As the most significant type of change in an employment contract in accordance with Art. 72" of the Labor Code of the Russian Federation means a permanent or temporary change in the labor function of an employee, a structural unit in which the employee worked (if it was specified in the employment contract) while continuing to work for the same employer, as well as a transfer to another location together with the employer. This is not a change. of an employment contract, the transfer of an employee, at his request or with his consent, to another employer for a permanent job, since in accordance with Part 2 of Article 72 of the Labor Code of the Russian Federation, the employment contract terminates.
Labor legislation (Article 60 of the Labor Code of the Russian Federation) prohibits the employer from requiring the employee to perform work not stipulated by the employment contract, therefore, as a rule, transfers are allowed only with the consent of the employee, except in cases established by law.
It is necessary to distinguish from transfer to another job moving employee from the same employer to another workplace, to another structural unit in the same area, assignment of work on another mechanism or unit. The transfer does not require the employee's consent. It will take place if the parties, when concluding an employment contract, did not specifically stipulate a workplace (mechanism, unit), or structural unit as conditions of the employment contract.
The legislator distinguishes between temporary and permanent transfers to another job depending on their timing.
At temporary transfer for other work, the parties to the corresponding transaction give rise to two interrelated consequences: the original (main) obligation is suspended for a certain period with the emergence of a new (temporary) obligation. Upon expiration of the appropriate period, the temporary obligation is terminated, and the parties resume the exercise of rights and obligations under the original legal relationship. This type of transfer can be carried out by agreement of the parties, at the initiative of the employer, and in some cases at the initiative of the employee.
by written agreement parties are allowed for a period of up to one year. If the parties agreed on a transfer in order to replace a temporarily absent employee, whose job remains in accordance with the law (for example, in connection with parental leave), the duration of the transfer will be determined upon the fact that the replaced employee returns to work. If, after the expiration of the temporary transfer, the employee continues to work, the transfer is considered permanent. With such a temporary transfer, the right of the absent employee to resume the work previously performed must be respected.
The legislator provides a number of grounds for the temporary transfer of an employee to another job at the initiative of the employer, which are divided into three groups. The first group of grounds includes circumstances related to extraordinary(natural or man-made disasters, accidents, other emergency situations that threaten the life or normal living conditions of the entire population or part of it), in the presence of which the employer has the right to unilaterally transfer the employee without his consent for another job, including without taking into account specialty or qualifications, for a period of up to one month to prevent relevant circumstances or eliminate their consequences.
Another group of bases is associated with business needs of the employer(in cases of downtime, the need to prevent destruction or damage to the employer’s property, replacing a temporarily absent employee). The procedure for carrying out such a temporary transfer depends on the reason that gave rise to the production need. So, if it is caused by the previously mentioned extraordinary circumstances (for example, downtime due to flooding of production premises due to flooding), then a temporary transfer is allowed without the employee's consent for up to one month. However, if the temporary work requires lower qualifications, the employer is obliged to obtain the employee’s written consent to such a transfer. If production necessity is caused by other reasons, temporary transfer is permitted in the general manner by agreement of the parties.
The third group of grounds includes temporary transfers of an employee to another job in connection with a medical report (Article 73 of the Labor Code of the Russian Federation). If the conclusion of a medical and social examination institution establishes that the employee needs a temporary transfer to another job for a certain period (but not more than four months in a row), and the employee refuses the transfer or the employer does not have a suitable job, then the employee for the entire period , specified in the conclusion, is subject to suspension from work.
Temporary transfer to another job should be distinguished from business trip. Firstly, a business trip is a trip by an employee by order of the employer for a certain period of time to carry out an official assignment outside the place of permanent work (Article 166 of the Labor Code of the Russian Federation). It is mandatory for the employee, and an unreasonable refusal of it can be considered a violation of labor discipline, and a temporary transfer, as a general rule, is possible only with the consent of the employee (by agreement of the parties). Secondly, unlike a business trip, a temporary transfer can be carried out in the same area and place of work. Thirdly, a business trip involves the fulfillment of a specific official assignment, and not the assignment of any other duties. In turn, a temporary transfer to another locality or to another place of work (including when the employee’s consent is not required) means that he must regularly perform a labor function during the entire period of transfer during the working hours established for him. Fourthly, in the case of a business trip, the provisions of local regulations of the organization where the official assignment is carried out are not applied to the employee, unless otherwise provided by local regulations or by order of the employer who sent him. In the case of a temporary transfer, local regulations apply to the employee in the general manner.
Permanent translation for another job, as a rule, is carried out by agreement of the parties to the employment contract. Motives for permanent transfer can be: promotion at work at the request of the employee; the employer's need to strengthen the department's staff; assessment of the employee’s professional achievements or, on the contrary, his insufficient qualifications; reduction in the employee’s ability to work; etc. In particular, if an employee, for health reasons, in accordance with the conclusion of a medical and social examination institution, needs to be permanently transferred to another job that is not contraindicated for him for health reasons, then the employer, if he has the appropriate job, is obliged to transfer the employee with his consent.
In the absence of such work or the employee’s refusal to transfer, the employment relationship is terminated.
Temporary transfer to another job at the initiative of the employee is an exception to the general rules and is provided by law as a guarantee primarily for pregnant women (Article 254 of the Labor Code of the Russian Federation), if, according to a medical report, continued work in certain production conditions may adversely affect the health of the mother or child. Such a transfer is carried out on the basis of a medical report at the request of a pregnant woman while maintaining the average salary. If the employer does not have a job suitable for a pregnant woman, she is released from work while maintaining the average wage for all working days missed due to this.
Sometimes an employee has to be transferred to another job for some time. Such a need can be caused by a number of reasons - medical indications, production needs, etc. However, not everything is so simple with the transfer procedure. For example, some people confuse a transfer with a transfer and do not formalize it properly or underpay wages when transferring to a lower-paid position. You will learn in what cases temporary transfers are possible, how to distinguish them from transfers, in what amount to pay the temporarily transferred employee and how to document all this by reading the article.
