Temporary transfer within the organization at the initiative of the employer.

The employee may betemporarily transferred with his consent for another job for a period up to one year. If the transfer is needed to replace a temporarily absent employee, whose place of work is retained in accordance with the law, - then the translation will be before this employee returns to work . (For example, in place of a person on maternity leave or on sick leave or on vacation.)

If the transfer period has ended, and you were not given the previous job, and you did not demand to return and continue to work, then the transfer is considered permanent (Part 1 of Article 72.2 of the Labor Code of the Russian Federation. Agreement of the parties is concluded in writing)

Remember! In accordance with the Labor Code of the Russian Federation, Art. 72.1 and 72.2 without yours written consent from you Dont Have the right to transfer to a lower position than you previously held (except for the cases specified in Part 2 of Article 72.2 of the Labor Code of the Russian Federation). With your consent, you can be transferred to a lower position, firstly, for a period of up to 1 month, and secondly, your payment must be no less than the average earnings for your previous job.

But! Let's look at situations in which the employer has the right transfer the employee to another job not stipulated by the employment contract, without his consent for a period of up to one month (Part 2 of Article 72.2 of the Labor Code of the Russian Federation).

These are the cases:

— a natural or man-made disaster;

— industrial accident;

- accident at work;

- fire;

- flood;

- hunger;

- earthquake;

- epidemic or epizootic;

- other exceptional cases that threaten the life or normal living conditions of the entire population or part of it.

Also, Part 3 of Article 72.2 of the Labor Code of the Russian Federation provides for a number of situations in which a temporary transfer of an employee is possible without his consent for a period of up to one month, namely:

— downtime (temporary suspension of work for reasons of economic, technological, technical or organizational nature);

— the need to prevent destruction or damage to property;

— replacing a temporarily absent employee

You can refuse the transfer. However! If you unreasonably refuse a transfer in the above situations, then this will be regarded as a disciplinary offense, and absence from work - as absenteeism (clause 19 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation "), If:

— a danger to your life and health arose due to a violation of labor protection requirements (except for cases provided for by federal laws) until such a danger is eliminated;

— the transfer is carried out to perform heavy work and work with harmful and (or) dangerous working conditions, and they are not provided for in the employment contract.

Attention! The duration of a temporary transfer of an employee to another job without his consent cannot exceed one month. But during the calendar year, such transfers can be made by the employer more than once .

The employee is paid depending on the work he performs, but not lower than the average earnings that he received at his previous place of work (Part 4 of Article 72.2 of the Labor Code of the Russian Federation for transfers that were made in the cases specified in Parts 2 and 3 of Article 72.2 of the Labor Code of the Russian Federation ).

Remember! If you are transferred to a job that requires lower qualifications, for the reasons set out in Part 3 of Article 72.2 of the Labor Code of the Russian Federation, then the employer must obtain written consent from you for such a transfer in any case, for example, if in the event of an emergency the accountant is charged with duties clean up the trash, then his consent to this transfer necessary.

How in practice should a temporary transfer be processed in the HR department?.

1. Employer orally or through a Transfer Offer offerstransfer to the employee.

2. The worker gives written agreement for translation (statement of consent to translation or phrase in the Proposal: I agree with the translation - date-signature).

3. The employee is introduced to his job description or other documentation related to his new position for signature.

4. The employer draws up an Addendum (agreement) to the employment contract on the transfer. The addition (agreement) to the employment contract is drawn up in 2 copies, both signed by both the employee and the head of the organization.

5. One copy remains with the employer, the second is given in person employee. In the first copy (which remains with the employer), the employee writes the phrase: “ I received the addition (agreement) to the employment contract - date-signature").

6. The employer issues an order to transfer an employee in the form T-5 (on the transfer of an employee) or T-5a (on the transfer of employees), approved by Resolution of the State Statistics Committee of the Russian Federation No. 1 of 01/05/2004. on the basis of the concluded Addendum to the employment contract, and its content must strictly comply with the conditions specified therein. The employee gets acquainted with the Order for signature.

The order must contain the number and date of registration of the order, as well as the signature of the manager.

7. If you do not agree with the transfer and refuse to read the order against signature, the employer draws upact of refusal to familiarize yourself with the order.

8. Remember! Information about temporary transfer Not are entered in your work book, so I recommend that you take a duly certified copy of the temporary transfer order so that you can confirm in the future that you performed this work.

9. At the end of the temporary transfer period, the employer must issue an order about the end of the transfer period and the employee returning to work in his previous position. The employee reads the order for signature, the order must contain the number and date of registration of the order, as well as the signature of the manager.

