The implementation of a temporary transfer of an employee in case of production necessity is regulated by Article 72.2 of the Labor Code of the Russian Federation.

Based on the provisions of the current labor code, it is possible to conditionally distinguish three types of temporary transfers.

First view: to eliminate the consequences of catastrophes, accidents and other emergencies (fire, flood, explosion, etc.), if the consequences of such an event threaten the normal living conditions of a population group. Translation is allowed for a period up to one month.
Notice two things about this translation:

• it applies only in emergency situations when delay can lead to serious consequences for citizens;
• law does not require employee consent to such a transfer in view of the above circumstances. Therefore, if a person refuses to perform the work entrusted to him, this will be considered absenteeism.

Article 72.2 paragraph 2
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 that endanger 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 an employment contract with the same employer in order to prevent these cases or eliminate their consequences.

The term “downtime” means the temporary absence of work in the organization for a certain circle of employees due to objective reasons - there are no raw materials, necessary tools, there are difficulties with sales finished products and so on.

Always required to receive employee consent to temporary transfer of this type, however, there are:

• if the named events were caused by natural disasters or man-made disasters;
• if the transfer involves work in a higher position or equivalent.

Article 72.2 paragraph 3
The transfer of an employee without his consent for a period of up to one month to work not stipulated by the employment contract with the same employer is also allowed in cases of downtime (temporary suspension of work due to economic, technological, technical or organizational nature), the need to prevent the destruction or damage to property or to replace a temporarily absent employee, if the downtime or the need to prevent the destruction or damage to property or to replace a temporarily absent employee is caused by the emergency circumstances specified in part two of this article. At the same time, transfer to work requiring lower qualifications is allowed only with the written consent of the employee.

Third view: temporary transfer to another position until the release of the main employee or, in other words, temporary performance other work with the same employer (up to one year) replacing an absent employee for a period until he again begins to fulfill his duties (for example, during maternity leave).

In this case, you must obtain the consent of the transferred employee.

Article 72.2 paragraph 1
By agreement of the parties, concluded in writing, the employee may be temporarily transferred to another job with the same employer for a period of up to one year, and in the case when such a transfer is carried out to replace a temporarily absent employee, who, in accordance with the law, retains his job , until the employee returns to work. If at the end of the transfer period the previous job is not provided to the employee, but he did not demand its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer becomes invalid and the transfer is considered permanent.

Target

Having become acquainted with the types of temporary transfers, it is already possible to imagine a typical situation in which this legal instrument can be used: in a certain area of ​​the organization’s activity, acute shortage of staff and the employer there is no way to invite new employees to solve this problem.

To get out of this situation, employees are transferred from less stressful areas who performed other work. Thus, the transfer of an employee to another position within the organization temporarily covers the shortage of personnel in a certain area of ​​the company's activities.

Decor

Change labor function for a certain period requires a certain order.

A similar algorithm is applicable for translation temporary worker on temporary job title.

Should start with notifying an employee that it is planned to entrust him with another job in a temporary transfer.

Employee agree on paper with upcoming translation. For example, in the form addressed to the director.

It concludes where the parties will prescribe the terms of the temporary transfer, the name of the new position, the unit and the amount of remuneration.

The transfer procedure ends with a design, with which the employee must be familiarized until the day of the temporary transfer.

Depending on who makes the decision to transfer and for what reason, the need to obtain consent is determined.

If the law does not require the consent of the employee, then all registration will consist only of the last stage. For example, in the case production needs.

Production necessity is the situation in the organization caused by emergency events, the onset of which is difficult to predict: a catastrophe, an accident, a fire, an epidemic, and others.

In a situation where a temporary transfer is made to replace an employee who is on maternity leave, documents no exact end date for such a transfer can be specified.

In fact, an employee "on maternity leave" can at will resume their duties, and then the replacement employee should be returned to their previous place of work.

In this case, the employer needs to show maximum flexibility in order to avoid infringement every worker.

Entry in the workbook

Law does not provide making notes on cases of transfers of this kind in work books.

A situation may arise when a person worked, for example, as a head in the order of a temporary transfer, and he needs to confirm this fact for further employment.

To confirm their experience, an employee can use a copy of your transfer order or .

Often there are situations when an employee remains to work in a new place and after the end of the period temporary translation. It turns out that the employee will actually work in a new position from one date, and information in work book will be included at publication. Some HR professionals get out of this situation as follows:

• in column 3, which indicates the unit and position, they also write the date from which the temporary transfer was made;
• in column 4 they immediately refer to both orders of the director legal entity who approve both temporary and permanent transfers.

Return to former duties

Temporary translation, like everything non-permanent, involves return of the employee to his normal work function.

Most often, the employer publishes, which describes which employee from which date and in which unit will continue to work at the end of the transfer period.