Instead of a preface
According to Art. 72.1 Labor Code of the Russian Federation transfer means a permanent or temporary change in the labor function of the employee and (or) the structural unit in which the employee works, while continuing to work for the same employer, as well as transfer to work in another location together with the employer.Please note that a change in a structural unit will be considered a transfer only if its name was fixed in the employment contract (for example, in the form of the phrase “The employee is hired as an accountant in the financial and economic department”).
Since today we are considering temporary transfers, it is worth noting that they can be carried out either with or without the employee’s consent.
Temporary transfer with the consent of the employee
To carry out a temporary transfer, an agreement must be concluded in writing. The employer first offers the employee a vacant position or a position where an absent employee needs to be replaced. Then, if agreed, an additional agreement is concluded on a temporary transfer to another job, position or to another structural unit.And first of all, let's talk about the timing of such a transfer. A temporary transfer to another job with the same employer is possible for a period of up to one year, and in the case where such a transfer is carried out to replace a temporarily absent employee, who, in accordance with the law, retains his place of work - until this employee returns to work.
Note that due to Part 4 Art. 72.1 Labor Code of the Russian Federation It is prohibited to transfer or relocate an employee to work that is contraindicated for him due to health reasons. That is, if there are no medical contraindications and the employee agrees, then he can be temporarily transferred to work even with harmful or dangerous working conditions.
When concluding a transfer agreement, fix in it the basis for the transfer, its duration, the employee’s new responsibilities, as well as other conditions that differ from those established by the employment contract.
Let's talk separately about the wording of the transfer deadline. If a temporary transfer is carried out to a vacant position, you can determine a specific end date for the transfer, and if to replace a temporarily absent employee, it is better to indicate the condition upon the occurrence of which the employee returns to his workplace, because the absent employee may return to work later (for example, when extending vacation or certificate of incapacity for work). For the latter case, the wording may be as follows: “This additional agreement is valid until the date of the leading specialist E. D. Gulkina’s return to work from maternity leave.”
Based on the agreement signed by the parties, a transfer order is issued in the unified form T-5 1] (T-5a). It is important to indicate in the “Type of transfer” line that the transfer is temporary. The employee must be familiarized with such an order against signature.
The next step in registering a temporary transfer will be to make an entry about it in section. III personal card “Hiring and transfers to another job” (form T-2 or T-2 GS (MS)).
But an entry about a temporary transfer is not made in the work book. This rule has been established Part 4 Art. 66 Labor Code of the Russian Federation And clause 4 of the Rules for maintaining and storing work books, according to which only entries about permanent transfers are made in the work book.
note
If an employee is transferred to another job or position, he must be familiarized with the job description and other local regulations relevant to the performance of this work. In addition, you may need to conduct safety training or enter into a liability agreement.
Note that the employer should control the end of the temporary transfer, since due to Part 1 Art. 72.2 Labor Code of the Russian Federation, if at the end of the transfer period the employee’s previous job is not provided, and he did not demand its provision and continues to work, then the condition on the temporary nature of the transfer loses force and the transfer is considered permanent. In this regard, the question arises: is it necessary to somehow formalize the provision of the previous job? Labor legislation does not contain requirements for processing the return of an employee. In the meantime, we recommend doing this. Usually, for this purpose, an order (instruction) is issued to terminate the performance of duties in a temporary position and return to the performance of duties in the main position. He might look like this.
State Autonomous Institution of the Arkhangelsk Region
"Sports Training Center"
Arkhangelsk
Due to the expiration of the temporary transfer period by agreement of the parties
I ORDER:
1. Olga Viktorovna Pshenitsyna, who temporarily, by agreement of the parties dated 04/04/2014 No. 2, held the position of deputy head of the sports teams support department, to begin work stipulated by the employment contract dated 06/12/2010 No. 10-06, as the chief specialist of the sports teams support department teams, since August 21, 2014
2. The accounting department will accrue O. V. Pshenitsyna’s wages in accordance with the staffing schedule for the position of chief specialist in the department for supporting sports teams.
Director Zlakov I. I. Zlakov
I have read the order. Pshenitsyna, 08/20/2014
It may happen that the main employee quits or the temporarily filled position is completely vacant, and the management of the organization, and even the temporary employee himself, is not against making the temporary transfer permanent. In this case, it is necessary to conclude another additional agreement, indicating in it that the temporary transfer made under the agreement from such and such a date is considered permanent. Based on the agreement signed by the parties, it is necessary to issue an order in any form, which also stipulates that the condition on the transfer period has become invalid.
Note that there is a nuance in this situation. When transforming a temporary transfer into a permanent one, it is necessary to make an entry in the work book. Moreover, the date of transfer will be considered the first day of the temporary transfer.
Example
By agreement of the parties, from February 3, 2014, the employee of the State Budgetary Institution was transferred to the position of foreman of the road maintenance section for six months. After this period, the parties signed an agreement that the transfer is considered permanent. How to make an entry in the work book?
| №
records | date | Information about hiring, transfer to another permanent job, qualifications, dismissal (indicating reasons and reference to the article, clause of the law) | Name, date and number of the document on the basis of which the entry was made | ||
| number | month | year | |||
| 1 | 2 | 3 | 4 | ||
| … | … | … | … | … | … |
| State budgetary institution | |||||
| Vladimir region "Management | |||||
| highways" | |||||
| 8 | 09 | 12 | 2012 | Hired as a leader | Order dated 12/09/2012 |
| specialist expert. | № 22 | ||||
| 9 | 03 | 02 | 2014 | Transferred to the position of chief | Order dated 02/03/2014 |
| work acceptance department | № 16* | ||||
| for repairs and maintenance | Order dated July 28, 2014 | ||||
| highways. | № 47** | ||||
*
Temporary transfer order.
**
An order to invalidate the condition on the temporary nature of the transfer.
