of enterprise reorganization mentioned in the Civil Code of the Russian Federation, it should be understood that they were distinguished from a legal point of view. The economic content of the reorganization does not necessarily unambiguously determine its form. From this point of view, merger and accession are two forms of one economic process- concentration of production through its centralization. We can say that merger and accession are two forms of the process of absorption of one or more enterprises by another.

The fact that the merger of an enterprise is its absorption, apparently, should not raise doubts. The situation with mergers is more complicated. In reality, in most cases, this too is absorption, only carried out in a more hidden form. We say this because a merger is only an outwardly process, symmetrical with respect to both (the case of two merging enterprises) parties involved. In reality, someone always wins; one of the parties will have the opportunity to dictate terms to the other. If, for example, during a merger one of the parties received 60% of the shares of the new enterprise, and the other only 40%, then their votes on the board of directors of the new enterprise are distributed in this way with all the ensuing consequences.

Mergers are more common in cases where:

• - both merging enterprises are approximately equal in size;
• - both companies do not have “big” names;
• - a so-called friendly takeover occurs, i.e. approved by the management of the acquired company.

Let us note that if the acquired enterprise has a “big” name, which, as is known, is expensive and which the absorbing enterprise would like to preserve, it can go for the merger “on the contrary”: the acquired enterprise will remain, but the one that actually absorbed it will disappear. True, by this time the entire management of the absorbed enterprise will be replaced. So, only a shell will remain of the enterprise. This example illustrates the fact that the essence of the absorption process can be strikingly contradictory to the form in which it occurs.

The reasons, forms of takeovers and methods of combating them are discussed in detail below.

Regarding separation and separation, then these are also two forms of one process - the process of decentralization of production, therefore, from the point of view of analyzing the causes, they can also be considered generally. Next we will talk about the division of an enterprise, believing that it can occur in two forms: division or separation.

Reasons and problems of dividing an enterprise

The reasons for the division of enterprises are quite diverse, but it seems that if we leave aside the forced division mentioned above, they can be grouped into two groups: the first - reasons of an industrial nature and the second - of a personal nature. Like any classification, this classification is quite conditional.

Enterprise section for production reasons carried out (or at least proclaimed) in the interests of the development of the entire enterprise. An example is the separation into a separate enterprise of the production of some product or the performance of some function. This often occurs by spinning off and then selling a portion of its assets by the entity. One of characteristic features Such a division is that the owners of the reorganized enterprise, at least for the first time after the division, are simultaneously the owners of the new one (possibly indirectly), and in the event of the sale of the separated enterprise, they remain the owners of the proceeds.

Exercise 3.4

In the previous examples of the section for production reasons, we were talking about allocation enterprises. Give an example when, for the same reasons, it can happen separation enterprises.

Exercise 3.5

Try to classify the reasons of a production nature, highlighting at least three groups.

The division of an enterprise for personal reasons is carried out in the interests not of the enterprise, but of one owner or some group of them. In this case, the owners of the new enterprise and the owners of the reorganized one are, as a rule, different from the very beginning. For example, one of the founders wanted to stand out and continue the business alone. In the event of the sale of a separated enterprise, the proceeds go to only part of the previous owners. It should, however, be taken into account that the section for personal reasons is very often disguised as a section for production reasons.

Let us consider the consequences of these two groups of reasons for enterprises of various organizational and legal forms.

Regarding joint stock companies, then, in the general case, dividing them for personal reasons is simply impossible (and this is one of the main advantages of a joint-stock company over a limited liability company).

Indeed, the founder of a joint stock company only owns a block of shares of a certain size. Therefore, if he no longer wants to deal with this company, he can sell his shares and get as much for them as they are willing to pay him. If no one wants to buy shares from him, it means that when he leaves the founders, he will not receive anything. The above is also true if the contribution to the authorized capital of the company on the part of this founder was not money, but some kind of property or property rights: even if he contributed, for example, a building at one time, then upon exit he still only has the right to money under the conditions formulated above.

