Temporary transfer of an employee: registration and transfer to permanent work

Cases and reasons for temporary transfer to another job

Today, there are several main reasons and grounds for allowing the transfer of an employee to another organization to perform professional duties. Thus, the following will be considered legitimate:

transfer of an employee, which is carried out due to the temporary absence of another employee;
transfer of an employee to another organization, permitted in the event of force majeure circumstances, which include man-made and natural disasters, industrial accidents and other conditions that cause irreparable harm to the life and health of the workforce and the entire population as a whole;
transfer of an employee, which is carried out even if it is necessary due to his state of health. In particular, a temporary transfer to another job may be due to the pregnancy of a woman employee of a hazardous enterprise.

Thus, it should be concluded that a temporary transfer of an employee to another organization can be carried out only if there are specific conditions set out in the Labor Code of the Russian Federation.

Terms of temporary transfers

Temporary transfer of an employee to another job is a fairly regulated process. Therefore, fulfillment of all conditions prescribed in labor legislation is the basis for the agreement between the parties to have legal force and be recognized as legitimate. In particular, it is especially important to take into account the period for which the employee’s transfer to another organization is allowed.

The duration of the temporary transfer of an employee depends on the circumstances that formed the basis for such a change in working conditions. The deadline for the employee’s transfer is negotiated by the two parties to the labor relationship, after which an agreement and the corresponding order are signed by the employer.

If we refer to Art. 72.2 of the Labor Code of the Russian Federation, the period for transferring an employee within one organization can be about one calendar year. However, if the employee’s relocation occurred due to the absence of another employee, for example, for health reasons, then the period during which the agreement of the parties is in force will end on the day the absent specialist leaves.

From this statement it follows that the period for transferring an employee to another workplace may exceed a year, for example, if a woman went on maternity leave to care for a child before he or she reached 3 years of age.

In addition, labor legislation provides for the possibility of transferring an employee to another place, even if the person does not sign the agreement. But in this case, the period cannot exceed 1 calendar month.

However, you should pay attention to the fact that, despite the period for transferring the subject to a new workplace, which is equal to 1 month, the employer can each time issue a new order to transfer the employee, thus extending this time period.

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:

Internal, when they work for the same employer, in the same organization.
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

What's changing	Translation	Moving
Essential terms of the employment contract	Yes, since translation often requires special skills or certain qualifications from a specialist	No
Labor function (profession, specialty, qualification, position)	Yes	No
Terrain	And no, and yes (if we are talking about a case of transfer to another location)	No
Employee consent	Required	No
Entry into the work book	Mainly introduced	Not included
Additional agreement	Is concluded	Not included

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.

Temporary transfer without employee consent

If we turn to the letter of the law, it is possible to transfer an employee to another place of work without obtaining his consent. This possibility is due to a number of reasons, which, in general, copy the grounds for transferring an employee by agreement of the parties:

disasters that can be either man-made or natural;
accident at work or accidents during the performance of professional duties stipulated by the employment contract;
flood, fire or, for example, an epidemic;
other conditions that threaten the lives of the population, including the workforce.

However, when transferring an employee to another place without consent, it is also possible, according to labor legislation, and in cases where:

there is downtime caused by man-made, economic or production problems;
there is a need to preserve the organization’s property and prevent its damage or complete destruction;
It is necessary to temporarily replace an employee of the company.

It should be noted that all these grounds must be determined by an emergency situation, and not by the personal desire of the employer. Only in this case will such a translation be fully justified and legitimate.

Commentary to Art. 72.2 of the Labor Code of the Russian Federation

Comments on articles of the Labor Code will help you understand the nuances of labor law.

§ 1. According to the current labor legislation, all transfers to another job according to their duration are divided into permanent and temporary.

Temporary transfers to another job may take place: 1) to replace a temporarily absent employee; 2) in case of downtime, during temporary substitution; 3) in case of pregnancy and for women with children under 1.5 years of age; 4) for health reasons; 5) for another job during the suspension of work and in other cases.

§ 2. It must be remembered that for each type of temporary transfer to another job, the legislator establishes special rules regarding its duration, payment, etc.

The term of transfer is determined by labor legislation in different ways. So, by virtue of Part 1 of Art. 72.2 of the Labor Code, 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, who, in accordance with the law, is retained place of work - before this employee goes to work. Moreover, 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 temporary nature of the agreement loses force, and the transfer will be considered permanent.

§ 3. Temporary transfer to another job in accordance with Art. 72.2 can be divided into two groups.