Please note that if an employee does not start work under an employment contract, that is, wants to continue working in accordance with the order for a temporary transfer, the employer has the right to apply disciplinary measures to him: a reprimand, a reprimand, dismissal on appropriate grounds, for example, for absenteeism - pp. “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation.
Temporary transfer without employee consent
As we have already understood, as a general rule, a temporary transfer, as well as a transfer on a permanent basis, is made by agreement of the parties to the labor relationship. However, the Labor Code makes an exception for some cases. So, an employee can be transferred without his consent to work not stipulated by an employment contract with the same employer in order to prevent or eliminate the consequences:- natural or man-made disasters;
- industrial accident or accident at work;
- fire, flood, famine, earthquake, epidemic or epizootic;
- any exceptional cases threatening the life or normal living conditions of the entire population or part of it.
Transfer of an employee without his consent to work not stipulated by the employment contract with the same employer is also permitted in the following cases:
- downtime (temporary suspension of work for reasons of economic, technological, technical or organizational nature);
- the need to prevent destruction or damage to property;
- replacing a temporarily absent employee.
Plenum of the RF Armed Forces in Resolution No. 2
noted that if, when transferring to another job in case of downtime, the need
to prevent destruction or damage to property or to replace a temporarily absent employee, the employee will be required to perform work of a lower qualification, then such a transfer will take effect Part 3 Art. 72.2 Labor Code of the Russian Federation is possible only with the written consent of the employee.
The Labor Code does not limit the number of such transfers of an employee during a calendar year, since in these cases unforeseen and urgent work is performed. But if, due to emergency circumstances, it becomes necessary to transfer an employee for a period of more than one month, the transfer is still possible only with the consent of the employee.
We emphasize: if the employer cannot prove the existence of circumstances with which the law connects the possibility of a transfer without the employee’s consent, such a transfer will be considered illegal ( clause 17 of Resolution No. 2 ). Thus, T. has worked as a cardiovascular surgeon at the Pskov Regional Hospital since 1999. By order of the chief physician, he was temporarily transferred without his consent to the clinic of the regional hospital to the position of cardiovascular surgeon, citing the need to fill a vacant position and in order to prevent a threat to the life and health of the population. Believing the employer’s decision to be illegal, T. refused to perform his duties at the clinic, for which he was subjected to disciplinary action in the form of a reprimand. The court declared illegal both the order to impose a disciplinary sanction and the order of temporary transfer. The State Budgetary Institution of Health did not provide evidence of the existence of extraordinary circumstances that necessitated the temporary transfer of the employee without his consent to a job not stipulated by the employment contract. The translation was carried out under the pretext of production necessity in the absence of exceptional cases indicating the real need for such a translation, and therefore the specified translation is illegal (Appeal ruling of the Pskov Regional Court dated October 2, 2012 in case No. 33-1580).
note
Refusal to perform work during a transfer in case of emergency, carried out in compliance with the law, is recognized as a violation of labor discipline, and absenteeism is considered absenteeism ( clause 19 of Resolution No. 2 ). It should be taken into account that, due to para. 5 hours 1 tbsp. 219, part 7 art. 220 Labor Code of the Russian Federation an employee cannot be subject to disciplinary action for refusing to perform work if a danger to his life and health arises due to violation of labor protection requirements, except in cases provided for by federal laws, until such danger is eliminated or from performing heavy work and work with hazardous and ( or) dangerous working conditions not provided for in the employment contract. Since the Labor Code of the Russian Federation does not contain rules prohibiting an employee from exercising this right even when the performance of such work is caused by a transfer on the grounds specified in Art. 72.2 Labor Code of the Russian Federation, the employee’s refusal to temporarily transfer to another job for the above reasons is justified.
A temporary transfer without the employee’s consent must also be formalized. To do this, a transfer order is issued indicating the reasons (catastrophe, industrial accident, etc.). And of course, it is better to support such an order with relevant documents, otherwise the employee may refuse the transfer.
Translation or relocation?
Sometimes an employer confuses a temporary transfer with a relocation and, instead of drawing up an agreement and order for the transfer, issues a relocation order. Let us remember that due to Part 3 Art. 72.1 Labor Code of the Russian Federation moving from the same employer to another workplace, to another structural unit located in the same area, assignment of work on another mechanism or unit, unless this entails a change in the terms of the employment contract determined by the parties , does not require the employee's consent.Before moving, carefully check the terms of the employment contract - whether it indicates the workplace, structural unit, and whether the employee’s job function will change. Otherwise, labor disputes cannot be avoided. Thus, G., working at the State Unitary Enterprise as a senior accountant, was transferred to the position of accountant. The PMU believed that these positions had similar job functions. Considering the dispute about declaring the transfer order illegal, the court noted: from the employer’s order it follows that in fact there was not a transfer, but a transfer of G. to another position, which entailed a change in the employee’s labor function. These actions were carried out without the consent of G., therefore, the order to move is illegal ( Appeal ruling of the Yaroslavl Regional Court dated April 25, 2013 in case No. 33-2536/2013).
Remuneration for temporary transfer
For transfers made without the employee’s consent (in the cases mentioned in part 2, 3 tbsp. 72.2 Labor Code of the Russian Federation), wages are paid according to the work performed, but not lower than the average earnings for the previous job. That is, if the employee’s wages for the work performed are lower than his previous average earnings, then he is paid the previous average earnings, determined in the prescribed manner.
Well, if the salary for the new job exceeds the average salary of the employee, then he is given an additional payment up to the salary for the new job. Thus, the demands for recovery of lost wages were satisfied by the court: during the period of temporary transfer to another position, the plaintiff performed the duties of an employee of a higher position, therefore, the difference in salary is subject to recovery in his favor ( Ruling of the Perm Regional Court dated September 25, 2013 in case No. 33‑8092).
When a temporary transfer is carried out by agreement of the parties, wages are also determined by agreement of the parties, however, usually when transferring the employee, the salary of the new position is set. If he is transferred to a less qualified job, the parties can agree to maintain the previous salary or to assign an additional payment up to the previous salary.
