How to arrange a temporary transfer to a vacant position before replacing this position with the main employee? Temporary transfer of an employee to another position Order for temporary transfer to another job.
Temporary transfer to another job is provided for by Art. 72.2 of the Labor Code of the Russian Federation. It is noted that an employee can be temporarily transferred to another job with the same employer on the basis of an agreement between the parties, concluded in writing. A typical example of a temporary transfer is a transfer to replace a temporarily absent employee who, in accordance with the law, retains his job. For example, during maternity leave, a long illness or a business trip of the main employee.
In this case, we will tell you how to draw up an employee’s application for a temporary transfer in our consultation.
Time limit for temporary transfer
As a general rule, a temporary transfer of an employee can be made for a period of up to 1 year. But for the temporary transfer of an employee to replace an absent employee, for whom, in accordance with the law, the place of work is retained, a special period is set. In this case, the transfer is made for the period until the absent employee returns to work.
Remuneration for temporary transfer under the Labor Code of the Russian Federation
Since a temporary transfer during the absence of the main employee is made at the initiative of the employee, remuneration will correspond to the new position. Regardless of the fact that the salary for the new position has become higher or lower than the salary for the old one.
We draw up an application for a temporary transfer of an employee
Application for temporary transfer of an employee to vacant position due to the absence of the main employee, it is compiled in an arbitrary form. It indicates the full name. and the position of the employee, the reason for the transfer (due to the temporary absence of the main employee), the name of the position to which the employee wants to be transferred, the term for such a transfer. The term can be indicated in the application both by indicating a specific date, and by bringing the general wording - "until the temporarily absent employee returns to work."
Please note that the employee's application for transfer is only his wish. Accordingly, the employer can both agree with the transfer of the employee, and refuse him this.
If the employer agrees to the transfer of the employee, an additional agreement is concluded with him to the employment contract, which provides for a change in the terms of the employment contract determined by the parties (labor function, wage conditions, etc.). After that, the employer publishes.
Accordingly, when the main employee returns to work, the employee temporarily transferred to his position is transferred back. An additional agreement to the employment contract and a transfer order will also be required.
Here is a sample of filling out an application for the temporary transfer of an employee to another position.
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
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 transfer 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
According to Art. 72.1 of the Labor Code of the Russian Federation Translation means a permanent or temporary change labor function of the employee and (or) the structural unit in which the employee works, while continuing to work for the same employer, as well as transferring to work in another area together with the employer.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
A temporary transfer requires an agreement in writing. The employer first offers the employee a vacant position or a position where an absent employee needs to be replaced. Then, upon agreement, an additional agreement is concluded on a temporary transfer to another job, position or to another structural subdivision.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, the 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 date for the end of 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 an absent employee may return to work later (for example, when extending a vacation 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 the job description and other local regulations that are 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. The accounting department shall pay wages to O. V. Pshenitsyna in accordance with the staff list 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 the temporary employee himself, do not mind making the 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?
| №
records | the date | Information on hiring, transfer to another permanent job, qualifications, dismissal (with reasons and a link to the article, paragraph of the law) | Name, date and number of the document on the basis of which the entry was made | ||
| number | month | year | |||
| 1 | 2 | 3 | 4 | ||
| … | … | … | … | … | … |
| State budget institution | |||||
| Vladimir region "Management | |||||
| highways" | |||||
| 8 | 09 | 12 | 2012 | Adopted as leader | Order dated 09.12.2012 |
| specialist expert. | № 22 | ||||
| 9 | 03 | 02 | 2014 | Promoted to chief | Order dated 03.02.2014 |
| acceptance department | № 16* | ||||
| for repair and maintenance | Order dated 28.07.2014 | ||||
| highways. | № 47** | ||||
*
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
As we have already understood, as a general rule, a temporary transfer, as well as a transfer on a permanent basis, is carried out by agreement of the parties to the employment relationship. However, the Labor Code makes an exception for some cases. So, an employee can be transferred without his consent to work not stipulated by an employment contract with the same employer in order to prevent or eliminate the consequences of:- 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 written consent 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 to the position of a cardiovascular surgeon, citing the need to fill a vacant position and in order to prevent a threat to the life and health of the population. 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, with the exception of cases provided for federal laws, until such danger is eliminated or from performing hard work and work with harmful and (or) dangerous 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?