The first group should include the translation provided for in Part 2 of Art. 72.2, namely: 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 conditions of the entire population or part of it . In case of such a transfer to another temporary job, the employee may be transferred for a period of up to one month to work not stipulated by the employment contract with the same employer in order to prevent the above cases or eliminate their consequences. Such a transfer is carried out without the consent of the employee.

The second group (Part 3 of Article 72.2) should include the transfer of an employee for a period of up to one month to a job not stipulated by an employment contract with the same employer, which is also allowed in case of downtime, the need to prevent destruction or damage to property, or to replace a temporarily absent employee, if they are caused by emergency circumstances specified in part 2 of the commented article.

The legislator in Part 3 of Art. 72.2 gives the concept of idle time. This is a temporary suspension of work for reasons of an economic, technological, technical or organizational nature.

In case of transfer to a job requiring lower qualifications, it is necessary to first obtain the written consent of the employee.

§ 4. Labor legislation (Article 72.2) limits the possibility of temporary transfer for the listed reasons only by the period, but not by the number of transfers, since such a transfer can occur more than once within a month.

§ 5. The Labor Code of the Russian Federation establishes an important guarantee for workers (Part 4 of Article 72.2). If temporary transfers are carried out in the cases provided for in parts 2 and 3 of the commented article, payment for their labor is made according to the work performed, but not lower than the average earnings for the previous job.

Temporary transfer regulations

As noted above, transferring an employee to another workplace implies compliance with certain regulations, like any other legally significant action:

at the first stage, the employer must notify the employee of the need to transfer the enterprise employee to another workplace. To do this, the employer forms either a written request or outlines the need orally.
Next, an agreement between the parties is formed, modifying the terms of the employment contract, which must be signed by the two parties to the legal relationship. The agreement contains comprehensive information about working conditions: the amount of wages, the length of the working day, the transfer period, etc.
Once the agreement is signed, the employer can issue an order to transfer the employee for a specific period. The order must be presented in a unified form established by the labor legislation of the Russian Federation. In particular, the order is issued in standard form N T-5 or N T-5a.
The order must be sent to the employee for review, after which he certifies that he has read the document with his signature.

However, it should be noted that the regulations for the temporary transfer of an employee, when his consent is not required, have different conditions. In particular, the employer initially issues an official order to transfer the employee, within the framework of which such a need is justified. The order has the same unified form N T-5 or N T-5a.

But in such situations, the order must be supported by additional documents that determine this need. If such documents are missing, the order will not have legal force, and the employee will be able to refuse the transfer legally. If the legal regulations are followed, an additional agreement is signed and attached to the current employment contract.

Cheat sheet for personnel officers: cases of maintaining average earnings for an employee

“HR service and personnel management of the enterprise”, 2009, N 9

Cheat sheet for personnel officers: cases of maintaining average earnings for an employee

All employers, when making payments to employees, most often face questions about the procedure for calculating average earnings. And it’s no secret that for this in different situations it is necessary to use different legal acts. To make it easier for you to navigate the legislation, in this article we will look at what documents regulate the calculation of average earnings, and we will also not ignore the issue of the dependence of payments provided for by the Labor Code of the Russian Federation on the average monthly salary.

Documents regulating the calculation procedure

average earnings

Type of payment	Legal act
Benefits for temporary disability, pregnancy and childbirth for citizens subject to compulsory social insurance in case of temporary disability and in connection with maternity	Regulations on the specifics of the procedure for calculating benefits for temporary disability, pregnancy and childbirth for citizens subject to compulsory social insurance, approved by Decree of the Government of the Russian Federation of June 15, 2007 N 375
Unemployment benefits and scholarships paid to citizens during the period of professional training, retraining and advanced training in the direction of the employment service authorities	The procedure for calculating average earnings to determine the amount of unemployment benefits and scholarships paid to citizens during the period of professional training, retraining and advanced training in the direction of the employment service, approved by Resolution of the Ministry of Labor of Russia dated August 12, 2003 N 62
Vacation pay, downtime pay, travel allowances, etc.	Article 139 of the Labor Code of the Russian Federation, Regulations on the specifics of the procedure for calculating average wages, approved by Decree of the Government of the Russian Federation of December 24, 2007 N 922

