Replacing a temporarily absent employee: temporary transfer

Often in companies there are situations when an employee needs to be transferred to another position temporarily, until the circumstances that caused such a change in the clauses of the employment contract are eliminated - medical indications, production needs, etc. Such a transfer requires proper documentation and recalculation of wages. In this article we will talk about the intricacies of temporary transfer to another job.

Temporary transfer to another job

Differences between temporary transfer and other types of labor functions

The main legislative provisions of a temporary transfer, regardless of its reasons, are defined in Article 72.2 of the Labor Code of the Russian Federation: these provisions apply only if the employee has an employment agreement with the employer and within the same organization with the same employer. If there is a production need to transfer an employee to another employer, then in such a situation completely different rules apply (with the exception of athletes, but more on that below). Temporary transfer, excluding some cases described by federal labor legislation, is made only with the written consent of the employee with the conclusion of an additional agreement.

Article 72.2 of the Labor Code of the Russian Federation, regulating temporary transfer to another job

Temporary transfer and business trip. Firstly, business trips include trips by an employee at the order of the employer for any period of time to carry out business assignments outside his permanent place of permanent work (Article 166 of the Labor Code of the Russian Federation). Such trips are mandatory, and unreasonable refusal from them can be considered a violation of labor discipline, while temporary transfer, as a rule, is possible only with the consent of the employee (by agreement of the parties).

Article 166 of the Labor Code of the Russian Federation. Business trip concept

Secondly, unlike a business trip, it 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 to the employee, that is, it does not entail a change in the essential terms of the employment contract, and a transfer to another location or place of work assumes that the employee regularly performs work duties. functions during the entire period of transfer during working hours.

And fourth: the provisions of local regulations of the company where he carries out instructions from management are not applied to a posted worker, unless otherwise provided by the local regulations of his direct employer. When an employee is transferred temporarily, the effect of local regulations applies to him in the general manner.

Business trips are related to the performance of basic duties, and not a change in job functions

Temporary transfer and part-time work. Do not confuse the temporary transfer of an employee to another job with part-time or part-time work. The definition of part-time work is specified in Article 282 of the Labor Code of the Russian Federation. It means that an employee carries out other paid work activities in his free time from his main job, while the law does not limit the number of such part-time jobs, most importantly, not to the detriment of his main job responsibilities.

Article 282 of the Labor Code of the Russian Federation. General provisions on part-time work

For part-time work, a separate employment contract is concluded indicating that this activity is not the main one. Part-time work happens:

1. Internal, when they work for the same employer, in the same organization.
2. External, if the citizen works in other organizations and with other employers.

Temporary transfer and combination. Let us note that a temporary transfer to another job must be distinguished not only from relocation, but also from the performance by an employee, on behalf of the employer, of the duties of a temporarily absent employee simultaneously with the duties stipulated by the employment contract, that is, combining duties. The concept of “combination” is contained in Art. 60.2 Labor Code of the Russian Federation. Here, the law does not limit the period for fulfilling duties: it is determined by agreement of the parties. In this case, the employee is not released from his main job and performs the duties of another employee during the main time, that is, a large burden falls on the employee. When combined, an employee can perform additional work in different professions. With this type of employment, the law does not require the conclusion of a new employment agreement, which distinguishes part-time work from part-time work. 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 also established by agreement between the employee and the employer.

Article 60.2 of the Labor Code of the Russian Federation. Combination of professions (positions)

Article 151 of the Labor Code of the Russian Federation. Remuneration for combining professions

Translation and relocation. The content of the concepts “temporary transfer” and “relocation” is associated with the concept of labor function. Its definition is described in Article 57 of the Labor Code of the Russian Federation. The labor function is understood as

1) work in a particular position determined by the staffing table, by profession and specialty with the obligatory indication of the employee’s qualification level,

2) the specific type of work activity assigned to the employee.

Definition of labor function specified in Article 57 of the Labor Code of the Russian Federation

That is, both permanent and temporary transfer to another job entails a change in the clauses of the employment agreement, since this changes

1) the employee’s labor functions and (or) the department in the company structure where he works (if the department was specified in the employment contract),

2) the place of work itself, if the employee is sent to work in another area together with the employer, while the employee continues to work for the same employer.

The labor function and place of work are essential terms of the employment contract, and their changes almost always require the consent of the employee, therefore the transfer is formalized by an additional agreement to the employment contract.