Sometimes the employer confuses a temporary transfer with a transfer and, instead of issuing an agreement and a transfer order, issues a transfer order. Recall that due to Part 3 Art. 72.1 of the Labor Code of the Russian Federation moving from the same employer to another workplace, to another structural unit located in the same area, entrusting work on another mechanism or unit, if this does not entail a change in the terms of the employment contract determined by the parties , does not require employee consent.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, labor disputes cannot be avoided. 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 the remuneration for a new job exceeds the average salary of an 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
As we found out, temporary transfer is carried out with the consent of the employee or without it. However, according to Art. 73 Labor Code of the Russian Federation the employer is obliged to transfer the employee to another job (position) if he needs it in accordance with the medical report. Moreover, other work should not be contraindicated to the employee for health 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 report. To do this, the employer issues an order in any form. The order should indicate the period for which the employee is suspended, if the period is still not specified, upon admission to work, an order should be issued on the 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 a 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
This is a special type of temporary transfer - it can be carried out to another employer. Yes, based on Art. 348.4 of the Labor Code of the Russian Federation in cases where the employer is not able to ensure the participation of an athlete in sports competitions, it is allowed, by agreement between the employers, to temporarily transfer the athlete with his written consent to another employer for a period not exceeding one year. At the same time, the employer at the place of temporary work concludes a fixed-term employment contract with the athlete in accordance with the requirements Art. 348.2 of the Labor Code of the Russian Federation.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 of unified forms of primary accounting documentation for accounting for labor and its payment”.
In this article, we will tell you how to arrange for the personnel officer to transfer employees to another job. Let us consider in detail the following types of transfers: temporary and permanent, at the initiative of the employee and at the initiative of the employer, with the consent of the employee and without obtaining his consent. We will also pay special attention to the procedure for transferring an employee to work in another area together with the employer.
Rules for transferring to another job
General rules
P transfer to another job - this is a permanent or temporary change in the labor function of an employee or structural unit in which the employee works (if the structural unit was indicated in the employment contract), while continuing to work for the same employer, as well as transfer to work in another area together with the employer (Art. 72.1 of the Labor Code of the Russian Federation). Transfers can be temporary and permanent, at the initiative of the employee and at the initiative of the employer, with the consent of the employee and without his consent.
Note
In this case, structural subdivisions should be understood as branches, representative offices, as well as departments, workshops, sections, etc. (Clause 16 of the decision of the Plenum of the Supreme Court dated March 17, 2004 No. 2).
Please note that transfer to another job is allowed only with the written consent of the employee (Article 72.1 of the Labor Code of the Russian Federation). The exceptions are some cases of temporary transfer, to which we will pay special attention below. In this case, an agreement to change the terms of the employment contract determined by the parties must be concluded in writing (Article 72 of the Labor Code of the Russian Federation).
Note that the consent of the employee is not required to move him from the same employer to another workplace, to another structural unit located in the same area, to entrust him with work on another mechanism or unit, if this does not entail a change in the terms of the employment contract determined by the parties.
In all cases, it is forbidden to transfer and move an employee to work that is contraindicated for him for health reasons.
Also, at the written request of the employee or with his written consent, it can be carried out.
Please note: if the transfer to another job is recognized as illegal, the employee must be reinstated at the previous place of activity. At the same time, the body considering an individual labor dispute makes a decision to pay such a person the difference in earnings for the entire time of performing lower-paid work. Also, the court has the right, at the request of the employee, to make a decision on the recovery from the employer of monetary compensation for moral damage caused by these actions (Article 394 of the Labor Code of the Russian Federation). Moreover, in the event of a delay by the employer in the execution of the decision to reinstate the employee in his previous job, the body that made the decision makes a determination on the payment of the difference in earnings to this citizen for the entire time of the delay (Article 396 of the Labor Code of the Russian Federation).
