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Published: 07/22/2016
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Transferring an employee from a part-time job to his main place of work presents certain difficulties for personnel department employees - this procedure has its own characteristic features that must be taken into account when documenting the transfer.
It is much easier to fire a person first and then conclude a new contract with him . However, in this case, the employee’s rights will be infringed - he will lose the vacation period provided by law and other equally important social guarantees and benefits.
The main difficulty is that the transfer procedure or its procedure is not fixed at the legislative level. It is also a problem to make the correct notes in the work book.
- Legislation
- Features of translation For external part-time work
- With internal part-time
Employment of an external part-time worker at the main place of work
The legislation does not provide clear answers about the procedure for such employment. Such legal relations do not fall under the very concept of translation, because according to Art. 72.1 of the Labor Code of the Russian Federation the following amendment applies to it:
- labor function of the employee;
- department or other unit in which he worked;
- areas where work activities take place.
Therefore, the use of the term “translation” to this change in legal relations is not entirely correct.
Usually there are 2 options for action in such a situation:
1. Drawing up an additional agreement to an existing contract, in which the conditions for external part-time work are changed to the conditions for the main job.
2. Dismissal of an external part-time worker with his subsequent employment at the main place of work.
There may be problems with the first option, since the legislation does not clearly regulate such legal relations. In particular, questions may arise about the preparation of the entry in the work book provided for by the relevant standards, etc.
The second option seems to be the most suitable in this situation, since it has a clear legislative basis and is easily documented. But the right to choose remains with the parties to labor relations. Therefore, next we will consider the details of using both options for transferring an external part-time worker to the main place of work.
We recommend that you familiarize yourself with the documentary support for employment in the article “How is hiring an employee formalized?”
Methods for transferring a part-time worker
If an employee quits and expresses a desire to become your permanent employee, then you should carefully consider the registration process. You cannot transfer an employee who does not have reliable evidence of not having a main job. It is legally established that a citizen is prohibited from having two main jobs.
As a rule, in most cases, two common options for transferring a part-time employee are used. Each of them is convenient in one situation or another. To choose the right path, it is advisable to familiarize yourself with both methods.
Drawing up an additional agreement
To document the relevant changes in the legal relationship between the employee and the employer, the following steps should be taken:
1. The parties draw up and sign an agreement on amendments to the employment contract with the employee, which specifies the following:
- the employee’s main job;
- effective date of the changes;
- certain provisions that previously applied to part-time work have become invalid;
- other provisions related to the regulation of the employee’s labor at the main place of work.
2. The employee must hand over to the employer a work book with a record of dismissal from the previous place of main work.
3. The employer needs to issue an order that the employee is hired for the main job and the external part-time job is terminated.
These 3 steps are basic. Additional actions will be:
- making a corresponding entry in the employee’s personal card and familiarizing him with it against his signature;
- making an entry about employment in the work book.
The specific entry in the work book depends on whether the previous employer indicated information about part-time work. Depending on this, the following options are possible:
- in the absence of the specified entry, an employment record must be made from the date of commencement of the main job with the new employer;
- if the specified entry is available, an entry should be made stating that as of a certain date, the work became the main one for the part-time employee.
The indicated options were proposed by Rostrud in a letter dated October 22, 2007 No. 4299-6-1.
Personnel nuances
HR department employees sometimes face difficulties in some issues of re-registration from a part-time worker to a permanent contractor.
For example, there are cases when an employee comes and asks to re-register a part-time job at the main place of work retroactively, because he was fired long ago at his main place of work, but was already working part-time.
The main action that must be performed in any of the methods of transferring from a part-time employee to a permanent employee is dismissal from the main job.
Only after this has been completed can further changes be made.
We tried to explain what legal options there are for transferring from a part-time job to your main place of work.
The correct execution of orders and entries in the work book depends on the HR department employee.
We hope that our recommendations will help you not to make mistakes in this confusing matter.
Attention!
- Due to frequent changes in legislation, information sometimes becomes outdated faster than we can update it on the website.
- All cases are very individual and depend on many factors. Basic information does not guarantee a solution to your specific problems.
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Dismissal of a part-time worker with subsequent employment
To apply this method, the employee must first be fired. To do this, it is advisable to use one of two methods of dismissal:
- By agreement of the parties (Article 78 of the Labor Code of the Russian Federation). As follows from this norm, this basis can be applied at any time with the consent of the employer and employee.
- According to the employee’s statement that he has a desire to quit (Article 80 of the Labor Code of the Russian Federation).
The procedure for applying these grounds is usual. In other words, the fact that a part-time worker will be transferred to the main job through such dismissal does not affect the dismissal procedure.