But the absence of such a local document will not interfere employee to return to their previous position. The fact is that the order of the director, according to which the employee was transferred, had already expired. Consequently, the parties return to their previous position.

The employer is obliged to provide an opportunity to work in the specialty to an employee who was previously transferred to another job for a certain period.

Leaders should always keep in mind that temporary transfer is an emergency measure. This method of solving personnel and production problems is best used in only in extreme cases. In the end, each person must work in his position, corresponding to his knowledge and qualifications.

As the most significant kind of change employment contract in accordance with Art. 72 "of the Labor Code of the Russian Federation is understood as a permanent or temporary change in the labor function of an employee, structural unit in which the employee worked (if it was indicated in the employment contract) while continuing to work for the same employer, as well as transfer to another locality together with the employer. It is not a change of the employment contract, the transfer of the employee at his request or with his consent to another employer to permanent job, because in accordance with Part. 2 Article. 72" of the Labor Code of the Russian Federation, the employment contract terminates.

Labor law(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 for cases established by law.

It should be distinguished from transfer to another job moving employee from the same employer to another workplace, to another structural subdivision in the same area, assignment of work on another mechanism, unit. The movement does not require the consent of the worker. It will take place if the parties, when concluding an employment contract, did not specifically stipulate a workplace (mechanism, unit), structural unit as conditions of an employment contract.

The legislator distinguishes between temporary and permanent transfers to another job, depending on their timing.

At temporary transfer to another job, the parties to the corresponding transaction give rise to two interrelated consequences: they suspend the initial (main) obligation for a certain period with the emergence of a new (temporary) obligation. Upon the expiration of the appropriate period, the temporary obligation is terminated, and the parties resume the exercise of the 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 is allowed for up to one year. If the parties have agreed on a transfer in order to replace a temporarily absent employee who, in accordance with the law, retains a job (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 at the end of the period of temporary transfer the employee continues to work, then the transfer is considered permanent. With such a temporary transfer, the right of the absent employee to resume work previously performed by him 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 relating to the number extraordinary(natural or man-made disasters, accidents, other emergencies that endanger 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 to another job, including without taking into account the specialty, qualifications, for a period of up to one month to prevent the relevant circumstances or eliminate their consequences.

Another group of bases is associated with employer's business needs(in cases of downtime, the need to prevent the destruction or damage to the property of the employer, the replacement of a temporarily absent employee). The procedure for the implementation of such a temporary transfer depends on the reason that led to the emergence of a production need. So, if it is caused by the action of the previously mentioned extraordinary circumstances (for example, downtime due to flooding industrial premises due to flooding), then a temporary transfer is allowed without the consent of the employee for up to one month. However, if the temporary job requires a lower qualification, the employer must obtain the written consent of the employee for such a transfer. If the production need is caused by other reasons, a temporary transfer is allowed 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 the institution of medical and social expertise establishes that the employee needs to be temporarily transferred to another job for a certain period (but not more than four months in a row), and the employee refuses to transfer or the employer does not have 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 of an employee by order of the employer for a certain period of time to perform an official assignment outside the place of permanent work (Article 166 of the Labor Code of the Russian Federation). It is obligatory for the employee, and unreasonable refusal of it can be considered as a violation of labor discipline, and temporary transfer general rule 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 at the place of work. Thirdly, a business trip involves the performance of a specific official assignment, and not the assignment of any other duties to it. In turn, a temporary transfer to another locality or to another place of work (including when the consent of the employee is not required) means that he must regularly perform a labor function during the entire period of transfer to the established for him working time. Fourthly, in the event of a business trip, the provisions of the local regulations of the organization where the official assignment is performed are not applied to the employee, unless otherwise provided by local regulations. regulations or by order of the employer who sent him. In the case of a temporary transfer, local regulations apply to the employee in a general manner.

Permanent translation to another job, as a rule, is carried out by agreement of the parties to the employment contract. The motives for a permanent transfer can be: promotion at work at the request of the employee; the need of the employer to strengthen the personnel of the unit; assessment of the employee's professional achievements or, on the contrary, his insufficient qualifications; decrease in the worker's ability to work; etc. In particular, if an employee, for health reasons, in accordance with the conclusion of an institution of medical and social expertise, 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 for 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 working 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 with the preservation of the average salary. If the employer does not have a job suitable for a pregnant woman, she is released from work with the preservation of the average wage for all the working days missed in connection with this.

Full text of Art. 72.2 of the Labor Code of the Russian Federation with comments. New current edition with additions for 2019. Legal advice under article 72.2 of the Labor Code of the Russian Federation.