Temporary transfer for medical reasons
As we found out, a temporary transfer is carried out with or without the employee’s consent. However, according to Art. 73 Labor Code of the Russian Federation the employer is obliged to transfer the employee to another job (position) if he needs it in accordance with a medical report. Moreover, other work should not be contraindicated for the employee due to health reasons.For your information
A medical report is issued in the manner established by Order of the Ministry of Health and Social Development of the Russian Federation dated May 2, 2012 No. 441 “On approval of the Procedure for issuing certificates and medical reports by medical organizations.” A certificate of temporary incapacity for work is not considered a medical report.
When receiving a medical report from an employee, first of all you need to pay attention to the transfer period indicated in the certificate, since the employer’s further actions depend on this.
If an employee is indicated for a temporary transfer to another job for a period of up to four months, the employer must offer him another job that is suitable for health reasons. In the absence of one or the employee’s refusal, the employer is obliged to suspend him from work while maintaining his place of work (position) for the entire period specified in the medical report. To do this, the employer issues an order in any form. The order should indicate the period for which the employee is suspended; if the period is still not specified, upon admission to work, an order should be issued on the employee’s admission.
If, in accordance with a medical report, an employee needs a temporary transfer to another job for a period of more than four months or a permanent transfer, then if he refuses the transfer or the employer does not have the corresponding job, the employment contract is terminated by clause 8, part 1, art. 77 Labor Code of the Russian Federation- the employee’s refusal to transfer to another job, necessary for him in accordance with the medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the employer’s lack of relevant work. Upon dismissal on this basis, the employee is paid severance pay in the amount of two weeks' average earnings ( Part 3 Art. 178 Labor Code of the Russian Federation).
For your information
According to Art. 254 Labor Code of the Russian Federation Pregnant women, in accordance with a medical report and at their request, are transferred to another job that excludes the impact of unfavorable production factors, while maintaining the average earnings for their previous job. Before being given another job, a pregnant woman is subject to release from work with the preservation of average earnings for all working days missed as a result at the expense of the employer. A similar guarantee is provided for women with children under the age of one and a half years.
Temporary transfer of an athlete
This is a special type of temporary transfer - it can be carried out to another employer. Yes, based on Art. 348.4 Labor Code of the Russian Federation in cases where the employer is not able to ensure the participation of an athlete in sports competitions, it is allowed, by agreement between employers, to temporarily transfer the athlete with his written consent to another employer for a period not exceeding one year. In this case, the employer at the place of temporary work enters into a fixed-term employment contract with the athlete in accordance with the requirements Art. 348.2 Labor Code of the Russian Federation.During the period of temporary transfer of the athlete to another employer, the validity of the initially concluded employment contract is suspended, but the validity period is not interrupted.
note
If an athlete, during a temporary transfer to another employer, wants to work part-time, permission for such work must be obtained both from the employer at the place of temporary work and from the employer with whom the employment contract was originally concluded ( part 2Art. 348.7 Labor Code of the Russian Federation).
In case of early termination of an employment contract concluded for the period of temporary transfer of an athlete to another employer, on any of the grounds provided for by the Labor Code of the Russian Federation, the initially concluded employment contract is valid in full from the next working day after the calendar date with which the termination of the employment contract concluded on period of temporary transfer.
If, after the expiration of the period of temporary transfer to another employer, the athlete continues to work for the employer at the place of temporary work and neither the athlete, nor the employer at the place of temporary work, nor the employer with whom the employment contract was originally concluded, demand termination of the employment contract concluded for the period of temporary transfer , and renewal of the initially concluded employment contract, then the latter is terminated and the validity of the employment contract concluded for the period of temporary transfer is extended for a period determined by agreement of the parties, and in the absence of such an agreement - for an indefinite period.
Finally
As you can see, there are plenty of types of temporary transfer and each has its own characteristics. Let us outline the main points again. Firstly, temporary transfers are carried out only within the organization (with the exception of athletes). Secondly, such a transfer is carried out with the consent of the employee. But the Labor Code of the Russian Federation establishes exceptions: the employer can make a temporary transfer for a period of up to one month in the event of preventing emergencies and disasters or eliminating their consequences. And thirdly, the remuneration of workers temporarily transferred without their consent cannot be lower than the average earnings for their previous job.
Approved by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1 “On approval of unified forms of primary accounting documentation for labor accounting and payment.”
Approved by Decree of the Government of the Russian Federation dated April 16, 2003 No. 225 “On work books”.
Changes and features of salary reporting in 2019. New in the calculation and taxation of wages and benefits.
An employee's absence from work or an empty vacancy adversely affects the production process. To prevent company employees from getting “lost” in the responsibilities of an empty position, a more suitable employee can be temporarily moved to it.
Labor legislation defines a temporary transfer as a change in an employee’s job function or structural unit for a certain period while continuing to work for the same employer, as well as a transfer to work in another location together with the organization. Paragraph 16 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 states that the structural divisions of an organization should be understood as its branches, representative offices, departments, workshops, sections, etc. And by another area - an area outside the administrative-territorial boundaries the corresponding locality. Meanwhile, an employee can be transferred to another structural unit only if it is specified in the employment contract.
Such a transfer is an effective way to fill a vacant position or temporarily absent employee.
Get consent
The temporary transfer of an employee occurs in accordance with the provisions of Article 72.2 of the Labor Code. The transfer can be carried out either with or without the employee’s consent.
However, in the latter case, the transfer can be made only if there have been natural or man-made disasters, industrial accidents, industrial accidents, fire, flood, famine, earthquake, epidemic (epizootic) and in any other cases that threaten life and normal life conditions of the entire population (part of it).
Also, the employer can carry out a temporary transfer without the will of the employee during downtime or the need to prevent destruction or damage to property. In this case, the transfer cannot be made to a job that requires lower qualifications, and the period of stay in the new position should not exceed one month.
