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Temporary transfer to another job: Labor Code of the Russian Federation. Internal transfers: we process them correctly Temporary transfer to another place of work

2. By agreement of the parties, concluded in writing, the employee may be temporarily transferred to another job with the same employer. The law does not specify specific grounds on which such a transfer is allowed, and therefore it is possible for any reason, including both to a vacant position (place of work) with a given employer, and to replace a temporarily absent employee within the period established by law.

As a general rule, this period should not exceed one year. An exception is established for cases of transfer to another job to replace a temporarily absent employee, who, in accordance with the law, retains his place of work. In this case, the transfer period may be more than one year. It depends on the time the replaced employee returns to work.

The specific period during which the employee will perform work not stipulated by the employment contract is determined by the parties themselves, but within the time limits established by law. Upon expiration of the period of temporary transfer to another job determined by the parties, the employer may, and at the request of the employee is obliged to provide him with the previous job. However, if the temporary transfer period has expired, and the employee does not insist on providing the previous job and continues to work, then the condition on the temporary nature of the transfer loses force. In this case, the job in the position (profession, specialty) to which the employee was temporarily transferred is considered permanent for him and the employer has the right to transfer him to his previous or another job only with his consent.

3. Temporary transfer to another job, provided for in Art. 72.2 should be distinguished from the performance by an employee, on behalf of the employer, of the duties of a temporarily absent employee, along with the work stipulated by the employment contract, in accordance with Art. 60.2 TK.

A temporary transfer is acceptable both to a vacant position (place of work) and to replace a temporarily absent employee whose position (place of work) is retained. In contrast, an employee may perform the duties of a temporarily absent employee only to replace an employee whose position is retained (for example, during a business trip, vacation).

The performance by an employee, on behalf of the employer, of the duties of a temporarily absent employee, along with the work stipulated by the employment contract, in contrast to a temporary transfer to another job, is not limited by any period. This period is determined by agreement of the parties. An agreement between the parties on a temporary transfer to another job cannot be terminated early unilaterally by the employee or the employer, as is the case when performing the duties of a temporarily absent employee (see commentary to Article 60.2).

4. The law establishes, as an exception to the general rule, the possibility of temporarily transferring an employee to another job not stipulated by the employment contract, without his consent. In accordance with the commented article, such a transfer is permitted to prevent extraordinary circumstances specified in parts 2 and 3 of Art. 72.2, or to eliminate their consequences.

The commented article does not contain an exhaustive list of such circumstances, but clearly defines their nature - these are exceptional cases that threaten the life or normal living conditions of the entire population or part of it. These include, in particular, natural or man-made disasters, industrial accidents, accidents, floods, earthquakes, etc. Only such extraordinary circumstances give the employer the right to temporarily transfer employees without their consent to another job and in case of downtime, which is understood as a temporary suspension of work for reasons of an economic, technological, technical or organizational nature, if necessary to prevent destruction or damage to property, as well as to replacing an absent employee (Part 3 of Article 72.2).

In other words, the temporary transfer of an employee without his consent to a job not stipulated by an employment contract can be recognized as legal only if it is necessary due to emergency circumstances that threaten the life or normal living conditions of the entire population or part of it. If the need for a temporary transfer is caused, for example, by equipment breakdown, untimely delivery of raw materials or materials, etc., and this is not related to emergency circumstances provided for in Part 2 of the commented article, then such a transfer is permitted only by agreement of the parties.

As explained by the Plenum of the Supreme Court of the Russian Federation in Resolution No. 2 of March 17, 2004, when applying Parts 2 and 3 of Art. 72.2 of the Labor Code, which allows the temporary transfer of an employee to another job without his consent, courts should keep in mind that the obligation to prove the existence of circumstances with which the law connects the possibility of such a transfer rests with the employer (clause 17).

5. Transfer to another job due to emergency circumstances threatening the life or normal living conditions of the population is not limited to any number of times - it depends on the occurrence of these circumstances. This rule also applies to cases of temporary transfer to another job to replace an absent employee due to emergency circumstances. However, the duration of one (each) transfer to another job without the employee’s consent in cases where such a transfer is necessary due to emergency circumstances threatening the life or normal living conditions of the population should not exceed one month.

However, this does not mean that an employee can be transferred due to the above circumstances (including to replace a temporarily absent employee) to another job requiring lower qualifications. Such a transfer is permitted only with the written consent of the employee.

