The procedure for the employer's actions during the temporary transition of the employee directly depends on who was the initiator. We will tell you how to arrange such a transfer in two cases - by agreement of the parties and without the consent of the employee. Learn how to stop personnel changes.

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How to issue a temporary transfer of an employee to replace an absent employee

If the employer does not have emergency circumstances, he can briefly transfer an employee to another job only with his written consent (Article 72.2 of the Labor Code of the Russian Federation). To do this, it is necessary to conclude an additional agreement to the current TD (employment contract). This is important because when moving to another position for a short time, the employee changes:

• official position;
• salary amount.

When arranging a short-lived transfer of an employee to replace an absent employee, it is impossible to predict the exact end date of the event. Therefore, a condition is introduced into the additional agreement, which serves as the basis for the termination of the temporary personnel reshuffle. In this case, such a basis will be the exit to work of the main employee.

An additional agreement is drawn up taking into account the general rules:

1. The document is made in two copies
2. Amended items of TD are introduced into it, indicating that the remaining conditions of TD remain unchanged.
3. The agreement is signed by the employee and the employer. To issue a temporary transfer in various cases, the service in the Kadra System will help you. Get started with master of temporary translation right now.

A temporary transfer to another job by agreement of the parties is formalized not only by drawing up an additional agreement, but also by order. It claims the fact of temporary personnel changes within the organization. In addition to the order, which can be issued in the unified form No. T-5 or No. T-5A, as well as on forms developed by the company independently, you will need to make an entry in section III of the employee’s personal card.

Additional agreement. Temporary transfer of an employee to another position

Information about the transfer is reflected in the work book only if it is carried out constantly. There is no need to make a temporary entry. If in the future the employee needs to confirm the fact of non-permanent work, he can request in writing from the employer a certificate or a copy of the temporary transfer order.

how to temporarily transfer an employee to another job by agreement of the parties. From the article you will learn about the procedure for the procedure and the features of documenting.

Temporary transfer to another position: distribution of duties among several employees

The labor legislation of the Russian Federation does not oblige employers to resolve issues of replacing absent employees in the only standard way. If the scope of duties of the absent employee is extensive, and the personnel situation allows distributing his functions to several employees, this can be done. In this case, it is not about translation. The movement of an employee or several employees is also not carried out. Everyone will perform their job duties plus additional work that was previously performed by a temporarily absent specialist.

This is formalized through an additional agreement to the employment contract on the temporary replacement of an absent employee. When expanding responsibilities, draw up:

• an additional agreement, prescribing in it the scope of new duties, the amount of additional payment;
• an order that gives employees additional powers.

It is not necessary to enter information about the additional amount of work in personal cards and work books of employees.

When is it possible to temporarily transfer to another job without the consent of the employee

You can temporarily transfer an employee to another job without his consent, only if it is necessary to prevent or eliminate the consequences of:

• man-made, natural disasters;
• accidents;
• earthquakes, floods, fires;
• epidemics, epizootics, famine;
• other cases that threaten normal living conditions or the lives of a large part of the population.

Additionally, two conditions must be met:

1. All these cases should be caused only by extraordinary circumstances: catastrophes, accidents, fire, floods, and so on.
2. The job to which the employee moves must correspond to his level of qualification or be more qualified.

If the last condition is not met, written consent must be obtained, which is expressed by a note on the notice provided by the employer, or in the form of a separate application.

Types of transfers to another job of the Labor Code of the Russian Federation

Such transfers are divided into temporary and permanent. Temporary work is carried out by agreement of the parties or without the consent of the employee.

The duration of the performance of official duties in case of a short transfer to another job is limited by the Labor Code of the Russian Federation to one month if the transfer is made without the consent of the employee.

It is also possible to transfer while the main employee also temporarily performs other duties.

★ The expert of "System Kadra" will tell you how to arrange a temporary transfer of an employee to another job. From the article you will learn about the procedure for carrying out the procedure, about transferring to another position by agreement of the parties and without the consent of the employee, the features of processing the order and documents on the basis of which the transfer is terminated.

How to justify the temporary transfer of an employee to another position b

If a dispute arises about the legality of transferring an employee without his consent, the employer needs to prepare documents that can be used to confirm the existence of emergency circumstances caused by such a transfer (paragraph 17 of the decision of the Plenum of the Supreme Court dated March 17, 2004 No. 2).