In accordance with Part 4 of Article 72.1 of the Labor Code, it is prohibited to transfer an employee to a job that is contraindicated for him for health reasons. If there are no contraindications, then with his consent the employee can be transferred to work with harmful working conditions.
Features of temporary transfer
The employer almost always transfers an employee in its own interests. For example, increase productivity or temporarily replace an employee whose duties are necessary for the company.
The employee, in turn, during the transfer strives for career development and salary increases.
The employer is not obligated to replace a temporarily absent employee. This decision is made by the organization independently based on the needs of production. At the same time, the employee is not deprived of the opportunity to offer the employer to make a temporary transfer. For example, if the work responsibilities of an absent employee are performed by several people at once, which interferes with normal work.
Attention
If the employee has agreed to a temporary transfer and all the necessary documents have been completed, then the employee completely ceases to perform his duties and begins to work in another position.
One of the most important properties inherent in temporary transfer is its urgent nature. In accordance with Part 1 of Article 72.2 of the Labor Code, a temporary transfer is carried out for a period of up to one year. The legislators made the only exception for the transfer of an employee who will replace a temporarily absent employee (he retains his position) until he returns to work. The end of the transfer will be the date that precedes the day the main employee leaves.
The salary during transfer is established by agreement of the parties. Most often, the amount of payment is determined in accordance with the new position. However, when transferring to a less qualified job, the previous salary may be maintained or additional payment may be made.
If a temporary transfer was carried out without the employee’s consent, then wages must be paid no lower than the average earnings that the employee received in his previous position.
During a temporary transfer, the employer must comply with all formalities, since the employee’s job function, salary, often place of work, etc. change.
Paperwork
In most cases, the initiator of a temporary transfer is the employer. He must make an appropriate offer to the employee. This proposal can be made either in writing or orally.
It is more rational to submit the proposal in writing, since in the end it will be an official document.
When drawing up a proposal, it should indicate the new position (structural unit, location of the organization), the estimated period of transfer, the time during which the employer asks the employee to respond to the proposal.
There is no deadline for transmitting this document to the employee.
Consent or refusal is also formalized in writing in free form, in a separate document or in the proposal itself, if special columns were provided in it.
After receiving the employee’s consent to a temporary transfer, an additional agreement to the employment contract should be drawn up and signed. This document is drawn up in two copies and signed by both the employer and the employee. Each party is given a copy.
The additional agreement states:
- date and place of compilation;
- Name of the organization;
- an employee transferred to another job;
- employee's position;
- reason for transfer and position to be replaced;
- term of temporary transfer;
- documents that an employee must follow when performing new duties;
- salary amount;
- details of the parties.
The clause about the reason for the transfer may contain different wording. For example:
“Due to the temporary absence of chief accountant I.I. Ivanov due to being on annual paid leave, accountant P.P. Petrov is temporarily transferred to the position of chief accountant.”
You can also write the following: “Due to the lack of candidates for the vacant position of head of the legal department, lawyer S.S. is temporarily transferred to this position. Sidorov."
When drawing up a clause on the period of transfer when a vacant position is filled (temporary transfer is carried out for a period of up to one year), the following wording is used:
“The parties have determined that the additional agreement will expire on March 11, 2013” or “The parties have determined that the additional agreement will be valid until the vacant position is filled by a permanent employee.”
In the event that a temporarily absent employee is being replaced and the termination of the temporary transfer depends on the fact that the employee leaves (from annual paid or educational leave, return from a business trip, the end of a period of incapacity, etc.), then the agreement should indicate the condition upon the occurrence of which its action ceases. For example:
“The additional agreement is terminated, and employee E.E. Egorov returns to the position of Deputy Marketing Department until the date of departure of the Head of the Marketing Department S.S. Sidorova."
The reason for prescribing conditions rather than specific dates is, in most cases, the impossibility of knowing exactly the date of departure of the main employee. Thus, an employee can be found for a vacant position within a couple of months, and sometimes it takes more than six months. Meanwhile, an employee who was on a business trip may return from it earlier or, conversely, be delayed.
Next, the employer is obliged to issue an order to transfer the employee to another job, with which the employee must be familiarized with signature. In accordance with the Decree of the State Statistics Committee of Russia dated January 5, 2004 No. 1, the order is issued using unified forms No. T-5 or No. T-5a.
When filling out these forms, you should pay attention to the “Transfer to another job” option. In it, the “Date” column is filled in taking into account the wording about the transfer period. So, in the “from” field the date from which the employee begins to perform duties at the new job is entered, and in the “to” field there is either a dash (the end date is not defined) or the end date of the work period.
The next stage of registration is entering information into the employee’s personal card according to form No. T-2 approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1 (hereinafter referred to as the Goskomstat Resolution). The basis for making entries is an order to transfer to another job. In this case, it is necessary to fill out Section III “Hiring and transfers to another job.” The employee must be familiarized with each entry against signature.
Some experts are of the opinion that you should not fill out a personal card. However, in the section on filling out the order according to the specified form No. T-5, approved by the resolution of the State Statistics Committee, it is indicated that on the basis of the order (instruction) on transfer to another job, marks are also made in the employee’s personal card.
After completing all of the above documents, the employee must be familiarized with the job description (against signature). If working conditions require this, safety and labor protection instructions are also provided, a liability agreement is concluded, etc.
In accordance with the provisions of labor legislation and paragraph 4 of the Rules for maintaining and storing work books, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225 “On work books,” an entry about a temporary transfer is not made in the work book.
Old is better than new
When the main employee returns to work, the temporary replacement employee must return to his old duties. The Labor Code does not contain provisions on how to formalize the return of an employee to his old position. In order to avoid controversial situations, it is first necessary to send the employee a notification about the return to work of the main employee, which is drawn up in any form.
The notice may contain the following wording:
“On February 17, 2013, the head of the marketing department S.S. goes to work. Sidorova. In this regard, we are providing you with your previous job as deputy head of the department, whose duties you must begin on February 16, 2013.”