Dependence of payments provided for by the Labor Code of the Russian Federation,

from average earnings

Event	Note	Labor Code
Temporary transfers, downtime, failure to comply with labor standards, forced absenteeism
Temporary transfer to another job	When transferring to a job not stipulated by an employment contract, carried out for a period of up to one month, the employee is paid according to the work performed, but not lower than the average earnings for the previous job: - in any exceptional cases that threaten the life or normal living conditions of the entire population or its parts; - in cases of downtime, the need to prevent destruction or damage to property or to replace a temporarily absent employee, if these situations were caused by the above emergency circumstances	Art. 72.2
Transfer of an employee in accordance with a medical certificate to a lower paid job	The average earnings from the previous job are retained for one month from the date of transfer, and in case of transfer due to work-related health damage - until permanent loss of professional ability to work is established or until the employee recovers	Art. 182
Transfer to another job of pregnant women and women with children under the age of one and a half years	Remuneration for the work performed, but not lower than the average earnings for the previous job. Until a pregnant woman is provided with another job that excludes exposure to harmful factors, she is subject to release from work with preservation of average earnings for all working days missed as a result. When pregnant women undergo mandatory medical examinations in medical institutions, they retain the average salary at their place of work.	Art. 254
Baby feeding breaks	To be paid in the amount of average earnings	Art. 258
Failure to comply with labor standards, failure to fulfill labor duties	Failure to comply with labor standards, failure to fulfill labor duties: - through the fault of the employer - remuneration is made in an amount not lower than the average salary of the employee, calculated in proportion to the time actually worked; - for reasons beyond the control of the employer and employee, - the employee retains at least 2/3 of the tariff rate (salary), calculated in proportion to the actual time worked	Art. 155
Downtime	Downtime that occurs: - due to the fault of the employer, is paid in the amount of at least 2/3 of the employee’s average salary; - for reasons beyond the control of the employer and employee, paid in the amount of at least 2/3 of the tariff rate (salary), calculated in proportion to downtime	Art. 157
Time of suspension of work due to suspension of activities or temporary prohibition of activities due to violation of labor safety standards through no fault of the employee	The employee retains his average earnings. During this time, the employee, with his consent, can be transferred to another job with wages for the work performed, but not lower than the average earnings for the previous job	Art. 220
Time of forced absence	Average earnings or the difference in earnings for the entire period of performing lower-paid work are paid	Art. 394
Time of delay by the employer in executing the decision on reinstatement at work	The employee is paid the average salary or the difference in earnings	Art. 396
Passing a mandatory medical examination (examination)	The employee retains his average earnings	Art. Art. 185, 348.3
Donation of blood and its components by an employee	For the days of delivery and the days of rest provided in connection with this, the employee retains his average earnings	Art. 186
Sending athletes and coaches to Russian national sports teams	During the absence of these persons from the workplace in connection with travel to the location of the sports team and back, as well as in connection with participation in sporting events as part of the specified team, their average earnings are retained	Art. 348.6
The period of temporary incapacity for an athlete caused by a sports injury	An additional payment to the temporary disability benefit is made up to the amount of average earnings in cases where the amount of the specified benefit is lower than the athlete’s average earnings and this difference is not covered by insurance payments	Art. 348.10
Guarantees for employees participating in collective bargaining, as well as those elected to trade union bodies and labor dispute commissions
Persons participating in collective bargaining	Released from their main job while maintaining average earnings for a period determined by agreement of the parties, but not more than 3 months	Art. 39
Guarantees for employees elected to labor dispute commissions	Free time from work is provided to participate in the work of the commission while maintaining average earnings	Art. 171
Members of the conciliation commission, labor arbitrators during participation in the resolution of a collective labor dispute	These persons are released from their main job while maintaining their average earnings for a period of no more than three months within one year.	Art. 405
Guarantees for exempt union workers	After the end of their term of office, these persons are provided with the same job, and in its absence, with their consent, another job of equal value. If it is impossible to provide such work due to the liquidation of the organization or the termination of activities by the entrepreneur or the lack of corresponding work, the all-Russian (interregional) trade union retains for this employee his average earnings for the period of employment, but not more than 6 months, and in the case of study or retraining - for a period up to 1 year	Art. 375
Severance pay and compensation upon dismissal of employees
Termination of an employment contract due to violation of the rules for its conclusion	If a violation of the rules for concluding an employment contract was committed through no fault of the employee, then he is paid severance pay in the amount of average monthly earnings	Art. 84
Liquidation of an organization or reduction of numbers or staff	Severance pay is paid in the amount of average monthly earnings. Also, the employee retains his average monthly salary for the period of employment, but not more than 2 months. (for regions of the Far North and equivalent areas - no more than 3 months) from the date of dismissal (including severance pay). By decision of the employment service, the average monthly salary can be maintained for the 3rd month from the date of dismissal (for regions of the Far North and equivalent areas - 4, 5, 6 months)	Art. Art. 178, 318
In case of early termination of an employment contract, the employee’s average earnings are paid, calculated in proportion to the time remaining before the expiration of the notice of dismissal period (2 months)	Art. 180
Seasonal workers are paid severance pay in the amount of two weeks' average earnings	Art. 296
The employee’s refusal to transfer to another job required by him in accordance with the medical report, or the employer’s lack of appropriate work	Severance pay is paid in the amount of two weeks' average earnings	Art. 178
Calling up an employee for military service or sending him to alternative civilian service	Severance pay is paid in the amount of two weeks' average earnings	Art. 178
Termination of an employment contract in connection with the reinstatement of an employee who previously performed this work	Severance pay is paid in the amount of two weeks' average earnings	Art. 178
Refusal of an employee to be transferred to work in another location together with the employer	Severance pay is paid in the amount of two weeks' average earnings	Art. 178
Recognition of an employee as incapable of working in accordance with a medical report	Severance pay is paid in the amount of two weeks' average earnings	Art. 178
Refusal to continue work due to changes in the terms of the employment contract determined by the parties	Severance pay is paid in the amount of two weeks' average earnings	Art. 178
Termination of an employment contract with the head of the organization, his deputies and the chief accountant in connection with a change in the owner of the property	Compensation is paid not less than 3 average monthly earnings of the employee	Art. 181
Termination of an employment contract with the head of an organization in connection with the decision by the owner of the property to terminate the employment contract	Compensation is paid not less than three times the average monthly salary	Art. 279
Vacations, business trips and advanced training
Annual paid vacations and compensation for unused vacations	Paid based on average earnings	Art. 114
Study leaves	Vacations with preservation of average earnings (see table 1)	Art. Art. 173 - 176
Business trips	The employee retains his average earnings	Art. 167
Sending an employee by the employer for advanced training while taking time away from work	The employee retains the average salary	Art. 187