These documents are used:

• acts of emergency services specialists;
• acts on the occurrence of emergencies;
• order of the head of the organization on the measures taken to eliminate the consequences of the accident, etc.

How to stop the temporary transfer of an employee to another job: the procedure for registration

After the end of the transfer period, the employer issues an order, on the basis of which the employee is provided with the previous place of work. The order is drawn up in any form, since the unified form of such a document is not approved. If, at the end of the transfer deadline, the employee was not provided with the previous job, but he does not insist on this, continues to work, the condition of the executed agreement becomes invalid, the temporary position becomes permanent (part 1 of article 72.2 of the Labor Code of the Russian Federation).

This situation must be documented by concluding a new supplementary agreement. After that, the employer issues an order, the personnel officer makes an entry in the personal card and in the employee's work book.

Order on the recognition of a temporary transfer as permanent

What is the difference between the movement of an employee according to the Labor Code of the Russian Federation

The transfer of an employee to another workplace is not considered a transfer if the conditions of the TD do not change, and the labor function remains the same. An exception is such situations when a workplace is indicated in the TD, when it changes, the terms of the TD change, and constitute an additional agreement. So, for example, a permanent transfer is possible only with the written consent of the employee. The movement is carried out without obtaining such consent.

It is possible to transfer an employee to another job for a short time only with his written consent, unless there is an emergency. An additional agreement is concluded to the current employment contract. The reason is that when moving to another position, the employee temporarily changes: position, salary.

In case of emergencies, the employer has the right to transfer the employee without his consent for some time.

Transfer is a permanent or temporary change in the labor function of an employee and (or) the structural unit in which he works (if the unit was specified in the employment contract), while continuing to work for the same employer, as well as transfer to work in another locality together with the employer (Article 72.1 of the Labor Code of the Russian Federation).

The transfer is not considered and does not require the consent of the employee:

• moving him from the same employer to another workplace,
• moving it to another structural unit located in the same area,
• entrusting him to work on another mechanism or unit, if this does not entail a change in the terms of the employment contract.

The circumstance is also not considered a transfer if the structural unit in which the employee works is not specified in the employment contract.

All translations are divided into:

• temporary,
• permanent,
• mandatory transfers.

In turn, temporary transfers can be divided into those carried out with the consent of the employee and transfers without consent. Let's look at all types of translations in order.

Permanent transfers of an employee to another job

A permanent transfer is issued in the following cases (Article 72.1 of the Labor Code of the Russian Federation):

• the labor function of the employee changes (for example, an engineer becomes a chief engineer);
• the structural unit specified in the employee's employment contract changes (for example, the manager of the purchasing department is transferred to the sales department);
• the employee is transferred to work in another locality (settlement) in connection with the relocation of the employer.

Permanent transfer is possible both at the initiative of the employee and at the initiative of the employer, but is allowed only after an agreement has been reached between the employee and the employer. It is mandatory to obtain the written consent of the employee. If the employee does not object to the transfer, he expresses his consent either on the proposal of the employer, or in a separate document (application).

What an employer needs to do:

1. Conclude an additional agreement with the employee to the employment contract. In it, write down the name of the new position, the amount of remuneration and other conditions that have changed in connection with the transfer. The agreement is drawn up in two copies for each party, on the copy of the employer, the employee puts a mark in receiving his own. Give one copy to the employee, the second copy remains with you, the employee must sign on it that he received his copy of the agreement.
2. Issue an order to transfer to another position and to another unit (form N T-5 or arbitrary).
3. Make a record of the transfer to another job in the work book. In column 4 of the work book, you must specify the details of the transfer order. The entry must be made within a week from the date of issuance of the order (clause 10 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”, hereinafter referred to as the Rules).
4. Enter information about the transfer in sect. III of the employee's personal card and familiarize him with this entry against signature.

If the employee is transferred to a position for which the conclusion of a fixed-term employment contract is provided. So that the re-qualification of an open-ended contract into an urgent one is not regarded as an infringement of the employee's rights, it is better to terminate the previously concluded employment contract and conclude a new fixed-term one.

5 situations when the employer is wrong

Situation 1: The organization has free rates. The employee asked the boss to transfer her to one of them, but he refused. Are the boss's actions legal?

Answer: According to Art. 72 of the Labor Code of the Russian Federation, a change in the terms of an employment contract determined by the parties, including transfer to another job, is allowed only by agreement of the parties to the employment contract, with the exception of cases provided for by the Labor Code of the Russian Federation. Thus, yes, the boss has the right to refuse an employee.