Before 2002, the problem in the case considered could only arise in closed joint stock company. It was due to the fact that the charters of most of these companies provided for, firstly, the need for the consent of the remaining members of the company to sell shares to third parties, and secondly, the preemptive right of shareholders to purchase shares of the company. A conflict could arise due to the fact that the shareholders, on the one hand, did not allow the sale of shares to a third party, and on the other, did not want to buy them at the price offered by this person. However, as already indicated, starting from 2002, the consent of other shareholders is not required for the sale of shares of joint-stock companies, although the preemptive right of shareholders to purchase shares in this case remained with the shareholders of a non-public joint-stock company.

Of course, exceptions are possible when the company decides to exchange the shares of a shareholder for the corresponding share of its property. But this is still an exception.

Exercise 3.6

What decisions will the general meeting of the joint stock company make in this case and what will be the mechanism for their implementation?

It is also possible that a clause was added to the charter of the company upon its establishment, providing that in the event of a shareholder leaving it N this shareholder is returned his contribution in kind. But the presence of this point immediately indicates the frivolity of the whole enterprise, since try to imagine how you can return the land on which buildings have already been built, or a building in which equipment is already located, etc. Trying to implement this point will not end well.

Exercise 3.7

It is theoretically impossible, but in practice it is quite common to see division for personal reasons in unitary enterprises. True, in this case, the initiator of this division is not one of the owners (there is only one owner here - the state), but one of the heads of the structural division of the enterprise, who dreams of becoming a director, or, even better, privatizing his “piece”.

However, the threat of division for personal reasons is much more serious for enterprises of other organizational and legal forms: limited liability companies, partnerships, production cooperatives.

For example, in accordance with Art. 94 Civil Code of the Russian Federation participant limited liability companies has the right to leave the company by alienating the company’s share in its authorized capital, regardless of the consent of its other participants or the company, if this is provided for by the company’s charter. When a participant in a limited liability company leaves the company, he must be paid the actual value of his share in the authorized capital of the company or given in kind property corresponding to such value, in the manner, manner and within the time limits provided for by the Law on Limited Liability Companies and the charter of the company . The problem here is that, in accordance with clause 6.1 of Art. 23 of the Civil Code of the Russian Federation, the actual value of the participant’s share must be determined on the basis of the financial statements for the last reporting period preceding the day of filing the application for withdrawal from the company. Meanwhile, it is well known that the real value of the company’s property, as a rule, differs significantly from the financial statements. As a result, the highest arbitration court recommends that in case of disagreement with the assessment of the actual value, contact the services of independent appraisers. It is clear that all this dramatically complicates and delays the assessment procedure, makes it very expensive, and as a result, the position of the limited liability company becomes unstable.

Similar rules apply when leaving partnerships(full comrades) and production cooperatives. In order to somehow protect the remaining members of the cooperative, Art. 109 of the Civil Code of the Russian Federation provides for the possibility of creating indivisible funds in a cooperative.

It should be noted that in any case, the exit of one of the partners is a heavy blow for the enterprise and often leads to its liquidation.

Reasons and problems of enterprise transformation

What could be the main reasons for the transformation of the enterprise, i.e. changes in the legal form?

• 1. Reducing risk through limitation of liability. This reason often explains the transformation of a partnership into a society.
• 2. The need for constant changes in the composition of owners. For example, in 1992, many collective and state farms were transformed into limited liability partnerships (LLPs). However, they soon “reformed” into closed joint stock companies. The main reason was the complexity of the procedure for entry and exit of LLP shareholders and the simplicity of this procedure for the joint-stock company.
• 3. Enterprise growth and increased need for capital. A public JSC usually has disproportionate best opportunities attract additional capital than an enterprise of any other legal form. Therefore, at a certain stage, most large enterprises undergo this reorganization. This path is clearly visible in the example of many new Russian banks and other enterprises. Naturally, other reasons are also possible.
• 4. The emergence of a new organizational and legal form that is more consistent with the content of certain types of activities. Thus, in the already mentioned case of reorganization of agricultural enterprises, the emergence of such an organizational and legal form as a production cooperative led to the massive re-registration of enterprises that previously operated in the form of a limited liability company.

In the process of transforming the organizational and legal form of enterprises, the most important characteristics of the enterprise change:

• - the nature of the formation of equity capital;
• - scale of responsibility of owners;
• - the creditworthiness of the enterprise;
• - the nature of enterprise management.