By agreement of the parties, concluded in writing, the employee may be temporarily transferred to another job with the same employer for a period of up to one year, and in the case when such a transfer is carried out to replace a temporarily absent employee, who, in accordance with the law, retains his job , - until the employee goes to work. If at the end of the transfer period the previous job is not provided to the employee, but he did not demand its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer becomes invalid and the transfer is considered permanent.

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 that endanger 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 an employment contract with the same employer in order to prevent these cases or eliminate their consequences.

The transfer of an employee without his consent for a period of up to one month to work not stipulated by an employment contract with the same employer is also allowed in cases of downtime (temporary suspension of work for reasons of an economic, technological, technical or organizational nature), the need to prevent the destruction or damage to property, or replacement temporarily absent employee, if downtime or the need to prevent the destruction or damage of property or to replace a temporarily absent employee is caused by the emergency circumstances specified in part two of this article. At the same time, transfer to work requiring lower qualifications is allowed only with the written consent of the employee.
When transfers are made in the cases provided for in parts two and three of this article, the employee's remuneration is made according to the work performed, but not lower than the average earnings for the previous job.

Commentary on Article 72.2 of the Labor Code of the Russian Federation

1. The commented article deals with temporary translation. It should be considered in a systematic connection with, which establishes the possibility of concluding an agreement on changing the terms of an employment contract.

In the absence of a permanent transfer condition, temporary transfers are subject to a one-year time limit. In accordance with the requirements of Art. 14 of the Labor Code of the Russian Federation, terms calculated in years expire on the corresponding date of the last year. If the last day of the term falls on a non-working day, the expiration date of the term shall be the next working day following it.

At the same time, the commented article establishes that in the case when such a transfer is carried out to replace a temporarily absent employee, for whom, in accordance with the law, the place of work is retained, the transfer period is set before this employee returns to work. In this case, the period of temporary transfer may be longer (for example, in the absence of the main employee due to parental leave). At the same time, the term of the transfer, which is considered temporary, is not specified. Its termination will actually depend on the desire and ability of the main employee to go to work.

If the term of the transfer has expired, the previous job was not provided to the employee, and he himself did not demand its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer becomes invalid and the transfer is considered permanent.

Thus, the legislator, setting the transfer period at one year, emphasized the right of the employee, despite the fact that the transfer was made by his own consent, to return to his previous place of work after a year. Corresponding to this right is the duty of the employer to provide such an opportunity.

If the period of temporary transfer is limited by the period of absence of the main employee, the rights of the latter are protected, since it is expected that he will return to the performance of his labor function.

If, after a year, the parties to the employment contract did not consider it necessary to exercise the above right, as in the case if the main employee did not go to work (for example, when terminating the employment contract with him or transferring), then the temporary transfer is transformed into a permanent one.

2. Transfer to another job without the written consent of the employee is possible only in cases provided for in parts 2, 3 of the commented article.

In case of emergency, in which the normal course economic activity becomes impossible, the employee may be transferred without his consent to work not stipulated by the employment contract with the same employer, but only to prevent these cases or eliminate their consequences, and for a period of up to one month.

Similarly, in cases of downtime, as well as if it is necessary to prevent the destruction or damage to property or to replace a temporarily absent employee, but only in cases where this is caused by emergency circumstances, the transfer of an employee without his consent to work not stipulated by an employment contract with the same employer is also allowed for up to one month.

At the same time, as emphasized by the Supreme Court of the Russian Federation, the employer has the right to transfer the employee to work not stipulated by the employment contract only in extraordinary cases, specified in parts 2 and 3 of Art. 72.2 of the Labor Code of the Russian Federation, or to eliminate their consequences. The employer must provide evidence of the existence of emergency circumstances that necessitated the temporary transfer of the employee without his consent to work not stipulated by the employment contract (determination of the Armed Forces of the Russian Federation of April 8, 2010 N 53-B11-1).

The following case is indicative. judicial practice. By order of the chief physician, T. was temporarily transferred to the position of a cardiovascular surgeon at the employer's polyclinic without his consent. According to the employer, the transfer of T. did not contradict the provisions of Part 2 of Art. 72.2 of the Labor Code of the Russian Federation, since the absence of a cardiovascular surgeon in the clinic regional hospital jeopardizes the life or normal living conditions of the entire population or part of it, which is an emergency. However, the court disagreed with these arguments. The case under consideration, according to the court, is not extraordinary.

Paragraph 17 of the resolution of the Plenum of the Supreme Court of the Russian Federation on the application by the courts of the Labor Code of the Russian Federation provides that when applying parts 2 and 3 of Art. 72.2 of the Labor Code of the Russian Federation, which allow the temporary transfer of an employee to another job without his consent, the courts should keep in mind that the obligation to prove the existence of circumstances with which the law associates the possibility of such a transfer rests with the employer. When considering this case, the employer did not provide evidence of the existence of emergency circumstances that necessitated the temporary transfer of the employee without his consent to work not stipulated by the employment contract. Accordingly, the employee was transferred under the pretext of operational necessity, in the absence of exceptional cases indicating the real need for such a transfer, in connection with which the said transfer was declared illegal.