Situation 2: The employee was transferred to another department for the same position and with the same amount of work performed, but the salary was reduced without the consent of the employee. Is it legal?

Answer: Changing the terms of an employment contract, in particular wages, is allowed as a general rule only with the consent of the employee and is formalized by an additional agreement to the employment contract. Therefore, the employer acted incorrectly.

It is not uncommon for an employer to transfer an employee to a higher position, and in order to test the employee, sets him a probationary period:

Situation 3: The employee holds the position of chief specialist. The position of head of department was vacated in the department. The employer wants to offer this position to the chief specialist, but he is not sure whether the employee will be able to cope with the assigned duties. Can an employer set a probationary period for an already employed employee? Can an employer conclude a fixed-term employment contract for three months?

Answer: Establishing a probationary period for an employee carrying out labor activities in an organization is not provided. The test is established only at the conclusion of an employment contract, that is, for a new employee (Article 70 of the Labor Code of the Russian Federation). The conclusion of a fixed-term employment contract when transferring to another position will also be illegal. In this case, the employer can issue a temporary transfer of the employee to another position.

Situation 4: The employer hired a foreign citizen for a position in accordance with the permit. However, due to operational necessity, this employee was transferred to another position not specified in the permit. Is the employer right?

Answer: hiring a foreign citizen to work not in the specialty specified in the work permit is not legal. Such a situation, when the work actually performed by a foreigner does not correspond to the type of activity specified in the permit, is equated by the Federal Migration Service and the courts to work without a permit (Decision of the Moscow City Court dated 12.12.2011 N 7-2678; Resolutions of the Federal Antimonopoly Service of the North Caucasus District dated 05.21.2012 N A53 -16050/2011, Supreme Court of the Russian Federation dated September 23, 2011 N 18-AD11-15). And entails the imposition of significant penalties or suspension of the organization, which in any case is an unjustified risk for the employer.

Situation 5: the employer demanded that the employee, who is on parental leave, go to work for one day to familiarize herself with the order for her transfer to a lower position and a decrease in wages. Is the employer legally acting, motivating the specified transfer by the need to reduce the expenses of the organization?

Answer: The employer is acting illegally. An employee cannot be recalled from vacation without her consent and transferred (Article 125 of the Labor Code of the Russian Federation). Transfer without the consent of this employee is only allowed on the basis of a medical report. Thus, her former position should be retained for her (Article 256 of the Labor Code of the Russian Federation). Thus, the order issued by the employer will worsen the position of the employee in comparison with the established labor legislation and be illegal. In accordance with Part 4 of Art. 8 of the Labor Code of the Russian Federation, it cannot be applied. If the employer nevertheless makes the transfer without such consent and applies an order that worsens the rights of the employee, then she can resort to protecting her labor rights by legislative means and appeal against the actions of the employer, thereby reinstating her previous position.

Temporary transfers to another job

Temporary transfer to another job is made for a certain period. At the same time, the employee’s labor function and (or) structural unit is temporarily changed, if it was indicated in the employment contract. Temporary transfers include (Article 72.2 of the Labor Code of the Russian Federation):

• transfer to another job, carried out by agreement of the parties for a period not exceeding one year;
• transfer to another job, carried out by agreement of the parties to replace an absent employee for a period before his return to work;
• transfer to another job due to objective reasons (for example, for up to 4 months in accordance with a medical report).

The procedure for issuing a temporary transfer is similar to that for permanent transfers. The exception is that in case of temporary transfers, an entry in the employee's work book is not made, regardless of the reason and term for such a transfer. If the deadline is not known, they write "until the temporarily absent employee leaves." And already on the basis of the agreement, an order for a temporary transfer is issued.

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, then it is valid until the employee returns to work. As a general rule, at the end of the term, the transfer is terminated, and the employee is provided with the work provided for by the employment contract.

But it may well be that the term of the transfer has expired, and the employee was not provided with the previous job and 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 such a situation, it is advisable for the parties to fix these agreements in writing by drawing up an additional agreement to the employment contract. Further, on the basis of such an agreement, the employer issues an order on personnel, in which it states the fact that the transfer, which was originally issued as temporary, is now considered permanent. And in this case, it becomes necessary to make an entry in the work book of the employee.

