Temporary transfer of a temporary worker. The rules for transferring to temporary work and its documentary registration when transferring in one organization. Temporary translation: how to apply

V production activities often there is a need to transfer employees. Permanent or temporary transfer to another job is convenient, and sometimes the only one the best option personnel reshuffles.

Translation: concept and its types

A translation is considered to be such changes in working conditions under which the following changes:

labor functions (type of work assigned to an employee in accordance with his profession, position, qualifications);
structural subdivision in one company (if such a unit was indicated when hiring in an employment contract);
the employer and the locality in which the employee worked.

Translation into general order allowed only with the consent of the employee. Without consent, it is possible to temporarily transfer an employee under the following circumstances:

natural or man-made disasters;
industrial accidents;
industrial accident;
earthquake, fire, famine, flood, epizootic or epidemic and in other exceptional cases that endanger normal living conditions or the life of the population.

A temporary transfer, in which the consent of the employee is not required, is possible if the above situations have caused:

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

Translation in all these cases can be carried out only for the purpose of preventing or eliminating the consequences of extraordinary circumstances. The term of transfer without the consent of the employee cannot be more than one month.

But if, under these circumstances, the employee is transferred to a job requiring lower qualifications, then again his written consent will be required.

Temporary transfer of an employee to another position

The transfer can be initiated by the employer or by the employee. In some situations, temporary transfer is a medical necessity.

The term for which an employee can be temporarily transferred is not limited by the Labor Code. Therefore, such a period can be established by agreement of the parties. The reasons for temporary transfer can be different: replacement of an absent employee, promotion, etc.

Is a temporary transfer entered in the work book

Information about temporary transfer to work book not entered. Such information is recorded in the employee's personal card. The detailed terms of the transfer are reflected in the agreement with the employee and the order.

If, however, the entry on the temporary transfer was nevertheless made, then this is a violation of the procedure for filling out the work book. Correction of such an entry is carried out by making the correct entry.

The correction is made at the employee's place of work, where such an entry was made. In the event of a reorganization of a company, whose employees made a mistake, the correction is made by its assignee. And if the company is liquidated - then the current employer, but with the provision of the relevant documents.

Temporary transfer of an employee to replace an absent employee

The temporary transfer of an employee to the position of a temporarily absent employee is formalized by drawing up an agreement in writing. In this case, the date of return to work of an employee who is temporarily absent is indicated as the transfer period.

If, after the expiration of the temporary transfer, the employee is not provided with the previous job, but he does not require it and continues to work, then the condition on the temporary nature of the transfer automatically loses force. In this case, the translation is considered permanent. Despite the fact that the Labor Code does not provide for any additional registration, it is still recommended to draw up another agreement, which will indicate that the temporary transfer has become permanent.

Transfer of an employee from temporary work to permanent

A change in the working conditions of the term is not considered a transfer. If an employment contract is concluded with an employee for a limited period, then such work is considered temporary for him. And if the term of the contract has expired, but none of the parties demanded its termination and the employee continues to work, then the condition is of a temporary nature labor relations loses its force. In this case, the employment contract is considered concluded for an indefinite period. That is, the employee is "transferred" to permanent job.

If the parties decide to exclude the term in the employment contract before its expiration or "make" the temporary transfer permanent, then such changes are made out like other changes to the employment contract - by concluding an additional agreement.

Who decides on the temporary transfer of an employee

The transfer can be initiated by the employee and the employer. However, the decision to transfer is made by the employer, and it is expressed in the issuance of the corresponding order.

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

Labor legislation(Art. 60 of the Labor Code of the Russian Federation) prohibits the employer from demanding from the employee to perform work that is not stipulated by the employment contract, therefore, as a rule, transfers are allowed only with the employee's consent, with the exception of cases established by law.

It should be distinguished from transfer to another job moving employee from the same employer to another workplace, to another structural unit in the same locality, assignment of work on another mechanism, unit. Relocation does not require the consent of the employee. It will take place if the parties, when concluding the employment contract, did not specifically stipulate the workplace (mechanism, unit), structural unit as the terms of the employment contract.

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

At temporary transfer to another job, the parties by the corresponding transaction generate two interrelated consequences: they suspend the original (main) obligation for a certain period with the emergence of a new (temporary) obligation. After the expiration of the appropriate period, the temporary obligation is terminated, and the parties resume the exercise of the rights and obligations under the original legal relationship. This view transfer can be carried out by agreement of the parties, at the initiative of the employer, and in some cases at the initiative of the employee.

by written agreement parties are allowed for up to one year. If the parties have agreed on a transfer in order to replace a temporarily absent employee, for whom, in accordance with the law, a place of work is retained (for example, in connection with parental leave), the duration of the transfer will be determined by the fact that the replaced employee leaves for work. If at the end of the temporary transfer the employee continues to work, then the transfer is considered permanent. With such a temporary transfer, the right of the absent employee to resume work previously performed by him must be respected.

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

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

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

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

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

In the absence of such work or the employee's refusal to transfer labor relationship stops.

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

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

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

If the term of the transfer has expired, but you were not provided with your previous job, and you did not demand to return and continue to work, then the transfer is considered permanent (part 1 of article 72.2 of the Labor Code of the Russian Federation, the Agreement of the parties is in writing)

Remember! In accordance with Labor Code Russian Federation Art. 72.1 vs 72.2 without your written consent of you Dont Have the right to transfer to a position lower than you held before (except for the cases specified in part 2 of article 72.2 of the Labor Code of the Russian Federation). With your consent, you can be transferred to a lower position, firstly, for a period of up to 1 month, and secondly, your wages must be at least the average earnings for your previous job.