Temporary or permanent relocation, for example, transfer of an employee within the same organization to another workplace, assignment of work on another mechanism does not require the consent of the employee, because these actions do not entail a change in labor functions or essential terms of the employment contract (Part 3 of Article 72.1 of the Labor Code of the Russian Federation ). These circumstances are also indicated by the Constitutional Court of the Russian Federation in its ruling dated June 19, 2007 No. 475-О-О. The judges' conclusions were made in relation to the norm of Article 72.1 of the previous edition of the Labor Code, which was in force before the Federal Law No. 90-FZ of June 30, 2006 came into force, but they can be taken into account in relation to the current code. This is explained by the fact that the legal understanding and content of the relationship between the parties to the employment contract during the transfer has not changed significantly.

Article 72.1 of the Labor Code of the Russian Federation. Transfer to another job, relocation

Important! If the employment contract does NOT specify a structural unit, the transfer of an employee from the same employer to another workplace, to another structural unit located in the same area is considered a relocation.

Table 1. Differences between translation and relocation

Important! When moving and transferring, it is prohibited to move an employee to a job that is not suitable for him due to health reasons.

Types and reasons for transfer

The Labor Code provides for temporary and permanent transfers. Temporary work is done for another job, but with the same employer. Such an appointment may be for a period of no more than 1 year. If an employee holds a temporary position for more than this time, the shift becomes permanent. A temporary appointment must be agreed upon with the employee, unless it is due to the following factors:

• a natural or man-made disaster that threatens the life of the entire population or part of it;
• industrial accident;
• industrial accident;
• downtime of equipment or property that may deteriorate due to the absence of an employee;
• downtime of equipment or property that may deteriorate due to man-made or natural reasons.

In such cases, personnel reshuffle can be carried out for a period of no more than one month. However, assignment to work requiring lower qualifications can only be made with the written consent of the employee. As for remuneration, it cannot be lower than the average salary for the previous job.

A permanent transfer can only be made with the consent of the employee. But even in this case, the legislation provides for mechanisms for forced change of position. For example, when an employee can no longer carry out his work activities due to health reasons and this is confirmed by a medical certificate. Another case is when a company is downsizing, resulting in personnel changes.

Please note that the employee’s consent is not required when moving from the same employer to another workplace or structural unit located in the same area. And also when entrusting work with other devices and mechanisms, if this does not contradict the terms of the employment contract.

Types of temporary transfer

Lawyers distinguish the following types of translation:

• permanent - to another job/relocation (Article 72, 72.1 of the Labor Code of the Russian Federation), we have already written about its features in one of the articles;
• temporary - by agreement of the parties (part 1 of article 72.2 of the Labor Code of the Russian Federation);
• to replace an absent employee (part 1 of article 72.2 of the Labor Code of the Russian Federation);
• temporarily at the initiative of the employer (part 2, 3 of article 72.2 of the Labor Code of the Russian Federation);
• translation in accordance with a medical report;
• to another location together with the employer (Part 1 of Article 72.1 of the Labor Code of the Russian Federation), both temporary and permanent;
• temporary transfer to another job due to suspension of special rights (Article 76 of the Labor Code of the Russian Federation).

  Article 76 of the Labor Code of the Russian Federation. Suspension from work

Important! As soon as the circumstances of the temporary transfer cease to apply, the employee is returned to his previous place. If the employee’s previous job is not provided, and he does not require it and continues to work at the place of transfer, then the agreement on the temporary nature of the work loses force, and the previously completed transfer becomes permanent. All rules for registering a permanent transfer apply to it - from drawing up an additional agreement to making an entry in the work book, and the date of transfer is considered the first day of the temporary transfer.

Let us note that such behavior of the employer is erroneous when the employee was dismissed after the end of the transfer period, since another employee was hired in his previous place. It is worth remembering that during a temporary transfer, the employee retains his job and he has the right to return to it after the expiration of the transfer period. This case was considered by the Russian Constitutional Court. The conclusion made by the judges is contained in the Determination of the Constitutional Court of the Russian Federation dated December 24, 2013 No. 1912-O, where the court explains that in Art. 72.2 of the Labor Code of the Russian Federation provides for cases of temporary transfer to another job, while by written agreement of the parties, an employee can replace a temporarily absent employee, and in accordance with regulatory legal acts, his place of work is retained until this employee returns to work. At the end of the transfer period, the employee is guaranteed the return of his previous position; if the employee did not occupy it and did not demand its provision and continues to work at a temporary place of work, then the condition of the agreement on the urgent nature of the transfer loses force and the transfer is considered permanent.

Table 2. Documentation of temporary transfer

Video - Temporary and permanent transfers to another job

Let's take a closer look at some of the features of temporary transfer of employees to another job.

Temporary transfer becomes permanent

A temporary transfer means that the employee will only need to perform duties in this position for a limited period of time, specified in the additional agreement and order. Such a transfer may become permanent if management misses the deadline and the person continues to work in a temporary position. He is not given his previous job, and this employee does not raise the issue of a reverse transfer.