Permanent translation
In this case, we are talking about a permanent change in the labor function of the employee or the structural unit in which the employee works (if the structural unit was indicated in the employment contract) (Article 72.1 of the Labor Code of the Russian Federation).
Any employee can apply for a transfer (see Example 1).
To process the transfer, form No. T-5 or form No. T-5a (see Example 3) is used, approved by the Decree of the State Statistics Committee of the Russian Federation of 01/05/2004 No. 1 "On approval of unified forms of primary accounting documentation for accounting for labor and its payment" ( hereinafter - Decree No. 1).
Based on the order to transfer an employee to another job, marks are made in the section “Employment, transfers to another job” in the employee’s personal card (form No. T-2 or No. T-2GS (MS)) (see Example 4) and front invoice (Form No. T-54 or No. T-54a).
- To whom: [email protected] website
- Topic: Free consultations
When issuing an order to transfer an employee to another job (form No. T-5, approved by the Decree of the State Statistics Committee of the Russian Federation dated January 05, 2004 No. 1 “On approval of unified forms of primary accounting documentation for accounting for labor and its payment”), personnel officers often have a question: “What document should be indicated in the line “Reason: change to the employment contract from ....”? Details of the employment contract itself or details of an additional agreement to the employment contract?
- Olga Maksimova,
- Head of the Human Resources Department, Burevestnik LLC, Nizhny Novgorod
Answered by Vladimir Pirogov, lawyer at Nikline LLC:
In the line "Basis: change to the employment contract from ..." the details of the supplementary agreement to the employment contract should be indicated. Let's explain our position.
In accordance with Art. 72.1 of the Labor Code of the Russian Federation transfer to another job - a permanent or temporary change in the labor function of an employee and (or) the structural unit in which the employee works (if the structural unit was indicated in the employment contract), while continuing to work for the same employer, as well as transfer to work to another area with the employer. And the place of work and the labor function of the employee are mandatory conditions of the employment contract (Article 57 of the Labor Code of the Russian Federation).
Article 72 of the Labor Code of the Russian Federation states that changing 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, which is concluded in writing.
Therefore, the basis for issuing a transfer order will be an amendment to the employment contract signed by both parties, namely, an additional agreement.
And in accordance with the Instructions for the application and filling out the forms of primary accounting documentation for accounting for labor and its payment, if an employment contract was not concluded with the employee (the employee was hired before 10/06/1992) and his employment is issued by order, with filling out the unified form No. T-5, the line "Basis" indicates specific documents on the basis of which the employee will be transferred to another job (application, medical report, memo, etc.), and the requisite "Change to the employment contract" is not filled.
In accordance with Art. 66 of the Labor Code of the Russian Federation, information about transfers to another permanent job is entered in the employee's work book (see Example 5). At the same time, the transfer record is drawn up no later than a week on the basis of the relevant order (instruction) of the employer (clause 10 of the Rules for maintaining and storing work books, preparing work book forms and providing employers with them, approved by Government Decree No. 225 dated April 16, 2003, hereinafter - Decree No. 225).
Temporary transfer
In this case, we will talk about a temporary change in the labor function of the employee or the structural unit in which the employee works (if the structural unit was indicated in the employment contract), while continuing to work for the same employer (Article 72.1 of the Labor Code of the Russian Federation). At the same time, temporary transfers to another job are regulated by Art. 72.2 of the Labor Code of the Russian Federation.
So, by agreement of the parties, concluded in writing, an employee can be temporarily transferred to another job with the same employer for up to one year.
Please note: if at the end of the transfer period the employee has not been 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.
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.
The procedure for temporary transfers is similar to that for permanent transfers. The exception is that during temporary transfers, an entry in the employee's work book is not made out.
When does translation become mandatory?
Employee-initiated transfer
In some cases, the employee has the right to require the employer to temporarily transfer to another job.
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).