Thus, the employer should not attribute his, even if high, need to transfer the employee to another job as an emergency.

3. Among the guarantees provided for the employee, if available emergencies and its temporary translation, according to parts 2 and 3 of the commented article, the following applies:
- even in such cases, transfer to work requiring lower qualifications can only be carried out with the written consent of the employee;
- with such transfers, the employee's remuneration is made according to the work performed, but not lower than the average earnings for the previous job (on the procedure for calculating the average wage and commentary on it).

Another commentary on Art. 72.2 of the Labor Code of the Russian Federation

1. General principle stability employment relationship(see Art. 60, 72 and commentary thereto) extends its effect to cases of temporary transfers to another job. This means that, as a rule, a change in the content of the labor function and (or) the place of employment stipulated by the contract is carried out exclusively by agreement of the parties, concluded in writing (see article 72 of the Labor Code and commentary thereto).

At the same time, the legislator establishes some additional mandatory rules related to ensuring the principle of stability of the labor relationship. By virtue of part 1 of the commented article, if at the end of the transfer period the previous job was not provided to the employee, but he did not demand its provision and continues to work, then the condition on the temporary nature of the transfer becomes invalid and the transfer is considered permanent. Thus, the very fact of allowing the employee to work after the date indicated in the transfer agreement as the end of the transfer period means that the parties have reached a new agreement that the new job is permanent for the employee. With regard to a transfer to replace a temporarily absent employee, such an agreement is presumed for the case when this employee returned to work and at the same time the transferred employee is also not released from the transfer work.

This rule also applies to those cases where the change in the labor function was expressed in the assignment to the employee to perform work in a different position, specialty or profession without being released from the previous job, i.e. in cases of combining professions, positions or expanding the service area (see article 60.2 of the Labor Code and commentary thereto).

Since part 1 of the commented article establishes the rules for temporary transfer to another job with the same employer, these rules do not apply to cases of temporary transfer of an employee to another employer. In the latter case, the law does not require the mandatory written execution of a transfer agreement (although a written form is appropriate), the terms of the transfer, including the condition of its duration, are determined solely by agreement of the parties; accordingly, the rule established by this article regarding the transformation of a temporary transfer into a permanent one is not valid. Therefore, if there is a need to transfer the employee to work with the employer at the place of transfer, such a transfer should be carried out according to the rules for dismissal in the order of transfer to another employer or by dismissing the employee according to own will with the subsequent conclusion of an employment contract with a new employer.

2. On the peculiarities of the temporary transfer to another job of pregnant women and women with children under the age of one and a half years, see Art. 254 of the Labor Code and commentary to it.

On the features of the temporary transfer to another employer of professional athletes, see Art. 348.4 of the Labor Code and commentary to it.

3. The employer has the right to transfer the employee to work not stipulated by the employment contract in order to prevent the extraordinary cases specified in parts 2 and 3 of the commented article, or to eliminate their consequences. In this regard, the Supreme Court of the Russian Federation indicates: when applying parts 2 and 3 of the commented article, which allow the temporary transfer of an employee to another job without his consent, the courts should bear in mind that the obligation to prove the existence of circumstances with which the law associates the possibility of such a transfer , is assigned to the employer (clause 17 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts Russian Federation Labor Code of the Russian Federation).

Transfer to another job in these cases is regulated by federal law, therefore, the right of the employer to carry out such a transfer, as well as the obligation of the employee to perform a new job, follow directly from the law, regardless of whether this is provided as a condition of the employment contract. Work not stipulated by an employment contract is understood as work that may be outside the scope of the labor function stipulated by an employment contract.

The transfer in question belongs to the category of transfers carried out at the initiative of the employer. An employee's refusal to transfer is a disciplinary offense entailing disciplinary liability.

Translation in the order of the commented article has the following features: a) is possible in the presence of actual circumstances of an extraordinary nature; b) is temporary; c) can only be carried out with the same employer; d) is allowed if the employee retains the right to work of a certain quality.

4. The list of cases of an extraordinary nature, which are the basis for the transfer of an employee, is given in parts 2 and 3 of the commented article. If the employer carried out the transfer of an employee under the pretext of operational necessity, in the absence of exceptional cases indicating the real need for such a transfer, it is recognized as illegal.

Judicial practice proceeds from the fact that the transfer in question is possible if the employer had no other way to prevent or eliminate the circumstances indicated in the commented article. Shortcomings in the organization of labor cannot serve as a basis for such a transfer.