Therefore, sometimes reorganization may not be as simple as it seems at first glance.

For example, a general partnership with a capital of 5 million rubles. decided to transform into a limited liability company with the same composition of founders and an authorized capital of 10 million rubles. It would seem that nothing could be simpler. However, the creditor, who six months earlier had provided the partnership with a five-year loan in the amount of $200,000, and who (it was believed) had been formally notified of the reorganization, suddenly demanded that the partnership early repayment loan. Why? Because as a result of the proposed reorganization, the nature of the responsibility of the owners changes, and, consequently, the creditworthiness of the enterprise.

The most important problem for most transformations (as, indeed, for most reorganizations in general) is the problem of evaluation.

Let's explain with an example.

Let a non-public joint stock company want to transform into a public joint stock company with an authorized capital of 1 million rubles. Let the joint-stock company have an authorized capital of 10 thousand rubles, and the book value of its property - 50 thousand rubles. (The situation is very typical for many new Russian giants. However, what follows next is even more typical.) The question is, what should the share of the joint-stock company in the new PJSC be equal to, if its contribution is the value of the property it owns? The obvious answer - 5% (50 thousand / 1000 thousand) will be incorrect, since it is not just property that is being contributed, but a working enterprise. The cost of a normally operating enterprise will always be greater than the value of its property. What is the contribution then? The JSC participants valued it at 400 thousand and thereby secured 40% of the votes in the PJSC. Did they estimate correctly? Most likely not. Apparently, they inflated it several times and thereby robbed the future shareholders of the PJSC. But it is almost impossible to convict them of this, since the true market price of an enterprise can only be determined during its purchase and sale.

It should be emphasized once again that such problems arise during any reorganization: during mergers, and during divisions, and during acquisitions. It is no coincidence that the legislation provides for a number of cases when such an assessment is subject to independent expert verification.

Reorganization... without reorganization

In addition to the forms of enterprise reorganization described above, another form is extremely common in world practice: main feature which is that legally it... is not a reorganization.

We have already said earlier that the absorption of one enterprise by another can occur in the form of a merger, in which case the acquired enterprise is liquidated. Can the acquired enterprise not be liquidated as a legal entity, but continue to exist as an independent enterprise? Maybe, but it will only be the same enterprise outwardly. In reality, it will be a completely different enterprise. If enterprise "A" buys enterprise "B", then "B" loses its economic independence, since its economic activity will now be determined by a board of directors appointed and accountable to "A". "A" establishes control above "B". "B" turns into a subsidiary of "A", although all the external attributes of its independence are preserved.

In fact, the enterprise has been really reorganized. We will call this type of reorganization establishing control. Essentially establishing control is no different from annexation. By shape the difference is significant: all forms of enterprise reorganization mentioned in the Civil Code of the Russian Federation are associated with corresponding changes in the register of enterprises. Only after these changes are they considered complete. When establishing control, no changes need to be made to the register of enterprises. This is why we say that establishing control is reorganization (in essence) without reorganization (in form).

It is known that in order to establish control over an enterprise, it is not at all necessary to acquire it entirely.

In order to control an enterprise, it is enough to control its leader (if there is only one) or to have a majority of votes in the highest management body of the enterprise (if it is collective). In relation to a joint stock company they say: you need to have a controlling stake, which allows you to solve the problems formulated above.

Theoretically, it is considered that a controlling stake is 50% plus one share, since this is the number of shares that provides a majority of votes at a shareholders meeting. In practice this is not entirely true.

Firstly, to resolve some issues (including issues of reorganization) 3/4 votes are required. Therefore, 50% of the votes may not be enough.

Secondly, in many joint stock companies, the shares of which are distributed among thousands of shareholders who usually do not attend general meetings, 15-20% of shares or even less is sufficient to obtain a majority of votes at a meeting of shareholders.

Thirdly, the charters of joint stock companies may contain various restrictions that prevent the formation of a controlling stake. For example, the charter of some companies has restrictions that one shareholder cannot own more than 5% of the voting shares. This means that even if someone has 50% of all shares in a company, he has exactly the same number of votes as the owner of 5%.

Acquiring a controlling stake is the most common way to establish control over an enterprise.