Pregnant women and nursing mothers cannot be involved in the following work:
In this case, 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 a pregnant woman is given another position, she is subject to release from work with the preservation of the average earnings for all the days missed as a result of this. 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).
Transfer at the initiative of the employer and due to circumstances beyond the control of the parties
In some cases, labor legislation allows the dismissal of employees only when it is impossible to transfer them to another job available to the employer, which the citizen can perform taking into account his state of health. We are talking here about both vacant positions or work corresponding to the qualifications of the employee, and vacant lower positions or lower-paid work. In this case, the consent of the employee must be obtained. Please note that the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other areas only if it is provided for by the collective agreement, agreements, labor contract (Articles 81, 83 and 84 of the Labor Code of the Russian Federation). We are talking about the dismissal of employees in the following cases:
- reduction in the number or staff of employees of an organization, an individual entrepreneur (clause 2, article 81 of the Labor Code of the Russian Federation);
- inconsistency of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification (clause 3 of article 81 of the Labor Code of the Russian Federation);
- reinstatement at work of an employee who previously performed this work, by decision of the state labor inspectorate or court (clause 2, article 83 of the Labor Code of the Russian Federation);
- disqualification or other administrative punishment, excluding the possibility of the employee fulfilling obligations under an employment contract (clause 8, article 83 of the Labor Code of the Russian Federation);
- expiration, suspension for a period of more than two months or deprivation of an employee of a special right (license, right to manage vehicle, the right to bear arms, other special rights) in accordance with the law, if this entails the impossibility for the employee to fulfill his obligations under an employment contract (clause 9, article 83 of the Labor Code of the Russian Federation);
- termination of access to state secrets, if the work performed requires such access (clause 10, article 83 of the Labor Code of the Russian Federation);
- violation of the rules established by law for concluding an employment contract, if this violation was not committed through the fault of the employee and excludes the possibility of continuing work (clause 11, article 77 of the Labor Code of the Russian Federation).
We also remind you that an employee who needs to be transferred to another job in accordance with a medical report, with his written consent, the employer is obliged to transfer to another job he has that is not contraindicated for this citizen for health reasons. Meanwhile, if the specified person 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). However, during the suspension wage the employee is not charged. 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 the first part of Article 77 Labor Code Russian Federation (Article 73 of the Labor Code of the Russian Federation).
As a rule, in all the above cases, the employer sends the employee an appropriate notification or proposal to transfer the employee to the vacancies he has (see Example 6).
As a rule, the consent or disagreement of the employee in the transfer is drawn up in a separate document or is prescribed in the proposal for transferring to another job (see Example 7).
We would also like to remind you that according to Art. 74 of the Labor Code of the Russian Federation, in the case when, for reasons related to changes in organizational or technological working conditions, the terms of the employment contract determined by the parties cannot be saved, they can be changed at the initiative of the employer, with the exception of changing the labor function of the employee. Moreover, if the employee does not agree to work in the new conditions, the employer is obliged to offer him another available job in writing. With absence said work or the employee refuses the proposed work, the employment contract is terminated in accordance with paragraph 7 of the first part of Article 77 of the Labor Code of the Russian Federation.
In some situations, an 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 the following cases or eliminate their consequences. We are talking about natural or man-made disasters, industrial accidents, accidents at work, fires, floods, famine, earthquakes, epidemics or epizootics, as well as 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 for a period of up to one month to another job is also allowed in cases of downtime, the need to prevent the destruction or damage to property, or to replace a temporarily absent employee, if these situations are caused by the emergency circumstances indicated above. At the same time, transfer to work requiring lower qualifications is possible only with the written consent of the employee himself (Article 72 of the Labor Code of the Russian Federation). Please note that for temporary transfers carried out in exceptional cases, remuneration is made according to the work performed, but not lower than the average earnings at the previous place of employment.
Note
When applying Art. 72.2 of the Labor Code of the Russian Federation, which allows the temporary transfer of an employee to another job without his consent, it should be borne 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 (paragraph 17 of the decision of the Plenum of the Supreme Court dated March 17, 2004 No. 2).