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Transfers with the consent of the employee

The employer may also temporarily transfer the employee with his consent for the period of suspension of work due to an administrative suspension of activities or a temporary ban on activities in accordance with the legislation of the Russian Federation due to violation of state regulatory requirements for labor protection through no fault of the employee. At the same time, he retains his place of work (position) and average earnings (Article 220 of the Labor Code of the Russian Federation).

Transfers without the consent of the employee

The period of temporary transfer at the initiative of the employer, that is, without the consent of the employee, cannot exceed one month.

In addition, this can be done only in certain cases, which are indicated in Part 3 of Art. 72.2 of the Labor Code of the Russian Federation:

• natural or man-made disasters, industrial accidents, industrial accidents, fire, flood, famine, earthquake, epidemics or epizootics and any exceptional cases that endanger the life or normal living conditions of the entire population or part of it (part 2);
• downtime (temporary suspension of work due to economic, technological, technical or organizational reasons);
• the need to prevent destruction or damage to property;
• the need to replace a temporarily absent employee (part 3).

All of the above cases must be caused by emergency circumstances specified in Part 2 of Art. 72.2 of the Labor Code of the Russian Federation. These include any circumstances that endanger the life or normal living conditions of the population or part of it. It is strongly not recommended to transfer an idle employee to another job if he does not agree to this. If no emergency circumstances are identified, then the transfer of the employee will be declared illegal.

A transfer without the consent of the employee is executed by order of the employer, indicating the circumstances that caused such a transfer. If an employee is transferred to a position requiring a lower qualification, written consent should be requested from him. At the same time, payment is made in an amount not lower than the average earnings for the previous job.

Transfer to another locality

Transfer to another locality together with the employer, that is, a change in the location of the organization, is considered a permanent transfer. It does not occur so often, however, there are nuances and the employer needs to know about it.

The execution of such a transfer should take place in the following sequence:

1. The employer must notify all employees of such a transfer in advance. Since the timing of such a warning is not established, one should be guided by Art. 74 of the Labor Code of the Russian Federation and apply a two-month notice period,
2. Offer employees a translation. It is not necessary to send a transfer proposal to each employee, but it is enough to issue one order and bring it to the attention of everyone against signature.
3. Be sure to obtain the consent of employees,

In a situation where the organization has changed its legal address and the executive body has changed its location, but the actual place of work of employees has remained the same, it is not necessary to issue a transfer.

Employees who refuse to be transferred to another locality must be dismissed under paragraph 9 of part 1 of Art. 77 of the Labor Code of the Russian Federation - refusal to transfer to another locality together with the employer. The employee is paid a severance pay in the amount of two weeks' earnings (Article 178 of the Labor Code of the Russian Federation). As with ordinary dismissal, form No. T-8 (or form No. T-8a), approved by Resolution No. 1, is used to formalize the termination of employment relations with employees.

With employees who have expressed a desire to continue working with this employer in another locality, relations are formalized as follows:

• an additional agreement is concluded to the employment contract on transfer to another locality,
• on the basis of an agreement with the employee, an order is issued,
• a record is made of the transfer to another locality, even if the employee remains in the same position and in the same structural unit,
• an entry is made in the employee's personal card.

The employer should not forget about such an important point: if the employee agrees to move to work in another area, he will have to reimburse:

• expenses for the relocation of the employee himself, his family members and the transportation of property (except for cases when the employer provides the employee with appropriate means of transportation);
• expenses for settling in a new place of residence.
• The specific amounts of reimbursement of expenses are determined by agreement of the parties to the employment contract (Article 169 of the Labor Code of the Russian Federation).

Mandatory transfer to another job

Situations in which the transfer is mandatory occur both at the initiative of the employee (when he has the right to demand from the employer a transfer to another job), and at the initiative of the employer (due to circumstances beyond the control of the parties). At the same time, an employee can be transferred both on a permanent and temporary basis. For example, if an employee refuses to perform work in the event of a danger to his life and health, the employer is obliged to provide such an employee with another job while the danger is eliminated (Article 220 of the Labor Code of the Russian Federation).

The employer is obliged to satisfy the request of the employee to transfer him to another job in the following situations:

• provided with a medical certificate;
• reduction in the number or staff of employees in the organization;
• in case of suspension of a special right;
• a woman is pregnant or has children under the age of one and a half years.

Moreover, each of these situations has its own design features.