According to the legislation of many developed countries market economy an enterprise that decides to acquire a controlling stake in another enterprise is obliged to publicly declare this, which, naturally, leads to an increase in the price of shares and other negative consequences.

In Russia, before July 1, 2006, there was also a similar restriction: a person intending to acquire 30% or more of the shares of a large joint stock company, in accordance with Art. 80 of the Law on Joint Stock Companies was obliged to notify the company of its intentions no later than 30 days in advance. before the date of purchase. Now there is no such restriction, but a person who has acquired more than 30% of the voting shares of a joint stock company is obliged to send an offer to the remaining shareholders to buy out the corresponding shares from them. securities indicating the purchase price. In this case, the acquisition price cannot be lower than the average market price for the last six months or the market value determined by an independent appraiser. A similar procedure is repeated when a shareholder acquires over 50 and 75% total number voting shares.

In addition, in accordance with Art. 6 of the same law, a joint stock company is obliged to announce that it has already acquired 20% of the voting shares of another company.

In addition to acquiring a controlling stake, other ways to establish control are possible.

• 1. Sometimes the authorized capital of an enterprise is quite small, and its financing is carried out through loans received from various creditors. In this case, it is more expedient to simply buy out the enterprise’s debts from creditors and thereby gain influence on the affairs of the enterprise. In the current situation in Russia, this method is used quite often.
• 2. It is often much easier to establish control over a company by issuing new shares than by purchasing existing ones. According to the laws of many countries, in this case there is no need to make a public takeover offer, which inevitably leads to an increase in the market price of shares. Naturally, old shareholders may be against reducing their share in the authorized capital. In many countries, the rights of old shareholders are legally protected by the so-called pre-emptive right (we will talk about this in due course). There is such a right in Russia, but it is often circumvented.
• 3. Buying a controlling stake is a rather expensive operation. In addition, when purchasing the assets of an enterprise, the buyer simultaneously purchases its liabilities. Sometimes, in order to achieve its goals, the aggressor enterprise does not necessarily have to win the right to appoint its leadership. You can achieve your goal simply by threatening to acquire a controlling stake.

For example, enterprise “A”, dissatisfied that enterprise “B” is going to open its branch in point “C” (or, conversely, does not want to organize a joint venture with “A”, etc.), begins to take steps to acquire a large block of shares of the enterprise

“B”, so that, having taken possession of it, change the leadership and, under the new leadership, achieve the achievement of their goals. When the process has already progressed sufficiently, “A” turns to the management of “B” with a proposal: you do not open your own branch, and we will leave you alone, besides... (the options can be very different). Management “B” agrees and continues to lead.

Under what conditions are such transactions possible? It is clear that the main one is the reality of the threat. The threat is real when the aggressor can really quickly and relatively cheaply form a controlling stake. And this is possible primarily in relation to open public joint stock companies, whose shares are traded on the stock exchange and the number of shareholders is thousands and tens of thousands.

Yulia Khachaturyan,

NIKA, RISK PLAN

"HR service and personnel management of the enterprise", 2006.

Let's imagine the following situation. One day, in the brilliant mind of the head of an organization, or the HR director, or some other top manager, an amazing idea is born: to change the structure of the entire organization. Of course, the bold implementation of a grand vision will lead to a dramatic increase in the efficiency of the entire company. The previous, unproductively working marketing and advertising departments, having become a single promotion department, will be able to achieve unheard of results in the new “role”... At the same time, each of the employees of the reformed departments for some reason does not share the rosy expectations of management and thinks in horror about which negative consequences such upheavals can directly affect him... And the head of the personnel department is thinking about how to reflect all these grandiose changes in documents, and what articles of laws should be used to guide their implementation? Sounds painfully familiar? Then this article is for you...

“Types” of changes in the structure of enterprises Changes in the structure of an enterprise, as a rule, appear either in the form of: - merger of relevant divisions (see Example 1) or - their separation (see Example 2) However, sometimes reorganization is aimed at reassigning previous departments to other managers ( see Example 3).

Example 2 One structural unit involved in promotion is divided into two independent ones.