The transfer of an employee is also possible for the period of suspension of work due to the suspension of activities or a temporary ban on activities due to violation of labor protection requirements through no fault of the employee. At this time, the employee, with his consent, can be transferred by the employer to another job with wages for the work performed, but not lower than the average earnings at the previous place of activity (Article 220 of the Labor Code of the Russian Federation).
Transfer to another locality
Transfer procedure
In this case, the employer sends the employee an offer to transfer to work in another locality. Further, the consent or disagreement of the employee is drawn up in a separate document or prescribed in the transfer proposal itself.
With the consent of the employee, changes to the employment contract should be made. This is done through the signing of an additional agreement. To process the transfer, form No. T-5 or form No. T-5a, approved by Decree No. 1, is used. Then, on the basis of the order, marks are made in the employee’s personal card (form No. T-2 or No. T-2GS (MS)) and personal account ( form No. T-54 or No. T-54a).
Note
The arbitrators in paragraph 16 of the decision of the Plenum of the Supreme Court dated March 17, 2004 No. 2 noted that “other locality” should be understood as an area located outside the administrative-territorial boundaries of the corresponding settlement.
Please note that when an employee moves to work in another locality, the employer is obliged to reimburse him for the following expenses (Article 169 of the Labor Code of the Russian Federation):
- for the relocation of the employee, members of his family and the transportation of property (except for cases when the employer provides the employee with appropriate means of transportation);
- 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. In this case, compensation payments to a citizen in connection with his moving to work in another locality are not subject to personal income tax (clause 3 of article 217 of the Tax Code of the Russian Federation) and unified social tax (subclause 2 of clause 1 of article 238 of the Tax Code of the Russian Federation), and can also be taken into account as part of other expenses (subclause 5, clause 1, article 264 of the Tax Code of the Russian Federation). Financiers also agree with this position (letters of the Ministry of Finance dated July 14, 2009 No. 03-03-06 / 2/140 and dated December 17, 2008 No. 03-03-06 / 1/688). At the same time, according to officials, the amounts reimbursed by the organization to a housing worker are subject to personal income tax and unified social tax in the usual manner (letters of the Ministry of Finance of July 13, 2009 No. 03-04-06-01 / 165 and of December 17, 2008 No. 03-03-06/1/688).
Employee refusal to transfer
The refusal of an employee to transfer to work in another locality together with the employer is the basis for the termination of the employment contract (clause 9, article 77 of the Labor Code of the Russian Federation). In this case, as in the case of a regular 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 (see Example 8).
On the day of dismissal, the employee, in addition to the amounts due, is paid a severance pay in the amount of two weeks of average earnings (Article 178 of the Labor Code of the Russian Federation). At the same time, an increased amount of severance pay may be established by labor or collective agreements (Article 178 of the Labor Code of the Russian Federation).
In this case, we are talking about the termination of the contract in accordance with paragraph 9 of the first part of Article 77 of the Labor Code (see Example 9).
Further, upon receipt of the work book, the employee signs in a personal card, as well as in the book of accounting for the movement of work books and inserts in them (clause 41 of Resolution No. 225). At the same time, the entry made in the work book is repeated in the personal card (clause 12 of Resolution No. 225).
Footnotes
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The practice of concluding fixed-term employment contracts is quite common. And there seems to be nothing incomprehensible about this, the main thing is that there are legal grounds for concluding such an agreement and that the employee is notified of its termination in time so that the agreement does not turn into an open-ended one. However, it is still not easy to resolve some issues. In particular, there are difficulties with the transfer of a person working under a fixed-term employment contract to another position. A serious problem can also arise when concluding a fixed-term contract for the period the employee is on parental leave. Let's try to figure out how best to act in such situations, and tell you what the judges say about this.