In this case, the legislation does not oblige the parties to enter into an additional agreement; the position is assigned to the employee as if “automatically,” however, the conclusion of a new additional agreement is desirable. It records information that a temporary position is permanent from a certain date, and an order is issued. The permanent transfer must be recorded in the work book, and the transfer date will be the one from which the temporary transfer period began.

Results

Temporary internal transfer of an employee in the vast majority of cases requires his consent. If an emergency occurs, it can be carried out without the employee’s consent. If, as a result of a transfer due to an emergency, an employee will have to perform lower-skilled work than before, consent is still required.

Translation is different from displacement. When relocating, there are no changes to the working conditions reflected in the employment agreement, and the employee’s consent to the relocation is not required.

When transforming a temporary transfer into a permanent one, it is advisable to conclude another additional agreement and issue a new transfer order.

Temporary transfer with the consent of the employee

Temporary transfer to another job can be carried out by written agreement of the parties. 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. The period is up to one year, and if the transfer occurs to the position of a temporarily absent employee - until he appears in the service. This temporary approach is now being used to temporarily fill a vacant position until a permanent employee takes it.

With a temporary transfer, it is also possible to change the salary amount. This is an essential condition of the employment contract, and the law imposes restrictions on its changes. Limits allowed by part 4 of Art. 72.2 of the Labor Code of the Russian Federation are defined as follows: wages must be no lower than the average earnings for the previous job. In addition, the same clause stipulates the prohibition of transferring an employee to a job that is contraindicated for him for health reasons. But, if the employee has the consent, then he can be transferred to work with harmful or dangerous working conditions.

As for documenting a temporary transfer to another job, the employer issues an appropriate order (instruction) containing information about the reasons for the temporary transfer, labor functions, payment terms and the duration of this transfer.

Unified form T-5 (order to transfer to another job)

Download the unified form T-5 in .rtf format: Order on transfer to another job (form T-5).

If a temporary transfer is carried out to a vacant position, it is better to determine the expiration date of the transfer, and if to replace a temporarily absent employee, it is worth determining the condition upon the occurrence of which the employee will return to his previous job, since the absent employee may return from vacation or sick leave later.

Important! If an employee is transferred to another job or position, he must be familiarized with the job description and other local regulations that are relevant to the performance of this work. In addition, it may be necessary to conduct training in TY or conclude an agreement on financial liability.

How to write a transfer order

Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1 approved the forms of various documents, including an order to transfer an employee to another position (form T-5). The use of such forms is not mandatory. You can use another order form developed by the organization, or the sample offered for downloading at the end of the article.

The order must be prepared in case of both temporary and permanent transfer.

The following data is entered into the order for transfer to another position:

1. Company name.
2. Date of.
3. Information about the employee - full name, timesheet number.
4. The time period for which the transfer is carried out (start and end dates).
5. The employee's position in which he worked before the transfer.
6. Grounds for transfer (their list is given above. An example is the most common ground, such as replacing a temporarily absent employee).
7. The name of the new position to which the employee is transferred.
8. The amount of remuneration for the employee after the transfer.
9. Data on the basis document - an additional agreement to the contract with the employee.

Thus, an order to transfer an employee can be drawn up either on a free form, taking into account the above information that must be reflected in it, or on a form in the T-5 form. At the same time, it is necessary to clearly understand the differences between translation and displacement.

Temporary transfer of an employee without the employee’s consent

Let us note that the written consent of the parties is almost always required, with the exception of situations provided for in parts 2 and 3 of Art. 72.2 of the Labor Code of the Russian Federation (their list is exhaustive). Such extraordinary circumstances include natural or man-made disasters, accidents and industrial accidents, cataclysms, widespread livestock diseases, epidemics and other exceptional cases that threaten people’s lives or the normal conditions of their existence - in these cases, the employer can transfer the employee to a job not provided for by work contract for work for a period of up to 1 month to prevent these cases or eliminate their consequences.

The second group of circumstances under which it is possible to transfer an employee without consent is dictated by production necessity. At the initiative of the employer, a temporary transfer is carried out during downtime, and also, if it is necessary to prevent destruction or damage to property, to replace any employee who is temporarily absent, if these cases are caused by emergency circumstances. If new job functions require lower qualifications, such a transfer is permitted only with the written consent of the employee.

Forced transfer of an employee is possible to eliminate an accident or man-made disaster

Important! The employer’s initiative in such cases is limited only by a very vague wording, which is not specified in labor legislation - in this case we are talking about exceptional situations that threaten “the life or normal living conditions of the entire population or part of it.” In this part, some employers may abuse their right.

If the transfer period exceeds the limit established for temporary transfers, then even in situations of urgent need, the transfer is carried out only with the written consent of the employee. Labor legislation does not indicate anywhere the number of temporary transfers of an employee per year, since in such exceptional cases work is carried out that cannot be foreseen or postponed.

