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Many companies have to adjust their structures and departmental settings because of changes in the markets or industries, so their employment relationships with their employees need to be changed accordingly. In light of this, the question arises, whether a company can negotiate with their employees to amend the employment contract? What options does the company have if an employee does not agree to desired changes? To answer those questions take a look at the case below.

很多公司因为公司所处市场及行业的变化，会对公司架构及部门设置做出调整，因此与员工的劳动关系也将因此需要变更。那么问题来了， 这种情况下公司能否与员工协商变更合同？如果员工不同意变更合同，公司又将如何处理？请看下面的案例。

Lily joined the business department of a company (hereinafter “Company”) in November 2012 and signed an open-ended employment contract with the Company. In March 2018, the Company issued a notice of termination of the contract, stating that the Company is planning to restructure its business and organizational structure and is negotiating with Lily to transfer her to the marketing department, however Lily refused to work there. As a consequence, the Company terminated the employment contract with Lily in accordance with the law.

Lily2012年11月入职某公司市场部，双方签订了无固定期限劳动合同。 2018年3月公司作出解除劳动合同通知书，以公司业务及组织机构调整，拟将Lily岗位变更为广告管理部而Lily拒绝为由，依法与Lily解除劳动合同。

Lily filed a labor arbitration on the grounds that the Company had illegally terminated the employment contract. She demanded that the Company pay her damages for illegally terminating the contract, which is two months' wages for each year she was working for the Company. The final judgement was rendered by the appellate court in October 2019, after a labor arbitration and a first instance trial. The appellate court decided that the Company could terminate the employment contract legally under such circumstances and all it had to pay was severance, which was a one month's salary per each year of employment.

Lily以公司非法解除劳动合同为由提出劳动仲裁，要求公司按每工作满一年支付二个月工资的标准进行赔偿。此案经仲裁、一审及二审，于2019年10月由二审法院做出最终判决，认为这种情况下公司可以与Lily解除劳动合同，并且只需要按每工作满一年支付一个月工资的标准支付相应补偿。

To help our readers better understand applicable laws, we are sharing the Court's views as follows:
为帮助大家更好地理解相关法律，现将法院观点分享如下：

The court of first instance held that: an objective situation generally refers to a situation which can’t be controlled by either parties. Major changes in the Company's own economic situation such as adjusting operational procedures and strategic adjustments in order to adapt to changing market conditions should fall into the category of changes in an objective economic situation.

In this case, the Company’s adjustment over relevant departments and positions to adapt to the market condition and business operation is kind of a major change in objective economic conditions, but also belongs to the scope of internal adjustment. In addition, the reduction plan of employees has been filed with the local Human Resources and Social Security Bureau, which was in line with procedural labor law requirements.

Lily's position was abolished. The Company tried to negotiate with Lily about the adjustment of her position, however Lily wanted to continue working in her previous position. As a result, the Company had to terminate the employment relationship with Lily and paid compensation in line with the law. The court doesn’t think the Company had infringed Lily's legitimate rights and interests by doing so.

一审法院认为：客观情况一般是指不以双方主观意志为转移的情况。因用人单位自身经济情况发生重大变化、或为适应市场变化采取的调整产业结构、战略调整等经济行为均应属于客观经济情况变化的范畴。

本案中，公司为了适应市场形势、根据经营情况对相关部门和职位进行调整等行为属于因客观经济情况发生重大变化，亦属于企业内部自行调整的范畴，且裁减人员的相关方案已向人力资源和社会保障局备案，在程序上也符合劳动法的要求。

Lily所在岗位裁撤，公司就工作岗位变更与Lily进行了协商，Lily却要求继续在原岗位工作。公司以双方协商未果，与Lily解除劳动关系，并支付了法定补偿，并未侵害Lily的合法权益。

The appellate court upheld the opinion of the court of first instance and further held that: the employment contract signed by the Company and Lily expressly specified that an employee's job and position could be adjusted according to actual needs. The Company’s adjustment of Lily's position according to the change in objective business conditions is not only an act of employment autonomy, but also is in line with the agreement of the employment contract between the two parties. There is no possibility for the employment to continue, as Lily expressly rejected the Company's transfer decision. Hence, the Company’s decision to terminate the labor relationship is legal and valid.

二审法院支持了一审法院的观点，并进一步认为，因公司与Lily所签劳动合同明确约定可根据工作需要调整劳动者工作岗位，公司根据客观经营情况的变化调整Lily的岗位属于用工自主行为，也符合双方劳动合同的约定。Lily明确拒绝公司的调岗决定，致使双方的劳动合同已无继续履行的可能性， 因此公司与Lily解除劳动关系的行为合法有效。

Related provisions of the Labor Contract Law of the People's Republic of China

Article 40 In the case of any of the following circumstances, the company may discharge the labor contract after it notifies the employee himself in writing 30 days in advance or after it pays the employee an extra month's salary:

…

(3) The objective circumstance has altered significantly, on which the conclusion of the labor contract is based, which results in that the labor contract is unable to be performed. And no agreement concerning the modification of contents of the labor contract is reached after consultations between the employer and the worker.

Article 41 In the case of any of the following circumstances, if the employer needs to cut down above 20 workers, or if it needs to cut down less than 20 workers but which accounts for 10 percent or above of the total number of the workers, the employer shall make an explanation to the labor union or to all workers 30 days in advance. After it has solicited the opinions of the labor union or of the workers, it may have the reduction after reporting the plan to labor administrative department:

(1) It is under revitalization in accordance with the Enterprise Bankruptcy Law;

(2) Serious problems in production and business operation occurs;

(3) The enterprise has changed products, made significant technological renovation or adjusted the form of business operation, and it still needs to have reduction after the labor contract is altered; or

(4) The objective economic circumstance, on which the labor contract is based, has altered significantly and it is unable to perform the labor contract.

《中华人民共和国劳动合同法》相关规定：

第四十条　有下列情形之一的，用人单位提前三十日以书面形式通知劳动者本人或者额外支付劳动者一个月工资后，可以解除劳动合同：

             ...（三）劳动合同订立时所依据的客观情况发生重大变化，致使劳动合同无法履行，经用人单位与劳动者协商，未能就变更劳动合同内容达成协议的。

第四十一条　有下列情形之一，需要裁减人员二十人以上或者裁减不足二十人但占企业职工总数百分之十以上的，用人单位提前三十日向工会或者全体职工说明情况，听取工会或者职工的意见后，裁减人员方案经向劳动行政部门报告，可以裁减人员：
　　（一）依照企业破产法规定进行重整的；
　　（二）生产经营发生严重困难的；
　　（三）企业转产、重大技术革新或者经营方式调整，经变更劳动合同后，仍需裁减人员的；
　　（四）其他因劳动合同订立时所依据的客观经济情况发生重大变化，致使劳动合同无法履行的。

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