5. Translation in the order of the commented article is allowed for a period not exceeding one month. Since the law limits only the time limit, but not the number of transfers, such a transfer can take place more than once, but whenever there is a relevant reason of an exceptional nature.

If the action of the reason that caused the transfer in question lasts more than a month, the employee may be entrusted with performing work outside the stipulated labor function or place of work (structural unit), subject to obtaining his consent to this.

6. In accordance with the Labor Code, the transfer in question is allowed only with this employer. It does not matter that the circumstance that caused such a transfer may occur with another economic entity. Temporary transfer to another employer to eliminate these circumstances is possible only with the consent of the transferred employee.

At the same time, the legislator does not in any way limit the possibility of transferring, due to the circumstances specified in the commented article, to a subdivision of the employer's organization located in another locality.

7. When transferring in the order of the commented article, the employee cannot be assigned work that is contraindicated for him for health reasons.

An assignment to a transferred worker of work of a lower qualification than that stipulated by the employment contract is possible only with the written consent of the worker.

8. Transfer to replace a temporarily absent employee is a special case of temporary transfers of the type in question and is carried out on the basis of the general rules established for temporary transfers by the commented article.

9. Transfer to another job in the cases specified in the commented article is formalized by an order (instruction) of the employer, which must indicate the reason and term for the transfer, the work assigned to the employee and the conditions of remuneration (for the work performed, but not lower than the average earnings for the previous work).

10. The employer's order to transfer is binding on the employee, and unreasonable refusal of it is a disciplinary offense, entailing disciplinary liability.

If the employee does not go to work or goes to the previous workplace, his actions should be considered as absenteeism. If an employee enters a new workplace, while refusing to perform the corresponding work, his actions should be interpreted as a continuing disciplinary offense, for which several disciplinary sanctions may be announced, including dismissal for repeated failure to perform job duties(Clause 5, Article 81 of the Labor Code).

However, by virtue of par. 5 st. 219, part 7 of Art. 220 of the Labor Code, an employee cannot be subjected to disciplinary action for refusing to perform work in the event of a danger to his life and health due to violation of labor protection requirements, with the exception of cases provided for federal laws, until such a hazard is eliminated or from performing work with harmful and (or) hazardous conditions work not covered by the employment contract. Since the Labor Code 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 the commented article, the employee’s refusal to temporarily transfer to another job in accordance with Art. 72.2 of the Labor Code for the above reasons is justified (paragraph 19 of the Decree of the Plenum of the RF Armed Forces dated March 17, 2004 N 2).

Consultations and comments of lawyers on Article 72.2 of the Labor Code of the Russian Federation

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1. Article 72.2 of the Labor Code of the Russian Federation is specifically devoted to temporary transfer to another job. It provides for the possibility of temporary transfer to another job by agreement of the parties (part 1) and at the initiative of the employer without the consent of the employee in cases provided for by law (parts 2, 3).

2. In accordance with part 1 of the commented article, by agreement of the parties, concluded in writing, the employee may be temporarily transferred to another job with the same employer. The law does not name specific grounds on which such a transfer is allowed, and therefore it is possible on any basis, incl. both for a vacant position (place of work) with this employer, and for replacing a temporarily absent employee within the period established by law. How general rule this period shall not exceed one year. An exception is established for cases of transfer to another job to replace a temporarily absent employee, for whom, in accordance with the law, the place of work is retained. In this case, the transfer period may be more than one year. It depends on the time of entry to work of the replaced worker.

Within the time limits established by law, the parties determine a specific period during which the employee will perform work not stipulated at the conclusion of the employment contract.

At the end of the period of temporary transfer to another job determined by the parties, the employer may, and at the request of the employee is obliged to provide him with the previous job. However, if the term of the temporary transfer has expired, and the employee does not insist on the provision of the previous job and continues to work, then the condition on the temporary nature of the transfer becomes invalid. In this case, work in the position (profession, specialty) to which the employee was temporarily transferred is considered permanent for him and the employer is not entitled to transfer him to his previous or other job without the consent of the employee.

3. Temporary transfer to another job should be distinguished from the performance by an employee on behalf of the employer of the duties of a temporarily absent employee along with work stipulated by an employment contract. Unlike a temporary transfer to another job, which is allowed both to a vacant position (place of work) and to replace a temporarily absent employee who retains the position (place of work), the employee can perform the duties of a temporarily absent employee without releasing his main duties. only to replace an employee who retains the position (place of work) (for example, for the duration of a business trip, vacation, temporary disability). The performance by an employee on behalf of the employer of the duties of a temporarily absent employee along with work stipulated by an employment contract, in contrast to a temporary transfer to another job, is not limited by any period. This period is determined by agreement of the parties. The agreement of the parties on a temporary transfer to another job cannot be terminated early unilaterally by the employee or employer, as is the case when the employee, along with his work, performs the duties of a temporarily absent employee (see comments to Article 60.2).