An order should also be issued to terminate temporary duties and return to the old position. It is drawn up in any form. Next, changes are made to section III of the employee’s personal card, that is, the return of the previous position is noted.
In any organization, whether large or small, there may be a need to temporarily transfer an employee to another job. How to properly formalize a transfer, in which cases the employee’s consent is required, in which it is not, what are the various consequences of incorrect translation and execution - we will look into this article.
Temporary transfer of an employee to another job should not be confused with part-time and part-time work. Let's first consider the difference between temporary transfer, part-time and part-time.
Part-time job
The concept of “part-time work” is contained in Art. 282 Labor Code of the Russian Federation. Part-time work is the performance by an employee of other paid work in his free time, and the number of such part-time jobs is not limited, the main thing is not to the detriment of the main job. Part-time work is reflected in the employment contract indicating that it is not the main one. There are two types of part-time work:
- internal part-time work is working for the same employer, in the same organization;
- external part-time work is working for other employers, in other organizations.
Combination
The concept of “combination” is contained in Art. 60.2 Labor Code of the Russian Federation. Combination is the performance by an employee of a larger amount of work, for example, fulfilling the duties of an absent employee. At the same time, the employee is not released from his main job and works part-time not in his free time, but during the main working hours. In other words, the employee is under a lot of workload. At the same time, the employee can perform additional work in both one and another profession. When combining, it is not necessary to conclude a new employment contract, unlike part-time work.
Temporary transfer to another job
Temporary transfer of an employee to another job occurs by agreement of the parties, concluded in writing. The concept of temporary transfer is contained in Art. 72.2 Labor Code of the Russian Federation. An employee may be temporarily transferred to another job with the same employer for a period of up to one year. A situation may arise that a transfer is required during the absence of another employee and its duration does not fit into one year, then the deadline will be set with the wording “until the main employee returns to work.”
If, after the expiration of the temporary transfer period, the employee does not demand to be returned to his previous job, the “old” job is not provided by the employer and the employee continues to work, then the transfer is automatically considered permanent.
That is, in contrast to part-time and part-time work, with a temporary transfer there is no additional burden beyond the main job (neither from your employer nor from another), it does not bring additional income to the employee and, accordingly, is often simply not interesting to him.
Let's consider three cases of temporary transfer: by agreement with the employer, by production necessity and forced transfer.
Temporary transfer by agreement of the parties
Temporary transfer by agreement of the parties is probably the simplest transfer. It seems like nothing complicated, but the employer needs to pay attention to the correct execution of such a transfer.
Let's consider a situation where the main employee either got sick, or went on a business trip for a couple of months, or went on a long vacation, or on a regular vacation, and there was a need to replace such an employee. Here it is possible to temporarily transfer an employee to an absentee position, since, for example, there are urgent unfinished issues, production will stop without signing any documents, or the employee has quit altogether, and while a replacement is found, certain work needs to be done.
Unlike part-time work, the temporary transfer of an employee is not displayed in the work book; everything happens solely by agreement of the parties. Although, on the other hand, it is necessary to display the temporary transfer in personnel documents, namely in the employee’s personal card in the T-2 form (clause 4 of the Rules for maintaining and storing work books, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225).
Before transferring a temporary employee to another job, you must inform him about this. For what period is not established by law, so there is no need to wait certain days or weeks. Such a message (notification) can be either in writing or orally, the main thing is to obtain the employee’s consent that he is not against it.
After obtaining consent, an additional agreement to the employment contract is concluded between the employer and the employee, in which it is necessary to indicate the basis for the transfer, for how long the transfer is being carried out, the level of wages, if it is subject to change, and working hours, if it is different from the present. The level of wages is also not determined by law and remains at the discretion of the employer and employee, i.e. by agreement.
It is advisable to clearly indicate the time of temporary transfer in such an additional agreement. For example, if this is a business trip for another employee or a production need, you can specify a certain date by which the transfer will be made; if before a certain event, this event is indicated, for example, an employee returning from vacation, accepting a new employee for this position, etc.
After completing the additional agreement, the manager issues an order for the temporary transfer of the employee in form No. T-5 or T-5a (these forms are approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1). In such an order, the employer should indicate the reasons for the temporary transfer, the work performed, the period and wages.
The employer should not forget that this order, like others, must be familiarized to the employee against signature. This familiarization and signing of the order by the employee will constitute the official receipt of his consent to the temporary transfer.
Employers should also take note of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, which clearly states that an employee can be temporarily transferred to another job only with the same employer with whom he has an employment relationship, and the work should not be contraindicated for health reasons. It is also stipulated that if, when transferring to another job in the event of downtime, the need to prevent destruction or damage to property, or replacing a temporarily absent employee, the employee will have to perform work of a lower qualification, then such a transfer by virtue of Part 3 of Art. 72.2 of the Labor Code of the Russian Federation is possible only with the written consent of the employee (clause 18 of this Resolution).
An error would also be the action of the employer if, for example, an employee was temporarily transferred to another job and then fired because the employer took another employee to take his previous place. Do not forget that during a temporary transfer, the employee retains his job and he can safely return after the agreed period. This situation was considered by the Constitutional Court of the Russian Federation, and this conclusion is contained in the Determination of the Constitutional Court of the Russian Federation dated December 24, 2013 No. 1912-O: “The court explained that Art. 72.2 of the Labor Code of the Russian Federation provides for cases of temporary transfer to another job, and by written agreement of the parties, an employee can replace a temporarily absent employee, who, in accordance with the law, retains his place of work until this employee returns to work. At the end of the transfer period, the employee is guaranteed the provision of the previous job, but if the employee is not provided with the previous job, he did not demand its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer loses force and the transfer is considered permanent. Such regulation also cannot be considered as violating the constitutional rights of citizens.”