Key points
The grounds for concluding a fixed-term employment contract are named in Art. 59 of the Labor Code of the Russian Federation. At the same time, there are grounds when it is mandatory - labor relations cannot be established for an indefinite period (part 1 of the article) - and when such an agreement can be concluded by agreement of the parties (in the cases listed in part 2 of the article). There are also grounds provided for by other federal laws, for example, Federal Law No. 79-FZ of July 27, 2004 “On the State Civil Service Russian Federation».
A fixed-term employment contract must indicate the period of its validity and the circumstances (reasons) that served as the basis for its conclusion for a certain period (paragraph 4, part 2, article 57 of the Labor Code of the Russian Federation).
If it is impossible to determine the period, then according to Art. 59 of the Labor Code of the Russian Federation, the contract indicates a period of time - for example, in cases of performing specific work, the duties of an absent employee, seasonal work. Otherwise, it will be considered a prisoner for an indefinite period.
Relations under a fixed-term employment contract are terminated (by virtue of Article 79 of the Labor Code of the Russian Federation) with the expiration of its validity. Moreover, the agreement concluded:
for the duration of a certain work, - terminates upon its completion;
for the duration of the performance of the duties of an absent employee, - terminates with his return to work;
for execution seasonal work during a certain period (season), - terminates at the end of this period (season).
The employee must be notified in writing about the termination of employment relations due to the expiration of the contract at least three calendar days before the dismissal, except for cases when the contract concluded for the period of performance of the duties of the absent employee expires.
Transfer of "conscript" to another job
A variety of situations related to the transfer of a worker under a fixed-term employment contract are possible. Let's consider the most common.
Situation 1. The employee is hired under a fixed-term employment contract, the expiration date of which has been set. In the process of work, it became necessary to transfer the employee temporarily to another position, to the place of the absent employee. However, while he was working in another position, his employment contract expired. Will the term of the contract be automatically extended by the term of the temporary transfer?
Of course not. If you do not warn the employee about the end of a fixed-term employment contract at least three calendar days in advance, it will become indefinite and upon the exit of the second employee, you will have to provide the first with the same place of work, but already as a permanent one.
In this case, there are two options.
1. Conclude an additional agreement to a fixed-term employment contract on changing its expiration date.
If the contract cannot be extended, only the second option remains.
2. Terminate a fixed-term employment contract with an employee at the end of its validity period and conclude a new fixed-term employment contract for the second position.
Situation 2. An employee working under a fixed-term employment contract is transferred to another position temporarily. But at the end of the transfer, the employer did not offer the employee the previous position and he remained to work in the new one. Is it legal at the end of the employment contract?
By virtue of h. 1 Article. 72.2 of the Labor Code of the Russian Federation, if at the end of the transfer period the employee was 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 it is considered permanent.
If you turn to judicial practice, then the courts, for example, consider: when an employee working under a fixed-term contract was transferred to another position permanently, then it is possible to dismiss him at the end of the term of the contract only if there are grounds for concluding a fixed-term employment contract in accordance with Part 1 and 2 tbsp. 59 of the Labor Code of the Russian Federation or other federal laws (see Appellate ruling of the St. Petersburg City Court dated February 15, 2015 No. 33-207 / 2015). We believe that a similar approach is also applied in the case when the condition of the agreement on the temporary nature of the transfer becomes invalid and the transfer becomes permanent.
Situation 3. An employee with whom an employment contract has been concluded for an indefinite period is temporarily transferred by the employer to another position in the place of a temporarily absent employee, with whom, in turn, a fixed-term employment contract was concluded. Can a transferred worker be fired at the end of a fixed-term contract for a temporary position?
Dismissal due to the expiration of the employment contract (clause 2, part 1, article 77 of the Labor Code of the Russian Federation) in this case is illegal by virtue of the same article. 72.2 of the Labor Code of the Russian Federation. If an employee was temporarily transferred to another position with the same employer to replace a temporarily absent one, the “conscript” must be provided with the previous position when the employee for whom the transfer was made returns to work or when the employment contract for this position with the “conscript” terminates.