The Plenum of the Supreme Court of the Russian Federation commented on the application of parts 2 and 3 of Art. 72.2 of the Labor Code of the Russian Federation, which allow the urgent transfer of an employee to another job without his consent: the court once again clarified that the obligation to prove the existence of reasons on the basis of which the transfer can be made is assigned to the employer.

An example from judicial practice . Thus, S. has worked as a cardiovascular surgeon at the Pskov Regional Hospital since 1999. By order of the head physician, he was temporarily transferred without his consent to the clinic of the regional hospital to the position of cardiovascular surgeon. The reason for the transfer was the need to fill a vacant position and in order to prevent a threat to the life and health of the population. Considering such a transfer illegal, S. refused to perform his duties at the clinic. For this they were subjected to disciplinary action in the form of a reprimand. The court declared both the reprimand order and the temporary transfer order illegal, since the management of the institution did not provide evidence of the existence of extraordinary circumstances that explained the need for a temporary transfer without the employee’s consent (appeal ruling of the Pskov Regional Court dated October 2, 2012 in case No. 33-1580).

In terms of remuneration in a situation of forced temporary transfer, the state guarantees the following:

1. If the wages for the new work performed exceed the average for his usual job, then he is paid the wages for the work performed (in fact, an additional payment is added to his previous salary).
2. If the wages for work performed as a temporary transfer are lower than the employee’s average earnings for his previous job, then he is paid his previous average earnings, determined in the prescribed manner).

Let us note that the employer has the right (but this is not an obligation) to provide additional financial incentives to employees who are temporarily transferred to another job without their consent.

Important! If an employee refuses to perform work during a legitimate transfer, then in this case he violates labor discipline; in case of absenteeism, such behavior is recognized as absenteeism.

Right to refuse forced transfer

On the basis of Part 1 of Article 219, Part 7 of Article 220 of the Labor Code of the Russian Federation, a disciplinary sanction cannot be imposed on an employee for refusal to perform duties if there is a danger to his life and health due to violation of labor protection requirements, until such danger is eliminated and except in cases provided for federal legislation. An employee also has the right to refuse, without consequences, to perform work of a difficult nature, with harmful and (or) dangerous working conditions, if they are not provided for in the employment contract. Let us note that the Labor Code of the Russian Federation does not contain articles that prohibit employees from using the above right even in the situation of an employee’s refusal to temporarily transfer to another job.

Article 219 of the Labor Code of the Russian Federation, part 1. Employee rights in the field of labor protection

Article 220 part 7 of the Labor Code of the Russian Federation, guaranteeing the impossibility of bringing an employee to disciplinary liability for refusing to perform duties in unfavorable working conditions

Temporary transfer of an employee due to health reasons

In accordance with Art. 73 of the 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. A medical report is issued in accordance with the procedure established by Order of the Ministry of Health and Social Development of the Russian Federation dated May 2, 2012 No. 441. A sick leave certificate is not considered a medical report. Such a transfer is also carried out with the written consent of the employee. When receiving a medical report from an employee, you must pay attention to the transfer period indicated in the certificate, since the employer’s further actions depend on this.

Article 73 of the Labor Code of the Russian Federation. Transfer to another job in accordance with a medical report

If an employee is indicated for a temporary transfer to another job for a period of up to 4 months, the employer must offer him another job that is suitable for health reasons. If there is no one or the employee rejects the vacancy, the employer removes him from work, retaining his place of work (position) for the entire time specified in the medical certificate. To do this, the employer issues an order in any form. The order specifies the period for which the employee is suspended. If the period is not specified, upon admission to work, the personnel service issues an appropriate order.

Job offer for an employee requiring transfer due to health reasons

When an employee is transferred to another job in accordance with a medical certificate to a lower-paid job, the employer retains his previous average earnings for a month from the date of transfer, and when transferred due to work injuries or the presence of an occupational disease - until the employee returns to work or permanently loses ability to work (Article 182 of the Labor Code of the Russian Federation).

Article 182 of the Labor Code of the Russian Federation. Guarantees when transferring an employee to another lower-paid job

If an employee who, in accordance with a medical report, needs a temporary transfer to another job for a period of up to 4 months, refuses the transfer or the employer does not have the corresponding job, then the employer is obliged to suspend the employee from work for the entire period specified in the medical report while maintaining his job. (positions). During the period of inadmissibility to work, the employee’s salary is not accrued, except in cases provided for by labor legislation, collective or individual agreements. Please note that if the employer refuses a vacancy or has no vacancies, the employment contract is not terminated, the employee is simply suspended from work, as a rule, without saving his salary.