Table 1

Purpose and duration of study leaves

Educational institutions of higher professional education
Passing intermediate certification	In the first and second courses: 40 calendar days each. days
Starting from the third year: 50 calendar days. days
In the second year, when mastering the basic programs in a shortened time: 50 calendars. days
Preparation and defense of diplomas and passing final state exams	4 months
Passing final state exams	1 month
Educational institutions of secondary vocational education
Passing intermediate certification	In the first and second courses: 30 calendar days each. days
Starting from the third year: 40 calendar days. days
Preparation and defense of diplomas and passing final state exams	2 months
Passing final state exams	1 month
Educational institutions of primary vocational education
Exams	30 calendars days within one year
Evening (shift) general education institutions
Passing final exams in grade IX.	9 calendars days
Passing final exams in XI (XII) grade.	22 calendars days

M.Kosulnikova

Chief Accountant

LLC "Galan"

Signed for seal

26.08.2009

Refusal to perform work during translation

Since a temporary transfer is an action permitted by law, an employee’s refusal to perform work will be recognized as a violation of labor discipline. Moreover, if an employee does not return to a new workplace, this is entered into the report card as absenteeism.

However, it should be noted that the Labor Code of the Russian Federation also implies objective situations when an employee can refuse to perform work after his transfer. A similar legal norm is enshrined in Art. 219 and 220 of the Labor Code of the Russian Federation. Thus, disciplinary liability cannot be applied to an employee if:

the performance of official duties poses a threat to his health or life due to violation of labor protection conditions (up to the elimination of all violations of labor standards);
another place of work involves working in difficult conditions, for example, in hazardous production, which is not stipulated in the individual employment contract between the employee and the employer.

Therefore, it should be summarized that such a refusal to perform work during a transfer to another position will be fully justified, since the current labor legislation on the territory of the Russian Federation does not imply a legal norm that would prohibit a person from exercising his legal right.

Temporary transfer of employees to another workplace is a completely legitimate opportunity that is granted to the employer by the current legislation of the Russian Federation. However, such a power will be legally justified only in those situations where the legislative procedure for transfer is fully complied with, and all the rights and interests of the worker are taken into account.

Cheat sheet for personnel officers: cases of maintaining average earnings for an employee

Cases and reasons for temporary transfer to another job

Related documents

Terms of temporary transfers

Differences between temporary transfer and other types of labor functions

Temporary transfer without employee consent

Commentary to Art. 72.2 of the Labor Code of the Russian Federation

Temporary transfer regulations

Cheat sheet for personnel officers: cases of maintaining average earnings for an employee

Refusal to perform work during translation

Author of the article