Then, an employment contract for work at the main place is drawn up, signed and comes into force between the employer and the employee. The next step is to issue an order on the employment of the employee. Based on this order, an entry is made into the work book about hiring.
We will look at the employment procedure in more detail in the next subsection. Regarding the issue of dismissal, it is important to know the following.
The length of service giving the right to leave at the main job will not depend on the length of service of the part-time worker before dismissal. Therefore, upon dismissal, you should fully settle accounts with the employee on this issue, and, if necessary, pay him compensation for unused vacation.
If the work book does not contain information about part-time work, then an entry about the dismissal of a part-time employee should not be made in it. If there was such a record, then the document must include information about the dismissal of the part-time employee.
Whose initiative?
Employees often ask to transform their part-time job into their main place of work. This usually happens orally, and then is formalized in an application addressed to the head of the organization at a part-time job.
This is important to know: How to resign voluntarily for health reasons without working off
But not only the employee can take the initiative. An employer, having learned that a valuable employee has left his main place of work, and wanting him to work for him at his main place of work, can make an appropriate offer.
According to the information available in the HR department, you resigned from your main place of work, individual entrepreneur V.V. Shibanov. In this regard, we suggest that you switch to your main job at Zarya LLC. To do this, we propose to terminate the employment contract for part-time work dated 04/11/2015 No. b/n by agreement of the parties on 07/10/2017, and from 07/11/2017 to conclude an employment contract for the main job as an accountant.
I have read the proposal and received a copy. Ivanova, 07/07/2017
Expert opinion
Polyakov Pyotr Borisovich
Lawyer with 6 years of experience. Specialization: civil law. More than 3 years of experience in drafting contracts.
The employee can express his consent or refusal by drawing up a separate document - an application, or indicate his decision in his own hand on the proposal to transfer to the main place of work.
Employment procedure for a dismissed part-time worker
When concluding an employment contract, an employee applying for a primary job must present:
- ID card (passport);
- work book;
- insurance certificate OPS and other documents provided for in Part 1 of Art. 65 Labor Code of the Russian Federation.
Before signing an employment contract, a new employee at his main place of work must be familiarized with the documentation regulating his work activity (Part 3 of Article 68 of the Labor Code of the Russian Federation). In particular, you need to familiarize yourself with:
- with internal labor regulations;
- the procedure governing the use of personal data;
- regulations on remuneration (if any);
- documentation on labor protection;
- job description, etc.
It is important that the employment contract is signed after reading these documents, and not before.
The employment contract itself must be drawn up in writing in 2 copies. One signed copy will remain with the employer, the other will be given to the employee.
Employment at the main place of work can be formalized under either a fixed-term or an open-ended contract. As a general rule, an open-ended contract is concluded.
If the contract is fixed-term, then when concluding it all conditions and formalities provided for in Art. 58 and 59 of the Labor Code of the Russian Federation. It is important to know that the conclusion of such an agreement in cases not specified in Art. 59, prohibited.
Employment must be accompanied by the publication of a corresponding written order from the employer, which the employee familiarizes himself with under his signature.
Entry in the work book
Making an entry in the work book is a mandatory stage in an employee’s employment, which cannot be ignored or left “for later.”
The corresponding entry is made in the “Work Information” section of the work book. When filling out this document, the following order must be observed:
- in gr. 1 enter the serial number of the entry;
- in gr. 2 digits indicate the date of employment, for example: “11/30/2017”;
- in gr. 3 reflects the name of the organization (full and abbreviated, if any), as well as records about the structural unit and job title;
- in gr. 4 reflects the details of the employment order.
After completing these records, the employer should familiarize the employee with them, recording this fact in the work book and in the personal card in form No. T-2.
IMPORTANT! The employer, in accordance with the law, is responsible for the correctness and timeliness of registration of work books. A violation in this area may become the basis for liability under Part 1 of Art. 5.27 Code of Administrative Offenses of the Russian Federation.
Read more about the procedure for filling out this form in the material “Instructions for filling out work books.”
We recommend that you familiarize yourself with the innovations in this area in the article “Electronic work books - all the pros and cons.”
Results
It is not entirely correct to call the employment of an external part-time worker at the main place of work a transfer, since the concept of transfer in the Labor Code of the Russian Federation is given a slightly different meaning.
There are 2 ways to register. The first is accompanied by the conclusion of an additional agreement, according to which the conditions on external part-time work lose force, and the conditions on the main job, on the contrary, enter into it. The second option is accompanied by the dismissal of the part-time worker and his subsequent employment in the main job.
Both options have their own design subtleties.
If in the second case the general procedure for dismissal and hiring is applied, then in the first it is possible to use methods proposed by Rostrud, but not established by regulations. Therefore, the second option, regulated by the norms of the Labor Code of the Russian Federation, is considered preferable. You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.