6. In all cases provided for in Art. 72.2, temporary transfer is allowed only with the employer with whom the employee has an employment relationship. Moreover, when transferring an employee to another job without his consent, i.e. in cases provided for in Parts 2 and 3 of Art. 72.2, wages must be paid according to the work performed, but not lower than the average earnings for the previous job.

Transfer to another job that is contraindicated for the employee for health reasons is not allowed, including in connection with emergency circumstances provided for

TEMPORARY TRANSFER: SAMPLE STEP-BY-STEP PROCEDURE (GENERAL)

According to Part 1 of Art. 72.2 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 case where such a transfer is carried out to replace a temporarily absent employee, whose position is retained in accordance with the law work - until this employee goes 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 can be “oral”. And the parties to the negotiations come to an agreement on a temporary transfer.

The idea of ​​a temporary transfer may also be in writing, but this is not necessary.

1.1. If the employee himself comes up with the initiative to temporarily 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 established by the employer, for example, in the employee applications register.

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


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

The procedure for familiarizing yourself 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 signatures confirming familiarization and the dates of familiarization (such sheets are stitched together with the local regulatory act),

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

A certain procedure for familiarizing yourself with local regulations may be enshrined in the act itself. Find out your employer's procedures for familiarizing employees with local regulations before you begin introducing them to the employee.


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

The agreement and contract are drawn up in two copies (one for each party), unless more copies are provided for a given employer.


4. Registration of the transfer agreement and an agreement on full financial liability in the manner established 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 financial liability - in the journal of registration of agreements on full financial liability with employees.


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

The employee’s receipt of a copy of the agreement should be confirmed by the employee’s signature on the copy of the agreement, which remains in the custody of the employer. We recommend that you put the phrase “I have received a copy of the agreement” before your signature.

If an agreement on full financial responsibility is signed with the employee, then one copy of it is also given to the employee.


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


7. Registration of this order (instruction) in the order established by the employer, for example, in the log of orders (instructions).


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

Notes.

* Information about temporary transfer is not entered into 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 in the future, if necessary, confirm that he performed this work.

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

*** Upon expiration of the temporary transfer period, an order may be issued to terminate the temporary transfer period.


  • Book

Sometimes situations arise in organizations that require the transfer of one or more employees to another job. Typically, such a change in the terms of the employment contract is temporary - until the relevant circumstances are eliminated.

Article 60 of the Labor Code of the Russian Federation prohibits an employer from requiring an employee to perform work not stipulated by an employment contract, except in cases provided for by the Labor Code of the Russian Federation and other federal laws.

From the literal interpretation of this norm it follows that certain work that was not initially included in the employment contract of a particular employee can be performed by him, as a general rule, only on the condition that a change is made to the content of the employment contract in the form of an addition to it (additional agreement to the employment contract).

If an employee does not comply with the employer’s order to perform a labor function not stipulated by the employment contract, then the employer does not have the right to bring him to disciplinary liability for this refusal.

Changing the terms of the employment contract

By virtue of Art. 72 of the Labor Code of the Russian Federation, changes in the terms of the employment contract determined by the parties, including transfer to another job, are 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. An agreement to change the terms of an employment contract determined by the parties is concluded in writing.

Based on the norms of the Labor Code of the Russian Federation, an amendment to an employment contract can be made as follows:

Transfer to another job, relocation (Article 72.1 of the Labor Code of the Russian Federation);

Temporary transfer to another job (Article 72.2 of the Labor Code of the Russian Federation);

Transfer of an employee to another job in accordance with a medical report (Article 73 of the Labor Code of the Russian Federation);

Changes in the terms of the employment contract determined by the parties for reasons related to changes in organizational or technological working conditions (Article 74 of the Labor Code of the Russian Federation);

Temporary transfer to another job in connection with the suspension of a special right for a period of more than two months (Article 76 of the Labor Code of the Russian Federation).

Temporary transfer

In paragraph 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” (as amended on September 28, 2010; hereinafter referred to as Resolution No. 2) it is explained that when applying Part. 2 and 3 tbsp. 72.2 of the Labor Code of the Russian Federation, allowing 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 connects the possibility of such a transfer rests with the employer.

It is necessary to take into account that in accordance with Part 1 of Art. 72.2 of the Labor Code of the Russian Federation (temporary transfer by agreement of the parties) an employee may be temporarily transferred to another job only with the same employer with whom he has an employment relationship, and work should not be contraindicated for him due to health reasons.