1. The employee provided a medical report issued in accordance with the procedure for issuing certificates and medical reports, approved by Order of the Ministry of Health and Social Development of the Russian Federation of 02.05.2012 N 441n. According to the document, the employee needs to be transferred to another job. In this case, the employer is obliged to transfer to another job he has, which is not contraindicated for this citizen for health reasons. The transfer of an employee to another position, where work is not contraindicated for him for health reasons, is carried out with his written consent (part 1 of article 73 of the Labor Code of the Russian Federation).

True, there is one “but” - if an employee who needs a temporary transfer for up to four months refuses to transfer (or there is no corresponding job), then the employer must remove the employee from work for this period while maintaining the place of work (position). In this case, during the period of suspension, wages are not accrued to the employee. At the same time, if an employee needs a temporary transfer 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 in accordance with paragraph 8 of part one of Article 77 of the Labor Code of the Russian Federation (Art. 73 of the Labor Code of the Russian Federation).

With managers (and their deputies) who need translation for medical reasons, the situation is different. In their case, the employment contract with them may not be terminated, and the period of suspension from work is determined by agreement of the parties.

It is not uncommon for an employee to be transferred to a lower-paid job. The employer is obliged to keep the average earnings from the previous job within one month from the date of transfer. If the transfer is associated with an employment injury, occupational disease or other damage to health associated with work - until a permanent loss of professional ability to work is established or until the employee recovers (Article 182 of the Labor Code of the Russian Federation). Judicial practice confirms this. The judges ruled that the employer’s obligation to maintain average earnings for the employee arises from the moment the employee is transferred to a lower-paid position and terminates with the establishment of a permanent loss of professional ability to work (Appeal ruling of the Vologda Regional Court of September 13, 2013 N 33-4301 / 2013).

1. When carrying out measures to reduce the number or staff of the organization's employees, the employer is obliged to offer the employee another available job (both a vacant position or a job corresponding to qualifications, and a vacant lower position or a lower-paid job). If the transfer cannot be made, the employee will have to be fired on the basis of paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation. About the upcoming dismissal due to a reduction in the number or staff of the organization's employees, employees are warned by the employer personally and against signature at least two months before the dismissal (Article 180 of the Labor Code of the Russian Federation).
2. If an employee has lost the opportunity to perform duties under an employment contract in the event of suspension of the employee’s special rights (licenses, the right to drive a vehicle, the right to carry weapons, etc.) for a period of up to two months, the employer is obliged to transfer the employee to another available job (as a vacant a position or job corresponding to qualifications, as well as a vacant lower position or lower-paid job) that an employee can perform taking into account his state of health. Of course, in this case, the employer must obtain the written consent of the employee. In addition, the employer is obliged to offer all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract. If the employee refused or there is no vacant position, he is suspended from work without pay (Article 76 of the Labor Code of the Russian Federation). If the period of suspension of a special right exceeds two months or the employee is deprived of this right, the employment contract with him is subject to termination in accordance with paragraph 9 of part 1 of Art. 83 of the Labor Code of the Russian Federation.
3. In accordance with the medical report, the employer must transfer the pregnant employee to another job that excludes the impact of adverse production factors, while maintaining the average earnings from the previous job. A statement is required from the employee. Until other work is provided, a pregnant woman is released from work. She retains the average earnings for all missed working days as a result of this at the expense of the employer (Article 254 of the Labor Code of the Russian Federation).

Meanwhile, women with children under the age of one and a half years, if it is impossible to perform their previous work, they are transferred at their request to another job with wages for the work performed, but not lower than the average earnings at the previous place of activity until the child reaches the age of one and a half years (Art. 254 of the Labor Code of the Russian Federation). Also, pregnant women and women with children under the age of three cannot be involved in work performed on a rotational basis (Article 298 of the Labor Code of the Russian Federation).

In this situation, the transfer to another job is carried out as follows:

1. The parties conclude an additional agreement to the employment contract
2. The manager issues an order to transfer to another job
3. The personnel officer makes entries about the transfer in the work book and personal card in the form No. T-2

A situation may arise when an employee does not want to interrupt her vacation or go to part-time work. In this case, there is no need to force her to interrupt the vacation. It is enough to invite her to drive to work to draw up an additional agreement to the employment contract or send a courier to her. True, it is recommended that the employee be familiarized with the new job description against signature in order to avoid refusal to perform duties that may come as a surprise to her. This must be done before signing an additional agreement to the employment contract.