If, in accordance with a medical report, an employee needs a temporary transfer to another job for a period of more than 4 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 under clause 8 of part 1 of Art. 77 of the Labor Code of the Russian Federation - the employee’s refusal to transfer to another job, which he needs in accordance with a medical report, or the employer does not have the appropriate job. Upon dismissal in this case, the employee is paid compensation - two weeks' average earnings (Part 3 of Article 178 of the Labor Code of the Russian Federation).

Article 77. General grounds for termination of an employment contract

Article 178, part 3 of the Labor Code of the Russian Federation. Payment of severance pay in the amount of two weeks' average earnings

Replacing a temporarily absent employee

In any organization, a situation may arise when an employee is absent for a long time - sick, on vacation or a long business trip, studying outside of work, etc. However, the work must be done. Today we’ll talk about options for assigning the duties of a temporarily absent employee to another employee: we’ll tell you how to formalize such performance of duties, whether it is necessary to make an entry in the work book, and answer questions that arise along the way. The Labor Code offers more than one option for fulfilling the duties of a temporarily absent employee: - without release from work specified in the employment contract; — temporary transfer; — movement; - part-time job; - fixed-term employment contract. Let's take a closer look at each of these options.

We use the internal resources of the organization

Combination or expansion of service areas. Based on Art. 60.2 of the Labor Code of the Russian Federation, an employee may be assigned to perform, during the established duration of the working day (shift), along with the work specified in the employment contract, additional work in a different or the same profession (position) for additional pay. If additional work is carried out in another profession (position), this will be a combination, and if in the same profession (position) - an expansion of service areas, an increase in the volume of work.

At the same time, Art. 60.2 of the Labor Code of the Russian Federation makes a reservation that in order to fulfill the duties of a temporarily absent employee without release from the work specified in the employment contract, the employee may be assigned additional work either in a different or in the same profession (position).

The period during which the employee will perform additional work, its content and volume are determined by the employer with the written consent of the employee and formalized in an agreement. The same agreement also approves the amount of additional payment for additional work (Article 151 of the Labor Code of the Russian Federation) - either in a fixed amount or as a percentage of the salary (both for the main position and for the position being replaced).

I would like to focus your attention on paying for additional work. The Ministry of Health and Social Development in Letter dated March 12, 2012 N 22-2-897 explained that sometimes the performance of duties of an absent specialist may not be paid. This is possible when the job descriptions of certain categories of employees provide for cases of performing the duties of an absent specialist with a similar job function. In this case, the combination is part of the labor function and is not subject to payment.

Note. If the assigned work in another profession requires additional skills or education, assess whether the employee can perform it without compromising his work, otherwise it is better to use another replacement option.

However, the author does not agree with this position, and here's why. Involvement of an absent employee in the temporary performance of duties at a position must in any case be carried out by the employer issuing an appropriate order (instruction), as required by Explanation of the State Committee for Labor of the USSR No. 30, All-Russian Central Council of Trade Unions No. 39 of December 29, 1965 “On the procedure for paying temporary substitution,” regardless of whether whether the possibility of such involvement is indicated in the employment contract or job description of the employee. In addition, Art. 151 of the Labor Code of the Russian Federation, the establishment of additional payment for performing additional work is also not made dependent on the presence or absence in the employment contract (job description) of an indication of the performance of the duties of the absent employee. Therefore, we believe that the employee for performing additional work is in any case entitled to an additional payment in the amount determined by the parties to the labor relationship.

Based on the agreement, an order is issued. It might look like this, for example:

Limited Liability Company "Vesna"

May 14, 2013 Krasnoyarsk

Order No. 41 On assigning additional work in order to combine positions

Due to the absence of a payroll accountant, Anokhina V.L. due to advanced training with separation from production on the basis of Art. 60.2 and 151 of the Labor Code of the Russian Federation

I order: 1. Instruct the senior accountant Volkova A.S. performing, during the established working hours, along with the work specified in the employment contract, additional work as a payroll accountant for additional payment. 2. Install Volkova A.S. monthly additional payment for performing additional work in order to combine positions in the amount of 12,000 rubles. 3. Determine the period of combination of Volkova A.S. as a payroll accountant from 05/15/2013 to 07/19/2013.

Reason: additional agreement dated May 14, 2013 to the employment contract dated August 5, 2009 N 9-08.

Director Medvedev /Medvedev A.D./

The order has been reviewed by: payroll accountant Anokhin, 05/14/2013 /Anokhina V.L./ senior accountant Volkova, 05/14/2013 /Volkova A.S./

Remember that the employee has the right to refuse to perform additional work ahead of schedule by notifying the employer in writing no later than three working days in advance (Article 60.2 of the Labor Code of the Russian Federation). The employer can also cancel the order to complete it ahead of schedule by notifying the employee of this within the same time frame.