Please note that if, when transferring to another job in the event of downtime, the need to prevent destruction or damage to property, or to replace a temporarily absent employee, the employee will be required to perform work lower qualifications, then such a translation by virtue of Part 3 of Art. 72.2 of the Labor Code of the Russian Federation is possible only with the written consent of the employee.

Extract from the Labor Code of the Russian Federation

Article 72.2. Temporary transfer to another job

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 case where such a transfer is carried out to replace a temporarily absent employee, whose place of work is retained in accordance with the law , - before this employee goes to work. If, at the end of the transfer period, the employee’s previous job is not provided, and he did not demand its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer loses force 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 threatening the life or normal living conditions of the entire population or part of it, the employee may be transferred without his consent for a period of up to one month to work not stipulated by the employment contract with the same employer in order to prevent these cases or eliminate their consequences.

Transfer of an employee without his consent for a period of up to one month to a job not stipulated by an employment contract with the same employer is also permitted in cases of downtime (temporary suspension of work for reasons of an economic, technological, technical or organizational nature), the need to prevent destruction or damage to property or temporary replacement an absent employee, if downtime or the need to prevent destruction or damage to property or to replace a temporarily absent employee is caused by emergency circumstances specified in part two of this article. In this case, transfer to a job requiring lower qualifications is permitted only with the written consent of the employee.

When transfers are made in cases provided for in parts two and three of this article, the employee is paid according to the work performed, but not lower than the average earnings for the previous job.

The employee’s right to refuse a transfer

It should be taken into account that, by virtue of Art. 219 and 220 Labor Code of the Russian Federation the employee cannot be subject to disciplinary action:

For refusal to perform work in the event of a danger to his life and health due to violation of labor protection requirements, with the exception of cases provided for by federal laws, until such danger is eliminated;

Refusal to perform heavy work and work with harmful and (or) dangerous working conditions not provided for in the employment contract.

Refusal to perform work during a transfer carried out in compliance with the law is recognized as a violation of labor discipline, and absence from work is considered absenteeism.

At the same time, the Labor Code of the Russian Federation does not prohibit an employee from refusing a temporary transfer for the reasons given above, including in cases where such a transfer does not require the employee’s consent (Article 72.2 of the Labor Code of the Russian Federation).

Features of registration of a temporary transfer

A temporary transfer to another job is formalized by order (instruction) of the employer in the unified form No. T-5 (or T-5a) (approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1).

A temporary transfer to another job should be distinguished from the performance by an employee, on behalf of the employer, of the duties of a temporarily absent employee, along with the work stipulated by the employment contract.

In the latter case, the period of transfer is not limited by law and is determined by agreement of the parties. In this case, an employee who temporarily replaces an absent employee is subject to, in accordance with Art. 60.2 and 151 of the Labor Code of the Russian Federation, an additional payment, the amount of which is established by agreement between the employee and the employer.

V. V. Semenikhin,
Head of the Semenikhin Expert Bureau

In this article we will tell you how a HR manager can formalize the transfer of employees to another job. We will 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 location 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 a structural unit in which the employee works (if the structural 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 (Art. 72.1 of the Labor Code of the Russian Federation). Transfers can be temporary or permanent, at the initiative of the employee and at the initiative of the employer, with the consent of the employee and without his consent.

For your information

In this case, structural divisions should be understood as branches, representative offices, as well as departments, workshops, areas, etc. (Clause 16 of the resolution of the Plenum of the Supreme Court dated March 17, 2004 No. 2).

Please note that transfer to another job is permitted only with the written consent of the employee (Article 72.1 of the Labor Code of the Russian Federation). The exception is some cases of temporary transfer, to which we will further pay special attention. 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).

Let us note that the employee’s consent will not be required to move him from the same employer to another workplace, to another structural unit located in the same area, or to assign him 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 prohibited to transfer or relocate an employee to work that is contraindicated for him due to health reasons.

Also, at the written request of the employee or with his written consent, it can be carried out.

Please note: if a transfer to another job is declared illegal, the employee must be reinstated to his previous place of business. In this case, the body considering the individual labor dispute makes a decision to pay such person the difference in earnings for the entire period of performing lower-paid work. Also, the court has the right, at the request of the employee, to make a decision to recover from the employer monetary compensation for moral damage caused by these actions (Article 394 of the Labor Code of the Russian Federation). Moreover, if the employer delays the execution of the decision to reinstate the employee to his previous job, the body that made the decision makes a determination to pay this citizen the difference in earnings 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 specified 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 complete the transfer, use form No. T-5 or form No. T-5a (see Example 3), approved by Decree of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1 “On approval of unified forms of primary accounting documentation for recording labor and its payment” ( hereinafter referred to as Resolution No. 1).