The procedure for issuing an additional agreement:

1. Date of change of labor function - indicate the date from which the employee will perform a new labor function (work in a new position or in another department). This may be the current date (in the case when the structure of the company changes) or the actual date of her return to work from parental leave.
2. In the additional agreement, it is possible to indicate (optionally) that the employee began her new duties after leaving parental leave.
3. If, when transferring to another position (in a department), the salary of an employee changes, then these changes should also be made to the supplementary agreement.

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 employee is not provided with the previous job, 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 of 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.

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 release from the previous job, i.e. in cases of combining professions, positions or expanding the service area (see Art. 60 2 TC and commentary to it).

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 does not apply. 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 of dismissal in the order of transfer to another employer or by dismissing the employee of his own free will, followed by the 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 TK 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 elimination of 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 on the employer (clause 17 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”).

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 only limits the time limit and not the number of transfers, such a transfer can take place more than once, but whenever there is a corresponding exceptional reason.

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, in connection with 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. A 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 returns to his previous workplace, his actions should be considered as absenteeism. If the employee enters a new workplace, while refusing to perform the relevant 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 labor duties (paragraph 5 of 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 disciplined 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, up to 186

elimination of such a danger or from performing work with harmful and (or) dangerous working conditions not provided for by the employment contract. Since the Labor Code 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 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 resolution of the Plenum of the RF Armed Forces dated March 17, 2004 No. 2).

• The general principle of the stability of an employment relationship (see Articles 60, 72 and comments thereto) also applies 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 rules of an imperative nature 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 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. 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.

TEMPORARY TRANSLATION: EXAMPLE STEP-BY-STEP PROCEDURE (GENERAL)

According to Part 1 of Art. 72.2 of the Labor Code of the Russian Federation:

"By agreement of the parties, concluded in writing, an employee may be temporarily transferred to another job with the same employer for a period of up to one year, and in the event that such a transfer is carried out to replace a temporarily absent employee, for whom, in accordance with the law, a place is retained work, until the employee returns to work.

1. One of the parties (employee or employer) comes up with the initiative to temporarily transfer the employee to another job.

The initiative may be verbal. And the parties in the negotiations come to an agreement on a temporary transfer.

The idea of ​​a temporary translation may also have a written form, but this is not necessary.

1.1. If the employee himself comes out with the initiative of temporary transfer to another job, then he can write an application for his temporary transfer to another job (position). The employee's application is registered in the manner prescribed by the employer, for example, in the register of employees' applications.

1.2. If the employer comes up with the initiative to temporarily transfer the employee to another job, he can make a written offer to the employee on temporary transfer to another job (position). The offer is made in two copies. The offer is registered in the manner prescribed by the employer, for example, in the register of notifications and offers to employees. One copy is given to the employee. On the second copy (the copy that remains with the employer), the employee writes that he is familiar with the proposal, received one copy, puts the date of receipt, and signs. If the employee agrees to the transfer, then he can put a "consensual note" on the employer's proposal or write a statement of consent to the transfer. The employee's application is registered in the manner prescribed by the employer, for example, in the register of employees' applications.

2. Familiarization of the employee with his job description(for a new position), other local regulatory legal acts directly related to his new labor activity.

The procedure for familiarization with local regulations is not defined by the code; in practice, there are various options:

Familiarization sheets are attached to the local regulatory act, on which employees put their signatures confirming familiarization and the dates of familiarization (such sheets are stitched together with the local regulatory act),

Keeping logs of familiarization with local regulations, in which employees put their signatures confirming familiarization, and indicate the dates of familiarization.

A certain procedure for familiarization with local regulations can be enshrined in such an act itself. Find out your employer's procedure for familiarizing employees with local regulations before you begin to familiarize an employee with them.

3. Signing a written transfer agreement between the employee and the employer (to the employment contract) and, if there are grounds, the signing of an agreement on full liability.

The agreement and the contract are drawn up in two copies (one for each of the parties), unless a larger number of copies is provided for the given employer.

4. Registration of a transfer agreement and an agreement on full liability in the manner prescribed by the employer. For example, an agreement can be registered in the register of agreements for employment contracts with employees, and an agreement on full liability - in the register of agreements on full liability with employees.

5. Handing over to the employee his copy of the transfer agreement.

The receipt by the employee of a copy of the agreement should be confirmed by the signature of the employee on the copy of the agreement remaining for storage with the employer. We recommend putting the phrase “I have received a copy of the agreement” before the signature.

If an agreement on full liability is signed with the employee, then one copy of it is also transferred to the employee.