Example 3. A large holding (one legal entity) was formed from the once independent organizations. Before the merger, each of them had its own director and heads of structural divisions who reported directly to him. However, after the creation of a single organization, this state of affairs naturally ceased to suit the owner. It was necessary to create a common control center for previously independent legal entities. On the other hand, it was desirable to leave a significant share of competence to the old directors, so that they could effectively exercise leadership locally. In this regard, the following decision was made. Structural divisions directly involved in production (shops, which together included more than 70% of the employees of the previous legal entity) were left under the subordination of the previous directors. The office personnel of each of the old organizations (accounting, personnel department, programmers) were made part of the corresponding department, controlled from the center. So, for example, previously independent 6 HR departments of 6 enterprises became a single HR department and reported to one person. The last option for changing the structure of an organization is the most complex and its consideration deserves an independent series of articles, so in this one we will focus on the first two, the most common.

Two common methods

So, in practice, there are two most common ways to carry out the merger and division of departments: - we will conventionally call one “simple and convenient”; - the other is “cumbersome and absolutely correct.” Supporters of the first method put forward arguments against the second, and the second, respectively, against the first. At the same time, each of the opponents fights with enviable zeal for their own “brilliant” method of completing this procedure. However, we will name the “pros” and “cons” of each option later, when, in fact, we describe them. In addition, we will talk about the application of each method, both regarding the procedure for merging structural divisions and the procedure for their separation. We combine structural divisions Let's first imagine a situation where two previously independent departments (for example, advertising and marketing) are merged. Ultimately, the enormous changes associated with the global merger of structural divisions must be reflected in the staffing table, from which independent advertising and marketing departments will be excluded and in which an independent promotion department will appear. Innovations related to each specific employee will appear in the form:

- an additional agreement to the employment contract and - an order issued on its basis.

However, as mentioned above, you can go with two absolutely in various ways to this final result in the form of: - a new staffing table (in which there is a promotion department, but no advertising and marketing departments); — additional agreements to the employment contracts of all employees of previous departments; — orders for transfer to a new, hitherto non-existent structural unit.

Method one: “Simple and convenient” -

Step 1: create a new structural unit, but do not destroy the two old ones. We, that is, representatives of the employer, first come to the advertising department, then to the marketing department (or we call the employees of these structural divisions one by one to the personnel department) and report on the joyful event awaiting the employees. Having made sure that no one is against these wonderful innovations (even the head of the advertising department, who threw something heavy and similar to a hole punch at us), we begin to prepare a new staffing table. At the same time, we are fully aware that the organization will live in accordance with it for one or two days. Thanks to this document, a new structural unit (promotion department) will appear, which will practically duplicate all those positions that exist in the advertising and marketing departments (with the exception of the positions of managers, because there can only be one head of the department). We will also transfer the old advertising and marketing departments with all employees to a new staffing table, which we will approve by order of the head of the organization. (For a sample of the initial staffing table, see Example 9, possible new ones in Examples 10-11). If making a new staffing table is burdensome (for example, the organization employs several thousand people), you can simply issue an order to amend this document. —

Step 2: transfer all employees to a new structural unit. — Ordinary employees: After this, we take an application from each of the ordinary employees with a request to transfer them to the same positions that they, in principle, previously occupied, but in a new department. Then we conclude additional agreements to the employment contract with each of the ordinary workers. The corresponding clause of the additional agreement to the employment contract may sound as follows.

Example 4. 1.1. Add clause 3.1. The employment contract contains the following provisions. From January 11, 2006, the employee is accepted into the following structural unit: promotion department.

Based on these changes, we issue transfer orders (see Example 12).

— Heads of departments: As for the heads of departments, the situation here is more complicated. It is clear that the final staffing table does not include either the position of head of the advertising department or the position of head of the marketing department. In this case, in any case, there will be a position of the head of the promotion department. As a rule, in practice, actions occur according to two algorithms. — First: the staffing table provides for the position of head of the promotion department and deputy of the promotion department. (The situation corresponds to the staffing table presented in Example 10). The position of department head is offered to one of the former department heads, while the other is offered the position of his deputy. —

Second. The positions of a department head and two deputies are being created: for marketing and advertising. (The situation corresponds to the staffing table presented in Example 11). Former department heads take the place of deputies, and the role of department head is offered to a third party. For clarity, let us present these movements in the form of diagrams.