Temporary transfer. A transfer is considered a permanent or temporary change in the labor function of the 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 (Article 72.1 of the Labor Code of the Russian Federation).

More specifically, the procedure for temporary transfers is defined in Art. 72.2 Labor Code of the Russian Federation. In particular, according to this rule, an employee can be temporarily transferred to another job with the same employer for a period of up to one year. If a temporary transfer is carried out to replace a temporarily absent employee, whose job remains in accordance with the law, the period of such transfer may be more than a year (for example, for the period of parental leave for a child under 1.5 years of age).

In any case, a temporary transfer for the period of replacement of an absent employee is permitted only by agreement of the parties, concluded in writing.

The conditions of the temporary transfer and its duration are stipulated by the parties in an additional agreement to the employment contract. Based on such an agreement, a transfer order is issued. Let us remind you that the unified forms of orders established by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 N 1, are not mandatory for use since 2013, therefore a transfer order can be issued in a form approved by the organization. In this case, it is important to indicate in the order the nature of the transfer - temporary and, as a basis, provide the details of the transfer agreement - its date and number. The employee must be familiarized with such an order against signature.

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.

Question: Is the employee’s signature on the temporary transfer order sufficient for the transfer agreement to be considered reached?

No, not enough. A separate document is required - an agreement in which the parties on an equal basis will determine the conditions of the temporary transfer. It is this agreement, signed by both parties to the labor relationship, that is the basis for issuing a transfer order.

Remember that if an employee’s responsibilities change during a transfer, he must be familiarized with the new job description. The same applies to safety regulations (Part 2 of Article 225 of the Labor Code of the Russian Federation). Regarding making an entry in the work book, we will say the following. Neither the Rules for maintaining and storing work books*(1) nor the Instructions for filling out work books*(2) provide for making entries in the work book about temporary transfers. In addition, Art. 66 of the Labor Code of the Russian Federation establishes that information about the employee, the work he performs, transfers to another permanent job and the dismissal of the employee is entered into the work book. Accordingly, there is no need to record a temporary transfer.

The question often arises whether it is necessary to formalize the return of an employee to a permanent place. The Labor Code does not answer this question. However, in order to avoid controversial situations, we recommend sending the employee a notification about the return to work of the main employee, which is drawn up in any form. You can also issue an order to terminate temporary duties and return to your old position. It is compiled in any form.

Moving. To replace a temporarily absent employee, you can use relocation. It, unlike a transfer, does not require the employee’s consent, provided that it is carried out to another workplace, to another structural unit located in the same area, and this does not entail a change in the terms of the employment contract determined by the parties (Part 3 of Art. 72.1 of the Labor Code of the Russian Federation). Without consent, an employee can be moved to work on another mechanism or unit, but subject to the above conditions.

In order to find out whether an employee can be moved, you need to check the employment contract with him. Quite often, employers indicate as the place of work the name of the structural unit in which the employee will work, but meanwhile, in accordance with Art. 57 of the Labor Code of the Russian Federation, it is necessary to name a structural unit only if the employee is accepted into a branch, representative office or other separate unit located in another area.

For your information. By virtue of clause 16 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2 “On the application of the Labor Code of the Russian Federation by the courts of the Russian Federation”, another locality is understood as an area outside the administrative-territorial boundaries of the corresponding locality.

Thus, if a structural unit is specified in an employee’s employment contract, then it will not be possible to move him to another structural unit to replace a temporarily absent employee even without changing the position or job function - this will be a change in the terms of the employment contract determined by the parties and will require the consent of the employee.

We attract external labor

If the responsibilities of the absent employee are extensive, and other company employees are heavily loaded with work, so as not to disrupt the production process, the employer may decide to hire outside workers to replace the temporarily absent employee.

Part-time job. This option for fulfilling the duties of an absent employee is suitable not only for an external employee, but also for employees already working in the company.

So, Art. 60.1 of the Labor Code of the Russian Federation allows you to replace an absent employee for a certain time by registering a part-time job. Article 282 of the Labor Code of the Russian Federation defines part-time work as the performance by an employee of other regular paid work under the terms of an employment contract in his free time from his main job. Moreover, such an employment contract can be concluded both with the same employer (internal part-time job) and with another employer (external part-time job).

An important nuance of part-time work is not only the presence of a separate employment contract, but also the length of working hours. So, by virtue of Art. 284 of the Labor Code of the Russian Federation, the duration of working time for such work should not exceed four hours a day. On days when the employee is free from performing work duties at his main place of work, he can work part-time full time (shift).

Based on Art. 285 of the Labor Code of the Russian Federation, remuneration for persons working part-time is made in proportion to the time worked, depending on output or on other conditions determined by the employment contract. When setting standard assignments for persons working part-time with time-based wages, wages are paid based on the final results for the amount of work actually completed.