Based on the order to transfer the employee to another job, marks are made in the section “Hiring, transfers to another job” in the employee’s personal card (form No. T-2 or No. T-2GS(MS)) (see Example 4) and personal account (form No. T-54 or No. T-54a).

  • To whom: kadry@site
  • Subject: Free consultations

When issuing an order to transfer an employee to another job (form No. T-5, approved by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1 “On approval of unified forms of primary accounting documentation for recording labor and its payment”), HR officers often have a question: “Which document should be indicated in the line “Base: amendment 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 HR Department of Burevestnik LLC, Nizhny Novgorod

Vladimir Pirogov, lawyer at Nikline LLC, answers:

In the line “Base: amendment to the employment contract dated...” details of the additional 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 is 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 specified in the employment contract), while continuing to work for the same employer, as well as transfer to another job to another location with the employer. And the place of work and the employee’s labor function 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 changes to the terms of an employment contract determined by the parties, including transfer to another job, are allowed only by agreement of the parties to the employment contract, which is concluded in writing.

Consequently, 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 use and completion of forms of primary accounting documentation for the accounting of labor and its payment in the event that an employment contract was not concluded with the employee (the employee was hired before 10/06/1992) and his hiring was formalized by order, when When filling out the unified form No. T-5, in the line “Bases”, specific documents are indicated on the basis of which the employee will be transferred to another job (application, medical report, memo, etc.), and the details “Change to the employment contract” are not filled in.

In accordance with Art. 66 of the Labor Code of the Russian Federation, information about transfers to another permanent job is entered into the employee’s work book (see Example 5). In this case, a record of the transfer is made 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, producing work book forms and providing them to employers, approved by Government Decree No. 225 of April 16, 2003, hereinafter referred to as Resolution No. 225).

Temporary transfer

In this case, we are talking 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 specified 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 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 a period of up to one year.

Please note: if, at the end of the transfer period, the employee’s previous job is not provided, and he did not demand its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer loses force and the transfer is considered permanent.

When such a transfer is carried out to replace a temporarily absent employee, whose place of work is retained in accordance with the law, it is valid until the employee returns to work.

The procedure for temporary transfer 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.

In what cases does translation become mandatory?

Transfer at the initiative of the employee

In some cases, an employee has the right to demand from the employer a temporary 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 at their request, are transferred to another job that excludes the impact of unfavorable production factors, while maintaining the average earnings for their previous job. Before a pregnant woman is given another position, she is subject to release from work with preservation of average earnings for all days missed as a result. Meanwhile, women with children under the age of one and a half years, if it is impossible to perform the previous job, 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 Labor Code of the Russian Federation). Also, pregnant women and women with children under three years of age 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, as well as 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 vacancies available in the given area that meet the specified requirements. An employer is obliged to offer vacancies in other localities only if this is provided for by a collective agreement, agreements, or employment contract (Articles 81, 83 and 84 of the Labor Code of the Russian Federation). We are talking about dismissal of employees in the following cases:

  • reduction of the number or staff of employees of an organization, individual entrepreneur (clause 2 of 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 certification results (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 of article 83 of the Labor Code of the Russian Federation);
  • disqualification or other administrative punishment that precludes the employee from fulfilling his duties under the employment contract (Clause 8 of 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 drive a vehicle, the right to carry a weapon, other special right) in accordance with the law, if this entails the impossibility of the employee fulfilling his duties under the employment contract ( clause 9 of 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 of 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 the fault of the employee and excludes the possibility of continuing work (clause 11 of 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 available job that is not contraindicated for this citizen for health reasons. Meanwhile, if the specified person needs a temporary transfer for a period of up to four months, refuses the transfer, or the corresponding job is not available, then the employer must suspend the employee from work for this period while maintaining the place of work (position). However, during the period of suspension, the employee’s wages are not accrued. 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 the transfer or the employer does not have the appropriate work, the employment contract is terminated in accordance with paragraph 8 of part one of Article 77 of the Labor Code of the Russian Federation (Article 73 Labor Code of the Russian Federation).

As a rule, in all of the above cases, the employer sends the employee a corresponding notice or proposal to transfer the employee to his existing vacant positions (see Example 6).

As a rule, the employee’s consent or disagreement with the transfer is formalized in a separate document or stated in the very proposal to transfer to another job (see Example 7).