Temporary transfer due to production needs
The concept of temporary transfer in case of production necessity is also contained in Art. 72.2 Labor Code of the Russian Federation. Two cases are considered:
- in the event of a natural or man-made disaster, industrial accident, industrial accident, fire, flood, famine, earthquake, epidemic or epizootic and in any exceptional cases threatening the life or normal living conditions of the entire population or part of it, the employee may be transferred without his consent for a period of up to one month to work not stipulated by the employment contract with the same employer to prevent these cases or eliminate their consequences;
- transfer of an employee without his consent for a period of up to one month to a job not stipulated by an employment contract with the same employer is also permitted in cases of downtime (temporary suspension of work for reasons of an economic, technological, technical or organizational nature), the need to prevent destruction or damage to property or temporary replacement absent employee, if downtime or the need to prevent destruction or damage to property or to replace a temporarily absent employee is caused by emergency circumstances.
It is also clarified that temporary transfer to a job requiring lower qualifications is permitted only with the written consent of the employee. And also in case of temporary transfers on the above grounds, the level of wages is determined according to the work performed, but not lower than the average earnings for the previous job.
When making such a transfer in the event of a production necessity, the employer should take into account that if disputes arise with employees, he will be required to prove the existence of circumstances that led to a temporary transfer due to these circumstances. This is directly stated in paragraph 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2.
Consider, for example, the following situation: some kind of disaster (accident) occurred at work, the employer issued an order for the temporary transfer of workers to eliminate the consequences of the disaster (accident) and did not indicate the reason for the transfer, and the employee did not agree to transfer, even temporarily, to work to eliminate a disaster (accident). Subsequently, due to the fact that the employee refused to temporarily transfer to another job, the employer fired him. Is it legal in this situation to dismiss an employee because of his refusal to temporarily transfer?
To resolve this issue, let us turn to the Determination of the Kemerovo Regional Court dated February 29, 2012 No. 33-1817: “...When considering the case, the court came to the conclusion that the employer had grounds for transferring the employee, that is, circumstances that jeopardize life and normal living conditions population or part thereof. The court included the deformation of the support, which can lead to rock collapse and death, as well as the piling of the conveyor belt, which can lead to smoke, fire and fire, as such circumstances.
However, when considering the case, the defendant (employer) did not provide evidence of the existence of extraordinary circumstances that necessitated the temporary transfer of the employee without consent to work not stipulated by the employment contract.
About the presence of any emergency circumstances that allow the transfer of workers in accordance with Part 2 of Art. 72.2 of the Labor Code of the Russian Federation, not mentioned in the order.
In addition, such involvement of an employee in work by the employer was not properly formalized, since the order applies to miners, and he worked as a mining machine operator, and therefore an order must be issued in form No. T-5 indicating the reason for his transfer. In this case, the basis for the transfer is of fundamental importance; the order must be supported by relevant documents, otherwise the employee may refuse the transfer.
Russian legislation does not establish an employee’s obligation to be at the workplace in the event of an illegal transfer. Under such circumstances, his refusal to transfer illegally could not be considered a violation of labor discipline, and therefore imposing a disciplinary sanction in the form of dismissal on him was illegal.
In paragraph 40 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” it is prescribed that when considering a case on the reinstatement of a person transferred to another job and dismissed for absenteeism due to refusal to begin it, the employer is obliged to provide evidence demonstrating the legality of the transfer itself (Articles 72.1, 72.2 of the Labor Code of the Russian Federation). If the transfer is declared illegal, dismissal for absenteeism cannot be considered justified and the employee must be reinstated at his previous job.
Taking into account the above circumstances of the case and the requirements of the law, what is significant for resolving the case is whether the employer complied with the law when transferring the employee to a job not stipulated by the employment contract.
Having established these circumstances, the court of first instance came to the conclusion that there was a case provided for in Part 2 of Art. 72.2 of the Labor Code of the Russian Federation, endangering the life or normal living conditions of the entire population or part of it, and therefore considered that the employer had the right to transfer workers without their consent to work not stipulated by the employment contract in order to prevent this incident.”
Based on the analysis of this case, employers should think about the fact that for a correct temporary transfer in case of production necessity, they should either obtain the employee’s consent to the temporary transfer, or independently issue an order on the temporary transfer of the employee/employees with a mandatory indication of the reason for such transfer. If the temporary transfer order is correctly executed, indicating the reason, timing or specific event, the employer will be able to avoid misunderstandings on the part of employees, as well as protect itself from litigation.
It should also be taken into account that the employee has the right to refuse the transfer if it is dangerous to his life and health. An employee’s unreasonable refusal of a temporary transfer in these situations will be regarded as a disciplinary offense, and absence from work will be regarded as absenteeism. This is clearly stated in paragraph 19 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation.”
However, by virtue of para. 5 hours 1 tbsp. 219, part 7 art. 220 of the Labor Code of the Russian Federation, an employee cannot be subject to disciplinary action for refusing to perform work if a danger to his life and health arises due to violation of labor protection requirements, except in cases established by federal laws, until such a danger is eliminated, or from performing work with hazardous and ( or) dangerous working conditions not provided for in the employment contract. Since the Labor Code of the Russian Federation does not contain rules prohibiting an employee from refusing to perform such work even when they are caused by a transfer on the above grounds, the employee’s refusal to temporarily transfer in accordance with Art. 72.2 of the Labor Code of the Russian Federation for the reasons mentioned above is justified.
Temporary transfer in the cases specified above is allowed only for a period of up to one month and should serve the purpose of preventing these cases or eliminating their consequences.
Conclusion
In conclusion, I would like to note that temporary transfer is carried out by agreement of the parties, but this is at best. Then you just need to formalize it correctly so that there are no future claims against each other.
When temporarily transferring an employee in case of production necessity, it is necessary to indicate in the order itself why such a temporary transfer is necessary. We should not forget that if the functions of the employment contract do not provide for the conditions for preventing the consequences of any disasters or the transfer to work is in no way related to the skills, knowledge, skills of the employee and the transfer will actually threaten his life and health, only in this case the employee will be able to refuse the transfer. I repeat, an employee’s unreasonable refusal of a temporary transfer due to production necessity if there is a real need for it in the organization is not allowed.