To register a part-time job, the employee submits the documents specified in Art. 65 of the Labor Code of the Russian Federation, and a certificate about the nature and conditions of work at the main place of work (Article 283 of the Labor Code of the Russian Federation) - when hiring for hard work, work with harmful and (or) dangerous working conditions. One caveat: the part-time worker does not present a work book, since all entries in it are made by the employer at the main place of work. Therefore, if an employee wants to see an entry in the work book about part-time work, then he needs to submit a document confirming part-time work at the main place of work (Article 66 of the Labor Code of the Russian Federation).

Then an employment contract is concluded, which must indicate that the job is a part-time job. And, of course, other actions are taken to formalize the hiring process: an employment order is issued, a personal card is created (even for an internal part-time worker).

Fixed-term employment contract. If other options for replacing an absent employee are not suitable, you can use another one - concluding a fixed-term employment contract with a new employee. However, in this case it is necessary to take into account the requirements of Art. 58 of the Labor Code of the Russian Federation, on the basis of which a fixed-term employment contract is concluded when employment relations cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation, namely in the cases provided for in Part 1 of Art. 59 Labor Code of the Russian Federation. For our situation, the basis specified in paragraph. 2 part 1 of this article: for the duration of the performance of the duties of an absent employee, whose place of work is retained in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, and an employment contract.

Note! Based on Art. 57 of the Labor Code of the Russian Federation, when concluding a fixed-term employment contract, it is necessary to indicate the start date of work, as well as the period of its validity and the circumstances (reasons) that served as the basis for its conclusion. If this is not done, the contract will be considered concluded for an indefinite period.

When formulating a condition on the duration of an employment contract, it is advisable to indicate not only the duration of the contract, but also its expiration date, since in the future this will help to avoid disputes when terminating the contract due to the end of its term. For example, the wording may be as follows: “This agreement was concluded for the period of training of accountant R.Z. Sorokina. from 03/04/2013 to 06/04/2013.”

But what to do when the end date of work, and even the duration of the contract term itself, is problematic to determine, for example, when replacing an employee during the period of parental leave? In this case, the wording may be as follows: “This agreement was concluded for the duration of Kalmykova I.D.’s vacation. for the care of a child under three years of age.”

When replacing an absentee in this way, the same documents are drawn up as when hiring a regular employee: an employment contract, a hiring order, a personal card. In addition, you need to make an entry about the hiring in the work book, without indicating that the employee was hired for a certain period. This is confirmed by the explanations of Rostrud in Letter dated 04/06/2010 N 937-6-1.

Let us note that an employment contract concluded for the duration of the duties of an absent employee is terminated when he returns to work (Article 79 of the Labor Code of the Russian Federation).

Finally

When the head of an organization is temporarily absent, quite often a person is appointed to perform his duties. And in documents you can often see a signature marked “acting.” Let’s say right away that the position of “acting” does not exist. However, for some time, appoint an “acting” It's still possible.

If the duties will be performed by a person whose job description or employment contract contains a clause on the performance of the duties of a manager or another employee, an appropriate order must be issued for this clause to take effect (the replacement clause in the employment contract means that the employee is obliged to fulfill it only if when another employee will be absent).

If there is no obligation to replace, it turns out that the employee agreed, along with his job responsibilities, to perform additional work in the position of the absent employee, that is, Art. 60.2 of the Labor Code of the Russian Federation and arrange the combination.

In any of these cases, the employee replacing the absent employee must be paid additionally.

Organization of translation for pregnant women

Transfer for medical reasons is regulated by Article 73 of the Labor Code of the Russian Federation, but the special provisions of Article 254 of the Labor Code of the Russian Federation take precedence, since they regulate the specifics of transfers of pregnant women and employees who have children under 1.5 years of age.

Article 254 of the Labor Code of the Russian Federation. Transfer to another job of pregnant women and women with children under the age of one and a half years

If a woman expecting a child has a medical certificate, then she is temporarily transferred to another job that excludes the influence of unfavorable production factors, while she retains her earnings from her previous job. Until another position is provided, the pregnant woman is released from work while maintaining the average earnings for all working days missed due to waiting for a vacancy at the expense of the employer. A similar guarantee is provided for women with children under the age of one and a half years. The latter, if it is impossible to perform the previous job, are also subject to temporary transfer upon their application to another job with wages for the work performed, but not lower than the average earnings for the previous job until the child reaches the age of one and a half years. The employer has no right to refuse to make such transfers.