How to arrange a temporary transfer that does not require consent employee.

1. The manager issues an order for temporary transfer in form No. T-5 or T-5a indicating the reason for the transfer in the line called “reason for transfer”. The order must be supported by relevant documents, for example: testimonies of eyewitnesses and emergency service employees, various documents: written statements from employees about downtime due to the fault of the employer due to equipment malfunction, acts of emergency, order of the head of the organization on measures to eliminate the consequences of the accident, etc.

otherwise you may refuse the transfer. You must read the order for signature. The order must have a number registration, date and signature of the manager.

2. You must be familiarized with the job description and safety regulations for signature.

3. You have the right to refuse a transfer if you believe that labor safety requirements have been violated at the new place of work and this threatens your life or health. In this case, you write a statement in free form, in which you provide arguments that serve as the basis for refusing the transfer.

4. Make a copy of the order with your signature.

Sometimes an employee has to be transferred to another job for some time. Such a need can be caused by a number of reasons - medical indications, production needs, etc. However, not everything is so simple with the transfer procedure. For example, some people confuse a transfer with a transfer and do not formalize it properly or underpay wages when transferring to a lower-paid position. You will learn in what cases temporary transfers are possible, how to distinguish them from transfers, in what amount to pay the temporarily transferred employee and how to document all this by reading the article.

Instead of a preface

According to Art. 72.1 Labor Code of the Russian Federation transfer means a permanent or temporary change in the labor function of the employee and (or) the structural unit in which the employee works, while continuing to work for the same employer, as well as transfer to work in another location together with the employer.

Please note that a change in a structural unit will be considered a transfer only if its name was fixed in the employment contract (for example, in the form of the phrase “The employee is hired as an accountant in the financial and economic department”).

Since today we are considering temporary transfers, it is worth noting that they can be carried out either with or without the employee’s consent.

Temporary transfer with the consent of the employee

To carry out a temporary transfer, an agreement must be concluded in writing. The employer first offers the employee a vacant position or a position where an absent employee needs to be replaced. Then, if agreed, an additional agreement is concluded on a temporary transfer to another job, position or to another structural unit.

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

Note that due to Part 4 Art. 72.1 Labor Code of the Russian Federation It is prohibited to transfer or relocate an employee to work that is contraindicated for him due to health reasons. That is, if there are no medical contraindications and the employee agrees, then he can be temporarily transferred to work even with harmful or dangerous working conditions.

When concluding a transfer agreement, fix in it the basis for the transfer, its duration, the employee’s new responsibilities, as well as other conditions that differ from those established by the employment contract.

Let's talk separately about the wording of the transfer deadline. If a temporary transfer is carried out to a vacant position, you can determine a specific end date for the transfer, and if to replace a temporarily absent employee, it is better to indicate the condition upon the occurrence of which the employee returns to his workplace, because the absent employee may return to work later (for example, when extending vacation or certificate of incapacity for work). For the latter case, the wording may be as follows: “This additional agreement is valid until the date of the leading specialist E. D. Gulkina’s return to work from maternity leave.”

Based on the agreement signed by the parties, a transfer order is issued in the unified form T-5 1] (T-5a). It is important to indicate in the “Type of transfer” line that the transfer is temporary. The employee must be familiarized with such an order against signature.

The next step in registering a temporary transfer will be to make an entry about it in section. III personal card “Hiring and transfers to another job” (form T-2 or T-2 GS (MS)).

But an entry about a temporary transfer is not made in the work book. This rule has been established Part 4 Art. 66 Labor Code of the Russian Federation And clause 4 of the Rules for maintaining and storing work books, according to which only entries about permanent transfers are made in the work book.

note

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

Note that the employer should control the end of the temporary transfer, since due to Part 1 Art. 72.2 Labor Code of the Russian Federation, if at the end of the transfer period the employee’s previous job is not provided, and he did not demand its provision and continues to work, then the condition on the temporary nature of the transfer loses force and the transfer is considered permanent. In this regard, the question arises: is it necessary to somehow formalize the provision of the previous job? Labor legislation does not contain requirements for processing the return of an employee. In the meantime, we recommend doing this. Usually, for this purpose, an order (instruction) is issued to terminate the performance of duties in a temporary position and return to the performance of duties in the main position. He might look like this.