4. Part 2 of the commented article provides the grounds on which the employer has the right to transfer the employee temporarily to another job not stipulated by the employment contract, without his consent. The law does not establish exhaustive list such grounds, but clearly defines their nature - these are exceptional cases that endanger the life or normal living conditions of the entire population or part of it. These include, in particular, natural or man-made disasters, industrial accidents, accidents, floods, earthquakes, etc.

Only in the presence of these emergency circumstances is it possible to temporarily transfer an employee without his consent to another job and in case of downtime, which is understood as a temporary suspension of work for reasons of an economic, technological, technical or organizational nature, as well as if it is necessary to prevent the destruction or damage to property or to replacement of an absent employee (part 3 of article 72.2 of the Labor Code of the Russian Federation). In other words, the temporary transfer of an employee without his consent to work not stipulated by an employment contract can be recognized as justified only if this is necessary due to emergency circumstances that endanger the life or normal living conditions of the entire population or part of it. If the need for a temporary transfer of an employee to another job is caused, for example, by such reasons as equipment breakdown, untimely delivery of raw materials or materials, etc., and this is not related to the emergency circumstances provided for in part 2 of the commented article, then such a transfer is only allowed by agreement of the parties. As explained by the Plenum of the Supreme Court of the Russian Federation in Resolution No. 2 of March 17, 2004, when applying parts 2 and 3 of the commented article, which allow the temporary transfer of an employee to another job without his consent, the courts should keep in mind that the obligation to prove the existence the circumstances with which the law connects the possibility of such a transfer rests with the employer (clause 17).

5. The duration of one (each) transfer to another job without the consent of the employee in cases where such a transfer is necessary due to emergency circumstances that endanger the life or normal living conditions of the population, should not exceed one month. However, such a transfer may be repeated. This rule also applies to cases of temporary transfer to another job to replace an absent employee, i.e. transfer to another job to replace an absent employee due to emergency circumstances is not limited to one month within calendar year.

The job to which the employee is transferred in connection with the above circumstances (including to replace a temporarily absent employee) must correspond to his qualifications. If in this situation it is necessary to transfer to another job that requires lower qualifications, then such a transfer is allowed only with the written consent of the employee.

6. Temporary transfer of an employee to another job in all cases provided for in Article 72.2 of the Labor Code of the Russian Federation is allowed only with the same employer with whom he has an employment relationship. At the same time, when transferring an employee to another job without his consent, i.e. in the cases provided for in parts 2 and 3 of this article, remuneration must be made according to the work performed, but not lower than the average earnings for the previous job.

In all cases, it is unacceptable to transfer to another job that is contraindicated for the employee for health reasons.

7. This article gives the employer the unconditional right to transfer employees without their consent to work not stipulated by the employment contract in exceptional cases that endanger the life or normal living conditions of the population. In this regard, the employee cannot refuse such a transfer if it is carried out in accordance with the established requirements and the employee does not have valid reasons for refusing the transfer.

Refusal to perform work in a translation made in compliance with the law is recognized as a violation labor discipline, and absence from work - absenteeism.

In doing so, it should be taken into account that, by virtue of par. 5 st. 219, part 7 of Art. 220 of the Labor Code, an employee cannot be subject to disciplinary action for refusing to perform work in the event of a danger to his life and health due to violation of labor protection requirements, with the exception of cases provided for by federal laws, until such danger is eliminated or from performing heavy work and work with harmful and (or) dangerous working conditions not provided for by the employment contract. Since the Labor Code does not contain provisions prohibiting an employee from exercising this right even when the performance of such work is caused by a transfer due to emergency circumstances, the employee’s refusal to temporarily transfer to another job in accordance with Article 72.2 of the Labor Code of the Russian Federation for the above reasons is justified (see paragraph 19 Decree of the Plenum of the RF Armed Forces dated March 17, 2004 N 2).

Sometimes an employee has to be transferred to another job for a while. 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 move and do not process it properly or underpay wages when transferred to a lower paid position. You will learn about the cases in which temporary transfers are possible, how to distinguish them from transfers, how much to pay for the work of a temporarily transferred employee and how to document all this, after reading the article.

Instead of a preface

Note that a change in a structural unit will be considered a transfer only if its name was fixed in an employment contract (for example, in the form of the phrase “An employee is accepted for the position of 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 both with the consent of the employee and without.