I 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 preserved, they can be changed at the initiative of the employer, with the exception of changes in the employee’s labor function. Moreover, if the employee does not agree to work under the new conditions, the employer is obliged to offer him another available job in writing. If there is no specified work or the employee refuses the proposed work, the employment contract is terminated in accordance with paragraph 7 of part one 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 the employment contract with the same employer in order to prevent the cases indicated below or eliminate their consequences. We are talking here about natural or man-made disasters, industrial accidents, industrial accidents, fires, floods, famines, earthquakes, epidemics or epizootics, as well as any exceptional cases that threaten the life or normal living conditions of the entire population or part of it .

Transferring an employee without his consent for a period of up to one month to another job is also permitted in cases of downtime, the need to prevent destruction or damage to property, or to replace a temporarily absent employee, if these situations are caused by the emergency circumstances specified by us above. At the same time, transfer to a job 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, wages are paid according to the work performed, but not lower than the average earnings at the previous place of employment.

For your information

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 connects the possibility of such a transfer rests with the employer (clause 17 of the resolution of the Plenum of the Supreme Court of March 17, 2004 . No. 2).

The transfer of an employee is also possible for the duration of the suspension of work in connection with the suspension of activities or a temporary ban on activities due to violation of labor protection requirements through no fault of the employee. During 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 his previous place of activity (Article 220 of the Labor Code of the Russian Federation).

Transfer to another location

Transfer procedure

In this case, the employer sends the employee an offer to transfer to work in another location. Next, the employee’s consent or disagreement is formalized in a separate document or written down in the transfer proposal itself.

If the employee agrees, changes should be made to the employment contract. This is done through the signing of an additional agreement. To complete the transfer, use Form No. T-5 or Form No. T-5a, approved by Resolution No. 1. Then, based on 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).

For your information

The arbitrators in paragraph 16 of the resolution 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 relevant locality.

Please note that when an employee moves to work in another area, the employer is obliged to reimburse him for the following expenses (Article 169 of the Labor Code of the Russian Federation):

  • for relocation of the employee, members of his family and transportation of property (except for cases where the employer provides the employee with appropriate means of transportation);
  • for settling into 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 move to work in another area 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 from 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 amount of reimbursement by the organization of expenses to an employee for renting housing is subject to personal income tax and unified social tax in the usual manner (letters from the Ministry of Finance dated July 13, 2009 No. 03-04-06-01/165 and dated December 17, 2008 No. 03-03-06/1/688).

Employee refusal to transfer

An employee’s refusal to be transferred to work in another location together with the employer is grounds for termination of the employment contract (Clause 9 of Article 77 of the Labor Code of the Russian Federation). In this case, as with regular dismissal, to formalize the termination of employment relations with employees, Form No. T-8 (or Form No. T-8a), approved by Resolution No. 1, is used (see Example 8).

On the day of dismissal, the employee, in addition to the amounts due, is paid severance pay in the amount of two weeks' average earnings (Article 178 of the Labor Code of the Russian Federation). At the same time, labor or collective agreements may establish an increased amount of severance pay (Article 178 of the Labor Code of the Russian Federation).

In this case, we are talking about termination of the contract in accordance with paragraph 9 of part one of Article 77 of the Labor Code (see Example 9).

Further, upon receipt of the work book, the employee signs in the personal card, as well as in the book recording 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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As the most significant type of change in an employment contract in accordance with Art. 72" of the Labor Code of the Russian Federation means a permanent or temporary change in the labor function of an employee, a structural unit in which the employee worked (if it was specified in the employment contract) while continuing to work for the same employer, as well as a transfer to another location together with the employer. This is not a change. of the employment contract, the transfer of the employee, at his request or with his consent, to another employer for a permanent job, since in accordance with Part 2 of Article 72 of the Labor Code of the Russian Federation the employment contract terminates.

Labor legislation (Article 60 of the Labor Code of the Russian Federation) prohibits the employer from requiring the employee to perform work not stipulated by the employment contract, therefore, as a rule, transfers are allowed only with the consent of the employee, except in cases established by law.

It is necessary to distinguish from transfer to another job moving employee from the same employer to another workplace, to another structural unit in the same area, assignment of work on another mechanism or unit. The transfer does not require the employee's consent. It will take place if the parties, when concluding an employment contract, did not specifically stipulate a workplace (mechanism, unit), or structural unit as conditions of the employment contract.