State Autonomous Institution of the Arkhangelsk Region

"Sports Training Center"

Arkhangelsk

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

I ORDER:

1. Olga Viktorovna Pshenitsyna, who temporarily, by agreement of the parties dated 04/04/2014 No. 2, held the position of deputy head of the sports teams support department, to begin work stipulated by the employment contract dated 06/12/2010 No. 10-06, as the chief specialist of the sports teams support department teams, since August 21, 2014

2. The accounting department will accrue O. V. Pshenitsyna’s wages in accordance with the staffing schedule for the position of chief specialist in the department for supporting sports teams.

Director Zlakov I. I. Zlakov

I have read the order. Pshenitsyna, 08/20/2014

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

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

Example

By agreement of the parties, from February 3, 2014, the employee of the State Budgetary Institution was transferred to the position of foreman of the road maintenance section for six months. After this period, the parties signed an agreement that the transfer is considered permanent. How to make an entry in the work book?

№ records	date			Information about hiring, transfer to another permanent job, qualifications, dismissal (indicating reasons and reference to the article, clause of the law)	Name, date and number of the document on the basis of which the entry was made
	number	month	year
1	2			3	4
…	…	…	…	…	…
				State budgetary institution
				Vladimir region "Management
				highways"
8	09	12	2012	Hired as a leader	Order dated 12/09/2012
				specialist expert.	№ 22
9	03	02	2014	Transferred to the position of chief	Order dated 02/03/2014
				work acceptance department	№ 16*
				for repairs and maintenance	Order dated July 28, 2014
				highways.	№ 47**

*
Temporary transfer order.

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

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

Temporary transfer without employee consent

As we have already understood, as a general rule, a temporary transfer, as well as a transfer on a permanent basis, is made by agreement of the parties to the labor relationship. However, the Labor Code makes an exception for some cases. So, an employee can be transferred without his consent to work not stipulated by an employment contract with the same employer in order to prevent or eliminate the consequences:

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

The period for transferring an employee without his consent cannot exceed one month.

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

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

However, it is worth considering that for a transfer in these cases, both the simple and the need to prevent destruction or damage to property or to replace a temporarily absent employee must be caused by the emergency circumstances specified above.

Plenum of the RF Armed Forces in Resolution No. 2 noted that if, when transferring to another job in case of downtime, the need
to prevent destruction or damage to property or to replace a temporarily absent employee, the employee will be required to perform work of a lower qualification, then such a transfer will take effect Part 3 Art. 72.2 Labor Code of the Russian Federation is possible only with the written consent of the employee.

The Labor Code does not limit the number of such transfers of an employee during a calendar year, since in these cases unforeseen and urgent work is performed. But if, due to emergency circumstances, it becomes necessary to transfer an employee for a period of more than one month, the transfer is still possible only with the consent of the employee.

We emphasize: if the employer cannot prove the existence of circumstances with which the law connects the possibility of a transfer without the employee’s consent, such a transfer will be considered illegal ( clause 17 of Resolution No. 2 ). Thus, T. has worked as a cardiovascular surgeon at the Pskov Regional Hospital since 1999. By order of the chief physician, he was temporarily transferred without his consent to the clinic of the regional hospital to the position of cardiovascular surgeon, citing the need to fill a vacant position and in order to prevent a threat to the life and health of the population. Believing the employer’s decision to be illegal, T. refused to perform his duties at the clinic, for which he was subjected to disciplinary action in the form of a reprimand. The court declared illegal both the order to impose a disciplinary sanction and the order of temporary transfer. The State Budgetary Institution of Health did not provide evidence of the existence of extraordinary circumstances that necessitated the temporary transfer of the employee without his consent to a job not stipulated by the employment contract. The translation was carried out under the pretext of production necessity in the absence of exceptional cases indicating the real need for such a translation, and therefore the specified translation is illegal (Appeal ruling of the Pskov Regional Court dated October 2, 2012 in case No. 33-1580).

note

Refusal to perform work during a transfer in case of emergency, carried out in compliance with the law, is recognized as a violation of labor discipline, and absenteeism is considered absenteeism ( clause 19 of Resolution No. 2 ). It should be taken into account that, due to para. 5 hours 1 tbsp. 219, part 7 art. 220 Labor Code of the Russian Federation an employee cannot be subject to disciplinary action for refusing to perform work if a danger to his life and health arises due to violation of labor protection requirements, except in cases provided for by federal laws, until such danger is eliminated or from performing heavy work and work with hazardous and ( or) dangerous working conditions not provided for in the employment contract. Since the Labor Code of the Russian Federation does not contain rules prohibiting an employee from exercising this right even when the performance of such work is caused by a transfer on the grounds specified in Art. 72.2 Labor Code of the Russian Federation, the employee’s refusal to temporarily transfer to another job for the above reasons is justified.