6. Issuance of an order (instruction) on the transfer of an employee to another job.

7. Registration of this order (order) in the manner prescribed by the employer, for example, in the register of orders (orders).

8. Familiarization of the employee with the order (instruction) against signature.

Notes.

* Information about a temporary transfer is not entered in the employee's work book. Therefore, it is recommended to resolve with the employee the issue of issuing him a copy of the temporary transfer order, duly certified, so that the employee can confirm in the future, if necessary, that he performed this work.

** The issue of entering information about a temporary transfer into a personal card is controversial in practice.

*** At the end of the temporary transfer period, an order may be issued to end the temporary transfer period.

• Book

This follows from Article 72.1 of the Labor Code of the Russian Federation.

Among temporary transfers, we can distinguish transfers that are carried out:

In addition, it has its own characteristics (Article 348.4 of the Labor Code of the Russian Federation).

Translation by agreement of the parties

The maximum duration of the transfer of an employee to another job by agreement of the parties is one year. If an employee replaces a temporarily absent employee, the transfer may take longer - until another employee returns to work.

After the expiration of the temporary transfer period, the employee must be provided with the previous job. If at the end of the transfer period the employee did not return to his previous job, then the temporary transfer, by written agreement of the parties, acquires the force of a permanent one.

This is stated in part 1 of article 72.2 of the Labor Code of the Russian Federation.

Example of registration of temporary transfer of an employee to another job

A.V. Lampochkin works in the organization as an electrician. In February 2016, an accident occurred - the warehouse building collapsed.

For the period of liquidation of the consequences of the accident, Lampochkin was transferred in order to replace a temporarily absent employee to a less qualified job (appointed as a watchman). The duration of the temporary transfer is 20 calendar days (from February 11 to March 1 inclusive). The employee agrees with the transfer. The corresponding entry was made on transfer notice. The head was issued transfer order .

Days of work as a watchman for Lampochkin were paid based on his average earnings in his previous job - 552.60 rubles per day. During the temporary transfer, the employee worked 10 working days. Therefore, Lampochkin was credited with:

RUB 552.60/day × 10 days = 5526 rubles.

Transfer without the consent of the employee

The list of cases when an employee can be transferred to work without his consent is limited by law. Such a transfer is acceptable if it is necessary to prevent or eliminate the consequences of:

• natural or man-made disasters;

• industrial accident;

• accident at work;

• fire, flood, earthquake;

• hunger, epidemics, epizootics;

• other exceptional cases endangering the life or normal living conditions of the entire population or part of it.

Also, temporary transfer of an employee without his consent is allowed in the following cases:

• just me;

• the need to prevent destruction or damage to property;

• the need to replace a temporarily absent employee.

In addition, two additional conditions must be met:

• these cases must be caused by extraordinary circumstances (catastrophe, accident, fire, flood, etc.);

• the job to which the employee is transferred must match the qualifications of the employee or be more qualified.

This procedure is established in parts 2 and 3 of Article 72.2 of the Labor Code of the Russian Federation.

If the latter condition is not met, that is, the employee is transferred to a less qualified job, it is necessary to obtain his written consent. To do this, compose notification and familiarize the employee with it under the signature. The employee can express his consent (disagreement) to the transfer by an appropriate entry on the notification or in the form separate statement . This is stated in parts 3 and 4 of article 72.2 of the Labor Code of the Russian Federation.

In the event of a dispute about the legality of the transfer without the consent of the employee, the employer needs to prepare documents that confirm the existence of circumstances that allow such a transfer (clause 17 of the decision of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2). As supporting documents, for example, certificates of employees of emergency services, acts of an emergency, an order of the head of the organization on measures to eliminate the consequences of an accident, etc. can be used.

Situation: can an employee refuse to be temporarily transferred to another job if there are circumstances that allow the employer to make such a transfer without the consent of the employee?

No, he can not.

Refusal is permissible only in cases where labor protection rules are violated at the new place or the employee will have to perform hard (harmful, dangerous) work not provided for by the contract.

In the presence of that allow the employer to temporarily transfer an employee to another job without his consent, the employee must agree with such a transfer (Article 72.2 of the Labor Code of the Russian Federation). An unreasonable refusal to perform new duties can be regarded as a violation of labor discipline, and absenteeism from work can be regarded as absenteeism.