Scheme 1 corresponds to the first algorithm and scheme 2 corresponds to the second.

Diagram 1 Previously held position Position to be held by the employee Head of the Marketing Department Head of the Promotion Department Head of the Advertising Department Deputy Head of the Promotion Department

Scheme 2 Previously held position Position to be held by the employee Head of the promotion department Head of the marketing department Deputy head of the marketing promotion department Head of the advertising department Deputy head of the advertising promotion department However, in any case, the head of the department must write an application requesting a transfer for his intended position. After which you should make an amendment to the employment contract and issue a transfer order. Please note that if, when drawing up an additional agreement with the main employees, only the clause on the name of the structural unit will need to be “adjusted”, then when the bosses are “moved”, the names of positions, as well as labor functions, will additionally change. If one of the former bosses takes the place of the head of the entire department, then, most likely, his salary will also increase. (Samples of relevant fragments of an additional agreement with the former head of the marketing department in accordance with the situation according to scheme 1, see Examples 5-6; fragments of agreements in accordance with the situation according to scheme 2, see Examples 7-8).

Example 5. 1.1. Add clause 3.1. the employment contract with the following provision.

From January 11, 2006, the employee is transferred to the following structural unit: promotion department by the head of the promotion department. 1.2.Add clause 3.2. the employment contract with the following provision.

Add the following provision to clause 3.3 of the employment contract.

Since January 11, 2006, the employee has been performing duties in accordance with the job description of the head of the promotion department, approved on January 11, 2006 by the head of the organization.

Example 6. 1.1. Add clause 3.1. the employment contract with the following provision. From January 11, 2006, the employee is transferred to the following structural unit: promotion department as deputy head of the promotion department. 1.2. Add the following provision to clause 3.3 of the employment contract. Since January 11, 2006, the employee has been performing duties in accordance with the job description of the deputy head of the promotion department, approved on January 11, 2006 by the head of the organization.

Example 7. 1.1. Add clause 3.1. the employment contract with the following provision. From January 11, 2006, the employee is transferred to the following structural unit: promotion department as deputy head of the promotion department for marketing. 1.2.Add clause 3.3 of the employment contract with the following provision. Since January 11, 2006, the employee has been performing duties in accordance with the job description of the deputy head of the marketing promotion department, approved on January 11, 2006 by the head of the organization.

Example 8. 1.1. Add clause 3.1. the employment contract with the following provision. From January 11, 2006, the employee is transferred to the following structural unit: promotion department as deputy head of the advertising promotion department. 1.2.Add clause 3.3 of the employment contract with the following provision. Since January 11, 2006, the employee has been performing duties in accordance with the job description of the deputy head of the advertising promotion department, approved on January 11, 2006 by the head of the organization. — Step 3: destroy the old structural unit. So, after we have completed all the steps described above, the following picture emerges. In our new staffing table there are two old structural divisions in which not a single position is filled. Accordingly, the advertising and marketing departments are no longer needed; we can simply liquidate them. We publish a new staffing table (see Example 13-14), approve it by order of the manager, and the procedure for merging departments is completed.

So, simple and in a convenient way in one or two days we achieved the desired result:

— created a new staffing table that reflects the real structure of the enterprise;

— concluded additional agreements to employment contracts with all employees, which reflected new working conditions;

— issued orders to transfer employees to the promotion department. In a cumbersome and correct way, we will arrive at the same result no earlier than in two months...

Method two: “Bulky and absolutely correct”

Topic: Consulting on personnel issues

What guarantees are provided by current legislation for the heads of two departments during reorganization? internal structure institutions, as well as for ordinary specialists, if two departments are merged? V.A. Kharitonov, Bryansk

Carrying out documentation The procedure for merging two departments in the second way is preceded by an analysis of this situation from a legal point of view. So, at one time an employment contract was concluded with each of the department employees, which spelled out the conditions to which he agreed. It is advisable to divide them into two groups:

— about the employee’s labor function;

— other conditions:

— job title,

- structural unit,

- wages, etc.

Ordinary employees

For all ordinary employees, in the event of a merger of departments, most likely, only one essential working condition will change - the structural unit. Since the labor function of the employees remains unchanged, from a legal point of view there is no talk of any reduction in their positions. We only need to change the clause on the name of the structural unit in the contract with each of the employees. We can do this without their consent, guided by Article 73 of the Labor Code of the Russian Federation.