Temporary transfer with the consent of the employee

And first of all, let's talk about the timing of such a transfer. Temporary transfer to another job with the same employer is possible for a period of up to one year, and in the case when such a transfer is carried out to replace a temporarily absent employee who, in accordance with the law, retains his job, until this employee returns to work.

We note that due to Part 4 Art. 72.1 of the Labor Code of the Russian Federation it is forbidden to transfer and move an employee to work that is contraindicated for him for 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 term, new duties of the employee, as well as other conditions that differ from those established by the employment contract.

Separately, let's talk about the wording of the translation period. 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 which the employee returns to his workplace, because the absent employee may return to work later (for example, when extending leave or sick leave). For the latter case, the wording may be as follows: "This supplementary agreement is valid until the date of return to work from parental leave of the leading specialist Gulkina E.D."

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 line "Type of transfer" that the transfer is temporary. With such an order, the employee must be familiarized with signature.

The next step in making a temporary transfer will be to make an entry about it in section. III personal card "Employment and transfers to another job" (f. T-2 or T-2 GS (MS)).

But a temporary transfer is not entered in the work book. This rule has been set 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 permanent transfers are entered in the work book.

note

If an employee is transferred to another job or position, he must be familiarized with job description and other local regulations relevant to the performance of this work. In addition, you may need to conduct a safety briefing or conclude a liability agreement.

Note that the employer should control the end of the temporary transfer, since due to Part 1 Art. 72.2 of the Labor Code of the Russian Federation, if at the end of the transfer period the previous job is not provided to the employee, but he did not demand its provision and continues to work, then the condition on the temporary nature of the transfer becomes invalid and the transfer is considered permanent. In this regard, the question arises: is it necessary to 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 so. Usually, for this, 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 may look like this.

State Autonomous Institution of the Arkhangelsk Region

"Sports Training Center"

Arkhangelsk

Due to the expiration of the temporary transfer by agreement of the parties

I ORDER:

1. Pshenitsyna Olga Viktorovna, who temporarily, by agreement of the parties dated 04.04.2014 No. 2, held the position of deputy head of the department for providing sports teams, start working under the employment contract No. 10-06 dated 12.06.2010, as the chief specialist of the department for providing sports teams teams, since August 21, 2014

2. Accounts departments to accrue Pshenitsyna O. V. wages in accordance with staffing as the chief specialist of the department for providing sports teams.

Director cereals I. I. Zlakov

Acquainted with the order. Pshenitsyn, 20.08.2014

It may happen that the main employee quits or the temporarily occupied position is completely vacant, and the management of the organization, and even himself temporary worker Do not mind making a temporary transfer permanent. In this case, it is necessary to conclude another additional agreement, indicating in it that a temporary transfer made under an agreement from such and such a date is considered permanent. On the basis of the agreement signed by the parties, it is necessary to issue an order in any form, in which it is also fixed that the condition on the term of the transfer has become invalid.

Note that in this situation there is a nuance. When transforming a temporary transfer into a permanent one, it is necessary to make an entry in the work book. Moreover, the date of the transfer will be the first day of the temporary transfer.

Example

On February 3, 2014, an employee of the State Budgetary Institution, by agreement of the parties, 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?

*
Temporary Transfer Order.

**
An order to invalidate the provision on the temporary nature of the transfer.

Please note that if an employee does not start work under an employment contract, that is, he wants to continue working in accordance with the order for a temporary transfer, the employer has the right to apply disciplinary measures to him: remark, reprimand, dismissal on appropriate grounds, for example, for absenteeism - pp. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation.

Temporary transfer without the consent of the employee

• natural or man-made disasters;
• industrial accident or industrial accident;
• fire, flood, famine, earthquake, epidemic or epizootic;
• any exceptional cases that endanger the life or normal living conditions of the entire population or part of it.

The transfer of an employee without his consent to work not stipulated by an employment contract with the same employer is also allowed in the following cases:

• downtime (temporary suspension of work due to economic, technological, technical or organizational reasons);
• the need to prevent destruction or damage to property;
• replacement of a temporarily absent employee.

Plenum of the Armed Forces of the Russian Federation in Decree No. 2 noted that if, when transferring to another job in case of downtime, the need
to prevent the destruction or damage to property or the replacement of a temporarily absent employee, the employee will have to perform work of a lower qualification, then such a transfer is effective Part 3 Art. 72.2 of the Labor Code of the Russian Federation 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 associates the possibility of a transfer without the consent of the employee, such a transfer will be declared illegal ( clause 17 of Resolution No. 2 ). So, T. since 1999 worked as a cardiovascular surgeon at the Pskov Regional Hospital. By order of the chief physician, he was temporarily transferred without his consent to the polyclinic of the regional hospital for the position of a cardiovascular surgeon, citing the need for replacement vacant position and in order to prevent a threat to the life and health of the population. Considering the employer's decision to be unlawful, T. refused to perform his duties at the polyclinic, for which he was subjected to a disciplinary sanction in the form of a reprimand. The court declared illegal both the disciplinary order and the temporary transfer order. The GBUZ did not provide evidence of the existence of emergency circumstances that necessitated the temporary transfer of an employee without his consent to work not stipulated by an employment contract. The transfer was made under the pretext of operational necessity in the absence of exceptional cases indicating the real need for such a transfer, and therefore the specified transfer is illegal (Appeal ruling of the Pskov Regional Court dated October 2, 2012 in case No. 33‑1580).