The law guarantees the employee the preservation of his previous job at the end of the temporary transfer period (see the appeal rulings of the Moscow City Court dated June 26, 2013 in case No. 11-14538, the St. Petersburg City Court dated February 4, 2015 No. 33-1976 / 2015 in case No. 2 -2876/2014).
When the "conscript" replaces the "conscript"
The situation when an employee goes on maternity leave, and then on parental leave, and an employee under a fixed-term employment contract is taken in her place, is very common. But the following situation, on the contrary, is not common: the second employee also goes on maternity leave, and then to care for the child, and the next employee is registered in her place under a fixed-term contract; then the very first employee working on an indefinite contract leaves without waiting for the end of the parental leave.
Thus, two temporary workers remain. With which of them should the employer draw up an indefinite employment contract, because they are in an equal position? On what basis and whom to dismiss if the event associated with the initial conclusion of a fixed-term employment contract has not occurred?
Article 59 of the Labor Code of the Russian Federation allows you to set the term of labor relations, in particular, for the period of fulfillment of the duties of an absent employee, for whom, in accordance with labor legislation and other acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract, the place of work is retained . At the same time, the term condition in the employment contract is written something like this: “This employment contract is urgent and is concluded in accordance with par. 2 hours 1 tbsp. 59 of the Labor Code of the Russian Federation for the period of fulfillment of the duties of an absent employee, who, in accordance with the labor legislation of the Russian Federation, retains a place of work - a mathematics teacher Ivanova M.N., who is on leave to care for a child until he reaches the age of three years, until the exit her from said vacation.
If an employee was hired under a fixed-term employment contract during parental leave, then when the main employee leaves the vacation, the employer must issue a temporary dismissal on the basis provided for in paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation (due to the expiration of the employment contract).
Note: in this case, the general rule to warn the employee about the expiration of the employment contract in writing at least three calendar days before the dismissal does not apply (part 1 of article 79 of the Labor Code of the Russian Federation).
We believe that in such a situation it is more logical to draw up an open-ended employment contract with the first “conscript” and conclude an agreement with her in accordance with Art. 72 of the Labor Code of the Russian Federation, which recognizes the condition on the term of the employment contract as invalid.
As for the second employee, it all depends on what was the basis for concluding a fixed-term employment contract. But here there are no uniform requirements, everyone writes differently: some - “during the absence of the main worker”, others - “during the absence of a temporary worker”. We believe that neither one nor the other is correct and can create problems in the future. When concluding an employment contract with a third employee, it should be indicated that he (she) is accepted for the period of absence of a temporary employee, but before the main employee starts working.
So, if necessary, you will also have to conclude an agreement with the second “conscript” on amending the employment contract: make a condition according to which the term of her contract will end at the time the first “conscript” returns to work from parental leave.
Is it possible to fire both conscripts? It is possible, but for this the main employee must go to work for at least one day (which, in principle, she will still have to do in order to formalize her dismissal). After all, the courts consider the establishment of the fact of a real return to work of the main employee in connection with the early termination of parental leave legally significant for the correct resolution of cases on the reinstatement of employees dismissed under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation (Appeal ruling of the Novosibirsk Regional Court of August 25, 2016 in case No. 33-8531/2016).
Thus, if the main employee first came out of parental leave, and then quit, then both "conscripts" can be fired due to the expiration of the employment contract.
In conclusion, a few tips on how to deal with such situations so that the case does not go to court. If you want to transfer an employee with whom a fixed-term employment contract has been concluded to another position temporarily, do not forget to indicate the transfer period in the agreement and notify the employee of the end of this period and the provision of the previous job. And remember that the transfer can be carried out only with the consent of the employee (not counting some cases established by Article 72.2 of the Labor Code of the Russian Federation).
In addition, if you need to transfer an employee to another position, you can, in order not to complicate your life (and if the employee does not mind), terminate one fixed-term employment contract and conclude another one for a new position. Mistakes made in the transfer procedure can lead to the fact that a fixed-term employment contract becomes indefinite.
In any case, first try to negotiate with employees and resolve difficult situations without a trial.