Fragment of the document Labor Code of the Russian Federation.

Article 73 “Changing the essential terms of the employment contract.” Parts 1-4, 8. For reasons related to changes in organizational or technological working conditions, it is allowed to change the essential terms of the employment contract determined by the parties at the initiative of the employer when the employee continues to work without changing the job function. The employee must be notified by the employer in writing of the introduction of these changes no later than two months before their introduction, unless otherwise provided by this Code or otherwise federal law. If the employee does not agree to continue working under the new conditions, then the employer is obliged to offer him in writing another job available in the organization that corresponds to his qualifications and state of health, and in the absence of such work, a vacant lower position or lower paid job that the employee can perform with taking into account his qualifications and health status. In the absence of the specified work, as well as in the event of the employee’s refusal of the offered work, the employment contract is terminated in accordance with paragraph 7 of Article 77 of this Code. If the circumstances specified in part one of this article may lead to mass dismissal of workers, the employer, in order to preserve jobs, has the right, taking into account the opinion of the elected trade union body of this organization, to introduce a part-time working regime for a period of up to six months. Changes to the essential terms of the employment contract cannot be introduced that worsen the employee’s position compared to the conditions collective agreement, agreements.

Accordingly, two months before the start of restructuring, we must prepare notifications about the upcoming change in working conditions for each employee (see Example 15) and familiarize employees with them. They periodically need to be offered vacant positions that appear in the organization. Two months later, we prepare a draft of a new staffing table and approve it with the head of the organization. If, after sixty days, a specific ordinary employee agrees to these innovations, then we sign an additional agreement with him to the employment contract and issue a transfer order. If the employee proudly refuses, then we dismiss him under paragraph 7 of Article 77 of the Labor Code of the Russian Federation, that is, due to refusal to continue work due to a change in the essential terms of the employment contract. Heads of departments As for former heads of departments, the situation here is more complicated. It is assumed that after they occupy the new position “reserved” for each of them, not only such terms of the contract as the name of the department, positions and salaries, but also labor functions. We cannot unilaterally transform one employee’s labor function into another, using Article 73 of the Labor Code of the Russian Federation. In fact, we are reducing the positions of department heads. And, accordingly, we must notify the persons occupying them, in accordance with Article 180 of the Labor Code of the Russian Federation, two months in advance about this unfortunate event. (For a sample layoff notice, see Example 16). At the same time, we, guided by the requirement of Article 180 of the Labor Code of the Russian Federation, will have to periodically offer each of the employees other vacant positions existing in the organization within two months. After the new staffing table is approved two months later, we propose that department heads be transferred to the appropriate positions. If the bosses agree, we make additional agreements to the employment contracts and issue appropriate transfer orders. If employees refuse to transfer, they will be dismissed under paragraph 2 of Article 81 of the Labor Code of the Russian Federation (reduction in the number or staff of employees). At the same time, they must be paid appropriate monetary compensation. Fragment of the document Labor Code of the Russian Federation. Article 178 “Severance pay”. Upon termination of an employment contract due to the liquidation of an organization (clause 1 of Article 81) or a reduction in the number or staff of the organization's employees (clause 2 of Article 81), the dismissed employee is paid severance pay in the amount of average monthly earnings, and he is also retained the average monthly earnings for the period of employment , but not more than two months from the date of dismissal (including severance pay). IN exceptional cases the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal by decision of the employment service body, provided that within two weeks after the dismissal the employee applied to this body and was not employed by it.

Algorithm of actions

Let’s systematize what has been said step by step:

Step 1: we notify ordinary employees of changes in the essential terms of the employment contract two months in advance.

Step 2: notify department heads about the reduction of their positions.

Step 3: two months later, we prepare a draft of a new staffing table and approve it with the head of the organization.

Step 4: we transfer ordinary employees to vacant positions in the new staffing table if the employees agree.

If they refuse, we dismiss them in accordance with paragraph 7 of Article 77 of the Labor Code of the Russian Federation.