A temporary transfer without the employee’s consent must also be formalized. To do this, a transfer order is issued indicating the reasons (catastrophe, industrial accident, etc.). And of course, it is better to support such an order with relevant documents, otherwise the employee may refuse the transfer.

Translation or relocation?

Sometimes an employer confuses a temporary transfer with a relocation and, instead of drawing up an agreement and order for the transfer, issues a relocation order. Let us remember that due to Part 3 Art. 72.1 Labor Code of the Russian Federation moving from the same employer to another workplace, to another structural unit located in the same area, assignment of work on another mechanism or unit, unless this entails a change in the terms of the employment contract determined by the parties , does not require the employee's consent.

Before moving, carefully check the terms of the employment contract - whether it indicates the workplace, structural unit, and whether the employee’s job function will change. Otherwise, labor disputes cannot be avoided. Thus, G., working at the State Unitary Enterprise as a senior accountant, was transferred to the position of accountant. The PMU believed that these positions had similar job functions. Considering the dispute about declaring the transfer order illegal, the court noted: from the employer’s order it follows that in fact there was not a transfer, but a transfer of G. to another position, which entailed a change in the employee’s labor function. These actions were carried out without the consent of G., therefore, the order to move is illegal ( Appeal ruling of the Yaroslavl Regional Court dated April 25, 2013 in case No. 33-2536/2013).

Remuneration for temporary transfer

For transfers made without the employee’s consent (in the cases mentioned in part 2, 3 tbsp. 72.2 Labor Code of the Russian Federation), wages are paid according to the work performed, but not lower than the average earnings for the previous job. That is, if the employee’s wages for the work performed are lower than his previous average earnings, then he is paid the previous average earnings, determined in the prescribed manner.

Well, if the salary for the new job exceeds the average salary of the employee, then he is given an additional payment up to the salary for the new job. Thus, the demands for recovery of lost wages were satisfied by the court: during the period of temporary transfer to another position, the plaintiff performed the duties of an employee of a higher position, therefore, the difference in salary is subject to recovery in his favor ( Ruling of the Perm Regional Court dated September 25, 2013 in case No. 33‑8092).

When a temporary transfer is carried out by agreement of the parties, wages are also determined by agreement of the parties, however, usually when transferring the employee, the salary of the new position is set. If he is transferred to a less qualified job, the parties can agree to maintain the previous salary or to assign an additional payment up to the previous salary.

Temporary transfer for medical reasons

As we found out, a temporary transfer is carried out with or without the employee’s consent. However, according to Art. 73 Labor Code of the Russian Federation the employer is obliged to transfer the employee to another job (position) if he needs it in accordance with a medical report. Moreover, other work should not be contraindicated for the employee due to health reasons.

For your information

A medical report is issued in the manner established by Order of the Ministry of Health and Social Development of the Russian Federation dated May 2, 2012 No. 441 “On approval of the Procedure for issuing certificates and medical reports by medical organizations.” A certificate of temporary incapacity for work is not considered a medical report.

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

If an employee is indicated for a temporary transfer to another job for a period of up to four months, the employer must offer him another job that is suitable for health reasons. In the absence of one or the employee’s refusal, the employer is obliged to suspend him from work while maintaining his place of work (position) for the entire period specified in the medical report. To do this, the employer issues an order in any form. The order should indicate the period for which the employee is suspended; if the period is still not specified, upon admission to work, an order should be issued on the employee’s admission.

If, in accordance with a medical report, an employee needs a temporary transfer to another job for a period of more than four months or a permanent transfer, then if he refuses the transfer or the employer does not have the corresponding job, the employment contract is terminated by clause 8, part 1, art. 77 Labor Code of the Russian Federation- the employee’s refusal to transfer to another job, necessary for him in accordance with the medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the employer’s lack of relevant work. Upon dismissal on this basis, the employee is paid severance pay in the amount of two weeks' average earnings ( Part 3 Art. 178 Labor Code of the Russian Federation).

For your information

According to Art. 254 Labor Code of the Russian Federation Pregnant women, in accordance with a medical report and at their request, are transferred to another job that excludes the impact of unfavorable production factors, while maintaining the average earnings for their previous job. Before being given another job, a pregnant woman is subject to release from work with the preservation of average earnings for all working days missed as a result at the expense of the employer. A similar guarantee is provided for women with children under the age of one and a half years.