Accordingly, by taking into account all the necessary written documentation and understanding when it is possible or necessary to temporarily transfer an employee to another job, the employer will protect itself from disputes with employees.
Irina Chuchkina - legal consultant at IC U-Soft LLC, Regional Information Center of the ConsultantPlus Network. Editorial staff of the magazine "Kadrovik"
- Personnel policy, Corporate culture
Temporary transfer within the organization at the initiative of the employer.
The employee may betemporarily transferred with his consent for another job for a period up to one year. If the transfer is needed to replace a temporarily absent employee, whose place of work is retained in accordance with the law, - then the translation will be before this employee returns to work . (For example, in place of a person on maternity leave or on sick leave or on vacation.)
If the transfer period has ended, and you were not given the previous job, and you did not demand to return and continue to work, then the transfer is considered permanent (Part 1 of Article 72.2 of the Labor Code of the Russian Federation. Agreement of the parties is concluded in writing)
Remember! In accordance with the Labor Code of the Russian Federation, Art. 72.1 and 72.2 without yours written consent from you Dont Have the right to transfer to a lower position than you previously held (except for the cases specified in Part 2 of Article 72.2 of the Labor Code of the Russian Federation). With your consent, you can be transferred to a lower position, firstly, for a period of up to 1 month, and secondly, your payment must be no less than the average earnings for your previous job.
But! Let's look at situations in which the employer has the right transfer the employee to another job not stipulated by the employment contract, without his consent for a period of up to one month (Part 2 of Article 72.2 of the Labor Code of the Russian Federation).
These are the cases:
— a natural or man-made disaster;
— industrial accident;
- accident at work;
- fire;
- flood;
- hunger;
- earthquake;
- epidemic or epizootic;
- other exceptional cases that threaten the life or normal living conditions of the entire population or part of it.
Also, Part 3 of Article 72.2 of the Labor Code of the Russian Federation provides for a number of situations in which a temporary transfer of an employee is possible without his consent for a period of up to one month, namely:
— downtime (temporary suspension of work for reasons of economic, technological, technical or organizational nature);
— the need to prevent destruction or damage to property;
— replacing a temporarily absent employee
You can refuse the transfer. However! If you unreasonably refuse a transfer in the above situations, then this will be regarded as a disciplinary offense, and absence from work - as absenteeism (clause 19 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation "), If:
— a danger to your life and health arose due to a violation of labor protection requirements (except for cases provided for by federal laws) until such a danger is eliminated;
— the transfer is carried out to perform heavy work and work with harmful and (or) dangerous working conditions, and they are not provided for in the employment contract.
Attention! The duration of a temporary transfer of an employee to another job without his consent cannot exceed one month. But during the calendar year, such transfers can be made by the employer more than once .
The employee is paid depending on the work he performs, but not lower than the average earnings that he received at his previous place of work (Part 4 of Article 72.2 of the Labor Code of the Russian Federation for transfers that were made in the cases specified in Parts 2 and 3 of Article 72.2 of the Labor Code of the Russian Federation ).
Remember! If you are transferred to a job that requires lower qualifications, for the reasons set out in Part 3 of Article 72.2 of the Labor Code of the Russian Federation, then the employer must obtain written consent from you for such a transfer in any case, for example, if in the event of an emergency the accountant is charged with duties clean up the trash, then his consent to this transfer necessary.
How in practice should a temporary transfer be processed in the HR department?.
1. Employer orally or through a Transfer Offer offerstransfer to the employee.
2. The worker gives written agreement for translation (statement of consent to translation or phrase in the Proposal: I agree with the translation - date-signature).
3. The employee is introduced to his job description or other documentation related to his new position for signature.
4. The employer draws up an Addendum (agreement) to the employment contract on the transfer. The addition (agreement) to the employment contract is drawn up in 2 copies, both signed by both the employee and the head of the organization.
5. One copy remains with the employer, the second is given in person employee. In the first copy (which remains with the employer), the employee writes the phrase: “ I received the addition (agreement) to the employment contract - date-signature").
6. The employer issues an order to transfer an employee in the form T-5 (on the transfer of an employee) or T-5a (on the transfer of employees), approved by Resolution of the State Statistics Committee of the Russian Federation No. 1 of 01/05/2004. on the basis of the concluded Addendum to the employment contract, and its content must strictly comply with the conditions specified therein. The employee gets acquainted with the Order for signature.
The order must contain the number and date of registration of the order, as well as the signature of the manager.
7. If you do not agree with the transfer and refuse to read the order against signature, the employer draws upact of refusal to familiarize yourself with the order.
8. Remember! Information about temporary transfer Not are entered in your work book, so I recommend that you take a duly certified copy of the temporary transfer order so that you can confirm in the future that you performed this work.
9. At the end of the temporary transfer period, the employer must issue an order about the end of the transfer period and the employee returning to work in his previous position. The employee reads the order for signature, the order must contain the number and date of registration of the order, as well as the signature of the manager.
How to arrange a temporary transfer that does not require consent employee.
1. The manager issues an order for temporary transfer in form No. T-5 or T-5a indicating the reason for the transfer in the line called “reason for transfer”. The order must be supported by relevant documents, for example: testimonies of eyewitnesses and emergency service employees, various documents: written statements from employees about downtime due to the fault of the employer due to equipment malfunction, acts of emergency, order of the head of the organization on measures to eliminate the consequences of the accident, etc.
otherwise you may refuse the transfer. You must read the order for signature. The order must have a number registration, date and signature of the manager.
2. You must be familiarized with the job description and safety regulations for signature.
3. You have the right to refuse a transfer if you believe that labor safety requirements have been violated at the new place of work and this threatens your life or health. In this case, you write a statement in free form, in which you provide arguments that serve as the basis for refusing the transfer.
4. Make a copy of the order with your signature.
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