Step 5: we transfer the heads of departments to the positions “reserved” for them, if the former heads of departments agree to this, and if they refuse, we terminate the employment contract with them in accordance with paragraph 2 of Article 81 of the Labor Code of the Russian Federation. The merger of two departments into one is completed. Separating structural divisions Now let's consider a diametrically opposite situation: one promotion department was divided into two departments.

Method one: “Simple and convenient” Separation of departments in a simple and convenient way is carried out practically according to the same scheme as their merger. That is, we:

Step 1. We create two new structural divisions, but do not destroy the old one. We approve a new staffing table, which includes three structural divisions: the marketing department, the advertising department, and the promotion department.

Step 2. We transfer all employees to the new structural unit. — Ordinary employees: We take applications from ordinary employees for transfer to the marketing and advertising departments. After this, we conclude additional agreements to employment contracts with these employees, and on their basis we issue transfer orders. — Head of department: It should be taken into account that former boss In any case, the promotion department will have to be demoted. And he will become either the head of the advertising department or the head of the marketing department. For the position of head of the second department, you will have to look for a worthy candidate. Accordingly, the head of the promotion department must write a statement with a request to translate it, for example, by the head of the advertising department. After which you should make an amendment to the employment contract and issue a transfer order. —

Step 3. Destroy the old structural unit. After this, an order should be issued approving the staffing table, from which the promotion department will disappear and only the advertising and marketing departments will remain. Method two: “Bulky and absolutely correct”

Ordinary employees

For all ordinary employees, in the case of division of departments, as well as in the case of their merger, usually only the structural unit changes. Accordingly, guided by Article 73 of the Labor Code of the Russian Federation, we notify employees of the change after two months of its name. Then, two months later, we prepare a draft of a new staffing table and approve it by the head of the organization. If we receive the consent of a specific employee to introduce innovations, we sign an additional agreement with him to the employment contract and issue an order for transfer, and if he refuses, we fire him. Heads of departments The head of a department should be notified two months before the division of departments about the reduction of his position. After the new staffing table is approved 60 days later, we offer him to take the place of head of one of the departments. If we agree, we make an additional agreement to the employment contract and issue a transfer order. If the boss refuses, the employment contract will be terminated under paragraph 2 of Article 81 of the Labor Code of the Russian Federation (reduction in the number or staff of employees).

"Pros" and "cons" of each method

"Pros" and "cons" of the first method

"Cons"

IN conflict situation a militant employee can prove to the appropriate authority that, from a legal point of view, we committed actions that were not entirely correct:

— they hid the staff reductions, because in fact the positions of department heads are being eliminated. Accordingly, we did not warn managers about the upcoming reduction two months in advance and did not provide them with other guarantees and compensation required by law. — they tried to camouflage changes in the essential terms of the employment contract of ordinary employees and arbitrarily deprived them of the right to learn in advance about upcoming innovations.

“Pros” The procedure for merging and splitting departments is carried out as quickly as possible short terms, and designing it this way is very convenient. “Pros” and “cons” of the second method “Cons” Carrying out the procedure for dividing or merging departments in this way takes a lot of time and effort. “Pros” From a legal point of view, we did everything correctly; we are not afraid of inspections or legal proceedings with one or more offended employees.

Example 15. LIMITED LIABILITY COMPANY "KRAKI"

NOTICE of changes in the essential terms of the employment contract

Dear Shabanov Alexander Alexandrovich! In accordance with Article 73 of the Labor Code of the Russian Federation, we notify you that from March 12, 2006, due to the change organizational structure enterprise terms of the employment contract with you dated March 11, 2001 No. 2 o structural unit, in which you work, will be changed to the condition of performing work in the promotion department. If you refuse to continue working in connection with a change in this condition of the employment contract, you will be dismissed under paragraph 7 of Article 77 of the Labor Code of the Russian Federation.

General Director signature I.V. Pashentsev I read the notification on January 11, 2006, signature A.A. Shabanov

Example 16. LIMITED LIABILITY COMPANY "KRAKI"

NOTICE about layoffs Dear Prudnikov Eduard Leonidovich!

In accordance with Part 2 of Article 180 of the Labor Code of the Russian Federation, we notify you that on March 12, 2006, your position will be reduced.

General Director signature I.V. Pashentsev