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

At temporary transfer for other work, the parties to the corresponding transaction give rise to two interrelated consequences: the original (main) obligation is suspended for a certain period with the emergence of a new (temporary) obligation. Upon expiration of the appropriate period, the temporary obligation is terminated, and the parties resume the exercise of rights and obligations under the original legal relationship. This type of transfer can be carried out by agreement of the parties, at the initiative of the employer, and in some cases at the initiative of the employee.

by written agreement parties are allowed for a period of up to one year. If the parties agreed on a transfer in order to replace a temporarily absent employee, whose job remains in accordance with the law (for example, in connection with parental leave), the duration of the transfer will be determined upon the fact that the replaced employee returns to work. If, after the expiration of the temporary transfer, the employee continues to work, the transfer is considered permanent. With such a temporary transfer, the right of the absent employee to resume the work previously performed must be respected.

The legislator provides a number of grounds for the temporary transfer of an employee to another job at the initiative of the employer, which are divided into three groups. The first group of grounds includes circumstances related to extraordinary(natural or man-made disasters, accidents, other emergency situations that threaten the life or normal living conditions of the entire population or part of it), in the presence of which the employer has the right to unilaterally transfer the employee without his consent for another job, including without taking into account specialty or qualifications, for a period of up to one month to prevent relevant circumstances or eliminate their consequences.

Another group of bases is associated with production needs of the employer(in cases of downtime, the need to prevent destruction or damage to the employer’s property, replacing a temporarily absent employee). The procedure for carrying out such a temporary transfer depends on the reason that gave rise to the production need. So, if it is caused by the previously mentioned extraordinary circumstances (for example, downtime due to flooding of production premises due to flooding), then a temporary transfer is allowed without the employee's consent for up to one month. However, if the temporary work requires lower qualifications, the employer is obliged to obtain the employee’s written consent to such a transfer. If production necessity is caused by other reasons, temporary transfer is permitted in the general manner by agreement of the parties.

The third group of grounds includes temporary transfers of an employee to another job in connection with a medical report (Article 73 of the Labor Code of the Russian Federation). If the conclusion of a medical and social examination institution establishes that the employee needs a temporary transfer to another job for a certain period (but not more than four months in a row), and the employee refuses the transfer or the employer does not have a suitable job, then the employee for the entire period , specified in the conclusion, is subject to suspension from work.

Temporary transfer to another job should be distinguished from business trip. Firstly, a business trip is a trip by an employee by order of the employer for a certain period of time to carry out an official assignment outside the place of permanent work (Article 166 of the Labor Code of the Russian Federation). It is mandatory for the employee, and an unreasonable refusal of it can be considered a violation of labor discipline, and a temporary transfer, as a general rule, is possible only with the consent of the employee (by agreement of the parties). Secondly, unlike a business trip, a temporary transfer can be carried out in the same area and place of work. Thirdly, a business trip involves the fulfillment of a specific official assignment, and not the assignment of any other duties. In turn, a temporary transfer to another locality or to another place of work (including when the employee’s consent is not required) means that he must regularly perform a labor function during the entire period of transfer during the working hours established for him. Fourthly, in the case of a business trip, the provisions of local regulations of the organization where the official assignment is carried out are not applied to the employee, unless otherwise provided by local regulations or by order of the employer who sent him. In the case of a temporary transfer, local regulations apply to the employee in the general manner.

Permanent translation for another job, as a rule, is carried out by agreement of the parties to the employment contract. Motives for permanent transfer can be: promotion at work at the request of the employee; the employer's need to strengthen the department's staff; assessment of the employee’s professional achievements or, on the contrary, his insufficient qualifications; reduction in the employee’s ability to work; etc. In particular, if an employee, for health reasons, in accordance with the conclusion of a medical and social examination institution, needs to be permanently transferred to another job that is not contraindicated for him for health reasons, then the employer, if he has the appropriate job, is obliged to transfer the employee with his consent.

In the absence of such work or the employee’s refusal to transfer, the employment relationship is terminated.

Temporary transfer to another job at the initiative of the employee is an exception to the general rules and is provided by law as a guarantee primarily for pregnant women (Article 254 of the Labor Code of the Russian Federation), if, according to a medical report, continued work in certain production conditions may adversely affect the health of the mother or child. Such a transfer is carried out on the basis of a medical report at the request of a pregnant woman while maintaining the average salary. If the employer does not have a job suitable for a pregnant woman, she is released from work while maintaining the average wage for all working days missed due to this.


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