Temporary transfer of an athlete

This is a special type of temporary transfer - it can be carried out to another employer. Yes, based on Art. 348.4 Labor Code of the Russian Federation in cases where the employer is not able to ensure the participation of an athlete in sports competitions, it is allowed, by agreement between employers, to temporarily transfer the athlete with his written consent to another employer for a period not exceeding one year. In this case, the employer at the place of temporary work enters into a fixed-term employment contract with the athlete in accordance with the requirements Art. 348.2 Labor Code of the Russian Federation.

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

note

If an athlete, during a temporary transfer to another employer, wants to work part-time, permission for such work must be obtained both from the employer at the place of temporary work and from the employer with whom the employment contract was originally concluded ( part 2Art. 348.7 Labor Code of the Russian Federation).

In case of early termination of an employment contract concluded for the period of temporary transfer of an athlete to another employer, on any of the grounds provided for by the Labor Code of the Russian Federation, the initially concluded employment contract is valid in full from the next working day after the calendar date with which the termination of the employment contract concluded on period of temporary transfer.

If, after the expiration of the period of temporary transfer to another employer, the athlete continues to work for the employer at the place of temporary work and neither the athlete, nor the employer at the place of temporary work, nor the employer with whom the employment contract was originally concluded, demand termination of the employment contract concluded for the period of temporary transfer , and renewal of the initially concluded employment contract, then the latter is terminated and the validity of the employment contract concluded for the period of temporary transfer is extended for a period determined by agreement of the parties, and in the absence of such an agreement - for an indefinite period.

Finally

As you can see, there are plenty of types of temporary transfer and each has its own characteristics. Let us outline the main points again. Firstly, temporary transfers are carried out only within the organization (with the exception of athletes). Secondly, such a transfer is carried out with the consent of the employee. But the Labor Code of the Russian Federation establishes exceptions: the employer can make a temporary transfer for a period of up to one month in the event of preventing emergencies and disasters or eliminating their consequences. And thirdly, the remuneration of workers temporarily transferred without their consent cannot be lower than the average earnings for their previous job.

Approved by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1 “On approval of unified forms of primary accounting documentation for labor accounting and payment.”

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 lawful only on the condition that this is necessary in connection with 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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Based on the provisions of the current labor code, we can roughly distinguish three types of temporary transfers.

First view: to eliminate the consequences of disasters, accidents and other emergencies (fire, flood, explosion and others), if the consequences of such an event threaten the normal living conditions of a population group. Transfer is allowed for a period up to one month.
Please note two features of this translation:

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

Article 72.2 paragraph 2
In the event of a natural or man-made disaster, industrial accident, industrial accident, fire, flood, famine, earthquake, epidemic or epizootic, and in any exceptional cases 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.

Second view: transfer to other areas in case of downtime or to prevent the destruction of material assets or their damage.

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

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

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

Article 72.2 paragraph 3
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.

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

In this case, it is necessary to obtain the consent of the transferred employee.

Article 72.2 paragraph 1
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.

Target

Having familiarized yourself with the types of temporary transfers, you can already imagine a typical situation in which this legal instrument can be used: in a certain area of ​​​​the organization’s activities, a acute staff shortage and from the employer there is no possibility to invite new employees to solve this problem.

To overcome this situation, employees are transferred from less stressful areas that were performing other work. Thus, transferring an employee to another position within the organization temporarily covers the shortage of personnel in a certain area of ​​the company’s activities.

Decor

Changing the labor function for a certain period requires a certain order.

A similar algorithm is applicable when translating temporary employee for temporary job title.

You should start with notification to the employee that it is planned to assign him another job as a temporary transfer.

Worker expresses consent on paper with the upcoming translation. For example, in the form addressed to the director.

It consists of where the parties will specify the terms of the temporary transfer, the name of the new position, the department and the amount of remuneration.

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

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

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

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

In a situation where a temporary transfer was carried out to replace an employee on maternity leave, the documents the exact end date of such a transfer cannot be specified.

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

In this case, the employer needs to show maximum flexibility in order to avoid violation of rights every employee.

Entry into the work book

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

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

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

Situations often arise when an employee remains to work in a new place and after the end of the period temporary transfer. It turns out that the employee will actually work in a new position from one date, and the information in the work book will be entered upon publication. Some HR specialists deal with this situation as follows:

• in column 3, where the unit and position are indicated, they also write the date from which the temporary transfer was made;
• in column 4, reference is made to both orders of the director of the legal entity, approving both temporary and permanent transfer.

Return to previous responsibilities

Temporary transfer, like everything impermanent, presupposes return of the employee to his usual work function.

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

But the absence of such a local document will not interfere the employee to return to his previous position. The fact is that the director’s order, according to which the employee was transferred, had already no longer valid. Consequently, the parties return to their previous position.

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

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