note

Refusal to perform work during translation in case of emergency, committed in compliance with the law, is recognized as a violation of labor discipline, and absence from work - absenteeism ( clause 19 of Resolution No. 2 ). At the same time, it should be taken into account that due to par. 5 hours 1 art. 219, Part 7 Art. 220 of the Labor Code of the Russian Federation An employee may not be subject to disciplinary action for refusing to perform work in the event of a danger to his life and health due to violation of labor protection requirements, except in cases provided for by federal laws, until such danger is eliminated or from performing hard work and work with harmful and ( or) hazardous working conditions not provided for by the employment contract. Since the Labor Code of the Russian Federation does not contain norms 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 of the 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 consent of the employee must also be issued. For this, a transfer order is issued indicating the reasons (catastrophe, industrial accident, etc.). And of course, it is better to back up such an order with relevant documents, otherwise the employee may refuse to transfer.

Translation or relocation?

Before moving, carefully check the terms of the employment contract - whether it indicates the workplace, structural unit and whether the employee's labor function will change. Otherwise, avoid labor disputes. So, G., who works in the State Unitary Enterprise as a senior accountant, was moved to the position of an accountant. The PMU believed that these positions have similar job functions. Considering the dispute on invalidating the transfer order, the court noted: it follows from the employer’s order that in fact there was not a transfer, but G.’s transfer 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 consent of the employee (in the cases mentioned in part 2, 3 art. 72.2 of the Labor Code of the Russian Federation), remuneration is made according to the work performed, but not lower than the average earnings for the previous job. That is, if the employee's remuneration for the work performed is lower than his previous average earnings, then he is paid the former average earnings, determined in the prescribed manner.

Well, if wages new job exceeds the average earnings of the employee, then he is paid a supplement to the salary for a new job. Thus, the claims for the 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 wages 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, the remuneration is also determined by agreement of the parties, however, usually when transferring an employee, the salary of a new position is set. If he is transferred to a less qualified job, the parties may agree to maintain the previous salary or to assign an additional payment to the previous salary.

Temporary transfer for medical reasons

Note

The medical report is issued in the manner prescribed by the 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 certificate.

When receiving a medical opinion from an employee, first of all, you need to pay attention to the transfer period indicated in the certificate, since the further actions of the employer depend on this.

If an employee is shown a temporary transfer to another job for up to four months, the employer must offer him another job suitable for health reasons. In the absence of such or refusal of the employee, the employer is obliged to remove him from work with the preservation of the place of work (position) for the entire period specified in the medical certificate. 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 admission of the employee.

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 to transfer or if the employer does not have the appropriate job, the employment contract is terminated by p. 8 h. 1 art. 77 Labor Code of the Russian Federation- the employee's refusal to transfer to another job, which is necessary for him in accordance with a medical certificate issued in the manner prescribed by federal laws and other regulatory legal acts of the Russian Federation, or the employer does not have an appropriate job. 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).

Note

According to Art. 254 of the Labor Code of the Russian Federation pregnant women, in accordance with a medical report and upon their application, are transferred to another job that excludes the impact of adverse production factors, while maintaining the average earnings from their previous job. Until the provision of another job, the pregnant woman is subject to release from work with the preservation of the average earnings for all missed working days as a result of this 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

For the period of temporary transfer of an athlete to another employer, the originally concluded employment contract is suspended, but the validity period is not interrupted.

note

If an athlete during the period of 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 of the Labor Code of the Russian Federation).

In case of early termination of the employment contract concluded for the period of temporary transfer of the athlete to another employer, for any of the reasons 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 on which the termination of the employment contract concluded on temporary transfer period.

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, require the termination of the employment contract concluded for the period of temporary transfer , and the renewal of the originally concluded labor contract, then the latter is terminated and the validity of the labor 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 varieties of temporary translation, and each has its own characteristics. Let's recap the main points. Firstly, temporary transfer is 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 established exceptions: an employer can make a temporary transfer for up to one month in case 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 the Decree of the State Statistics Committee of the Russian Federation dated 05.01.2004 No. 1 “On approval unified forms primary accounting documentation for the accounting of labor and its payment.