However, the employee has the right to refuse a temporary transfer if:

• at the new place of work, the rules of labor protection are violated - until the violations are eliminated;

• the employee is required to perform heavy, harmful and dangerous work not provided for by the employment contract.

In these situations, the employee's refusal to transfer is considered reasonable. Therefore, the employer cannot bring an employee to disciplinary liability for refusing to work on a temporary transfer, even if there are circumstances that allow such a transfer to be carried out without the consent of the employee. This follows from the totality of the provisions of Articles 219 and 220 of the Labor Code of the Russian Federation. The legitimacy of this approach is confirmed by paragraph 19 of the decision of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2.

The duration of the transfer, which is carried out without the consent of the employee, cannot exceed one month. At the same time, the number of such transfers and their frequency is not limited by law. This follows from part 2 of article 72.2 of the Labor Code of the Russian Federation.

The work of an employee during the period of temporary transfer must be paid after the fact, but not lower than the average salary for the previous job. This is stated in part 4 of article 72.2 of the Labor Code of the Russian Federation.

Documenting

Complete the procedure for issuing any temporary transfer (by agreement of the parties, without the consent or with the consent of the employee) by issuing an order in a unified formNo. T-5 (No. T-5a)or self-developed form.

Do not make an entry about a temporary transfer in the work book, but it can be made in the employee's personal card (clause 4 of the Rules approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225).

After the expiration of the transfer period, it is advisable to issue an order to provide the employee with the previous place of work, since if at the end of the transfer period the employee is not provided with the previous job, but he did not demand its provision and continues to work, the condition of the agreement on the temporary nature of the transfer becomes invalid, and the transfer is considered permanent (part 1 of article 72.2 of the Labor Code of the Russian Federation). Such an order does not have a unified form, so make it in free form .

If the condition of the agreement on the temporary nature of the transfer has become invalid and the transfer is considered permanent, then in order to document this situation, it is recommended to issue a new additional agreement between the employee and the employer on changing the nature of the transfer and issue an appropriate order.

Situation: Is it possible to temporarily transfer an employee to another organization?

No, you cannot, except in cases of temporary transfer of athletes.

As a general rule, the temporary transfer of an employee to another job is possible only within the same organization with which he concluded an employment contract. This is one of the main conditions for a temporary transfer, provided for in Article 72.2 of the Labor Code of the Russian Federation. This condition is valid regardless of what is the basis for the transfer (the agreement of the parties, the occurrence of emergency circumstances, production necessity, etc.).

It is allowed to temporarily transfer an employee to a branch or representative office. This is explained by the fact that both branches and representative offices are structural divisions of the organization (clauses 1, 2, article 55 of the Civil Code of the Russian Federation).

If organizations are part of a holding, then temporary transfer of employees between them is also impossible. Such organizations are independent legal entities.

At the same time, a special procedure for temporary transfer applies to professional athletes. Such employees, subject to a number of conditions, may be temporarily transferred from one employer to another. This is stated in article 348.4 of the Labor Code of the Russian Federation.

Professional athletes

Temporary transfer of a professional athlete to another employer is possible subject to the following conditions:

• the transfer is due to the inability to provide the athlete with participation in sports competitions;

• the transfer is carried out by agreement of the parties and with the written consent of the athlete;

• the term of the transfer does not exceed one year.

At the time of the transfer with the athlete a fixed-term employment contract . At the same time, the validity of the employment contract at the original place of work is considered suspended until the expiration of the fixed-term employment contract (i.e., the exercise of rights and obligations under the originally concluded contract is suspended). The original employment contract is renewed after the expiration of the temporary transfer period. During the period of temporary transfer, the duration of the originally concluded employment contract is not interrupted.

The employer at the place of temporary work cannot transfer the athlete to another employer. If a fixed-term employment contract concluded for the period of the temporary transfer of an athlete is terminated ahead of schedule, the originally concluded contract is valid in full from the next working day after the termination of the fixed-term employment contract.

If, at the end of the term of the fixed-term employment contract, the athlete continues to work at the place of temporary transfer, the original contract is terminated. This rule is valid only in the absence of requirements for termination of a fixed-term employment contract by the athlete, the employer at the place of temporary work and the former employer. In this case, the validity of the employment contract concluded for the period of temporary transfer is extended for a period determined by agreement of the parties (in the absence of such an agreement, for an indefinite period).

This procedure for the temporary transfer of a professional athlete is established in Article 348.4 of the Labor Code of the Russian Federation.