Transfer proposal for a pregnant woman

If the term of the employment agreement with a pregnant woman expires during her pregnancy and it was concluded during the performance of the duties of the absent employee, then in this case the employer is obliged to offer the employee a new position (Part 3 of Article 261 of the Labor Code of the Russian Federation) for transfer. The law allows the dismissal of a woman at the end of the employment contract during her pregnancy and the impossibility, with her written approval, of transferring before the end of pregnancy to another job that is available to the employer (a free position at the level of the woman’s work experience, lower-level or less paid), Moreover, her state of health allows her to perform the proposed duties. The employer is obliged to offer the pregnant woman all of his vacancies that meet legal requirements in the given area. Company management is obliged to offer vacant positions in other localities if such an option is provided for in a collective or individual agreement.

Art. 261. Guarantees for a pregnant woman and persons with family responsibilities upon termination of an employment contract

If the employee agrees to the transfer, then the parties sign an additional agreement to the old contract with the inclusion of amended clauses (about labor function, place of work, term of the employment contract).

Temporary transfer of an athlete

Unlike other types of temporary transfer, which are carried out only within one organization and employer, this is a special type of temporary transfer - it can be carried out to another employer. So, on the basis of Art. 348.4 of the Labor Code of the Russian Federation, in cases where the employer is not able to ensure the participation of an athlete in sports competitions, a temporary transfer of the athlete with his written consent is allowed to another employer for a period not exceeding one year, and an agreement has been reached between the employers. 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 of Art. 348.2 Labor Code of the Russian Federation. During the transfer, the original employment contract is suspended, but the duration is not interrupted.

Article 348.4 of the Labor Code of the Russian Federation. Temporary transfer of an athlete to another employer

If an athlete wants to work part-time in such a situation, then permission must be obtained from both the main and temporary employers.

If a temporary employment contract is terminated early for any of the reasons provided by law, the contract, the originally concluded contract, is valid in full from the next initially working day after the calendar date with which the termination of the temporary employment contract is associated.

When the period of temporary transfer to another employer expires and the athlete continues to work there, and none of the parties to the agreement demands termination of the temporary labor contract and renewal of the original one, 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 agreement - for an indefinite period.

Temporary transfer due to suspension of special rights

Temporary transfer of an employee whose labor functions are related to the presence of a special right, license, or permit is the responsibility of the employer if this right is suspended for a period of up to two months. These are categories of workers such as drivers, hunters, security guards, ship crew members, etc. The employer must offer employees all vacancies, including lower positions, that the employee can occupy taking into account his state of health. Free places are offered both in the area where the company is located and in another, if this is provided for by the collective and labor agreement. All these proposals are carried out in any form. In this case, an order on suspension from work is not issued, since the employee is transferred to another position. If the employee refuses the offered vacancies, the employer by order removes him from work.

It is also necessary to take into account the fact that if the employment contract defines duties that an employee can perform without special rights, then he is suspended from work only in relation to the performance of specific tasks and functions, and not from work in general.

An employer has the right to terminate an employment contract with an employee who is deprived of a special right for a period of more than two months, but only when he cannot be transferred to other positions (Article 83 of the Labor Code of the Russian Federation). Information about available places in the institution is presented to the employee in the form of an offer in any form. He must write on the document whether he agrees or refuses the vacancy. The legislation does not establish the time for the employee to make a decision, but according to the usual interpretation of Article 76 of the Labor Code of the Russian Federation, the employer is obliged to dismiss the employee immediately after receiving information about the suspension of the special right and the impossibility of transferring him to another job. It follows from this that the employee must agree to a vacant position or refuse it at the time of familiarization with the list of vacant positions. If the transfer is agreed to, no dismissal order is issued; the parties sign an additional agreement to the employment contract, and then a transfer order is issued; in case of refusal, the employee is fired.

Important! The employer is obliged to offer vacancies that are available at the time of suspension (deprivation) of rights, and not those where, for example, the employee is temporarily absent (he is on maternity leave or vacation).

The legal nuances of temporary transfer to another job are not limited to the material described above. Each specific case, if it has become the subject of a legal dispute, may have its own characteristics, therefore, if a particular translation raises more questions, it is better to seek advice from either a professional lawyer specializing in labor relations or the local branch of the State Labor Inspectorate .

Nuances when drawing up an order

When drawing up an order to transfer an employee to another job, you should pay attention to the following points.

1. Under the condition of permanent transfer, the order indicates only the date from which the employee is transferred to another position.
2. If it is temporary, the start and end dates of the move are indicated. If the end date cannot be specified, the end date of the movement is not set. For example, an employee is transferred during the absence of the main employee, the end of the period cannot be determined (the main employee is incapacitated for a long time, the release date cannot be determined) or a pregnant employee is transferred to another place due to a medical report.
3. A stamp is not placed on the order to transfer an employee to another job.
4. According to Article 62 of the Labor Code of the Russian Federation, at the request of an employee, the employer is obliged to provide him with a certified copy of this order.