But! Let's see the situations in which the employer is entitled to transfer an employee to another job not stipulated by the employment contract, without his consent for up to one month (part 2 of article 72.2 of the Labor Code of the Russian Federation).

These are the cases:

- a natural or man-made disaster;

- industrial accident;

- fire;

- flood;

- hunger;

- earthquake;

- epidemic or epizootic;

- other exceptional cases endangering the life or normal living conditions of the entire population or its part.

Also, part 3 of article 72.2 of the Labor Code of the Russian Federation provides for a number of situations in which it is possible to temporarily transfer an employee without his consent for up to one month, namely:

- downtime (temporary suspension of work due to economic, technological, technical or organizational reasons);

- the need to prevent destruction or damage to property;

— replacement of a temporarily absent employee

You can refuse to transfer. But! If you unreasonably refuse to transfer in these situations, then this will be regarded as a disciplinary offense, and absence from work - as absenteeism (clause 19 of the resolution of the Plenum The Supreme Court RF dated March 17, 2004 No. 2 "On the Application by the Courts of the Russian Federation of the Labor Code of the Russian Federation"), if:

- the danger to your life and health has arisen due to violation of labor protection requirements (except for cases provided for federal laws) until such a hazard is eliminated;

- translation is carried out to perform heavy work and work with harmful and (or) dangerous conditions labor, and they are not provided for by the employment contract.

Attention! The duration of a temporary transfer of an employee to another job without his consent may not exceed one month. But during calendar year such transfers can be carried out by the employer repeatedly .

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

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

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

1. Employer orally or through a Translation Offer proposestranslation to the employee.

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

3. The employee is introduced to his job description, or other documentation related to it new position under painting.

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

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

6. The employer issues an order for the transfer of an employee in the form T-5 (on the transfer of an employee) or T-5a (on the transfer of employees), approved by the Resolution of the State Statistics Committee of the Russian Federation No. 1 of 05.01.2004. on the basis of the concluded Addendum to the employment contract, and its content must strictly comply with the conditions specified in it. The employee gets acquainted with the Order under painting.

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

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

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

9. At the end of the temporary transfer period, the employer must issue an order on the end of the transfer period and the start of the employee to work in the previous position. The employee gets acquainted with the order under painting, the order must contain the number and date of registration of the order, as well as the signature of the head.

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

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

otherwise, you can refuse to transfer. You must read the order under painting... The order must have a number registration, date and signature of the head.

2. You must be familiarized with the job description and safety rules under painting.

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

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

The practice of concluding fixed-term employment contracts is quite common. And there seems to be nothing incomprehensible in this, the main thing is that for the conclusion of such an agreement there are legal grounds and that the employee is notified in time of its termination, so that the contract is not transformed into an indefinite one. However, it can still be difficult to resolve some issues. In particular, difficulties arise with the transfer of a person working under a fixed-term employment contract to another position. Serious problem may also arise when concluding a fixed-term contract for the period when the employee is on parental leave. Let's try to figure out how best to act in such situations, and tell you what the judges say about this.

Basic Provisions

The grounds for concluding a fixed-term employment contract are named in Art. 59 of the Labor Code of the Russian Federation. At the same time, there are grounds when it is mandatory - labor relations cannot be established for an indefinite period (part 1 of article) - and when such an agreement can be concluded by agreement of the parties (in the cases listed in part 2 of article). There are also grounds provided for by other federal laws, for example, Federal Law No. 79-FZ of July 27, 2004 "On State civil service Russian Federation".

In a fixed-term employment contract, the period of its validity and the circumstances (reasons) that served as the basis for its conclusion for a certain period must be indicated (paragraph 4 of part 2 of article 57 of the Labor Code of the Russian Federation).

If it is impossible to determine the term, then according to Art. 59 of the Labor Code of the Russian Federation, the contract indicates a period of time - for example, in cases of performing a specific job, duties of an absent employee, seasonal work. Otherwise, it will be considered imprisoned for an indefinite period.

Relations under a fixed-term employment contract (by virtue of Article 79 of the Labor Code of the Russian Federation) terminate with the expiration of its validity. Moreover, the contract concluded:

for the duration of a certain work, - it stops when it is completed;

for the duration of the duties of the absent employee, - terminates with his return to work;

for seasonal work during a certain period(season) - ends at the end of this period (season).

The employee must be notified in writing of the termination of labor relations due to the expiration of the contract at least three calendar days prior to dismissal, except for cases when the contract concluded at the time of the performance of the duties of the absent employee expires.

Transfer of a "conscript" to another job

A variety of situations are possible associated with the transfer of an employee under a fixed-term employment contract. Let's consider the most common ones.

Situation 1. An employee is hired under a fixed-term employment contract, the expiration date of which has been established. In the process of work, it became necessary to transfer the employee temporarily to another position, to the place of the absent employee. However, while he was working in another position, his employment contract expired. Will the term of the contract automatically renew for the term of the temporary transfer?

Of course not. If you do not notify the employee about the end of the fixed-term employment contract at least three calendar days in advance, it will become indefinite and upon the release of the second employee, you will have to provide the first with your previous job, but already as a permanent one.

In this case, there are two options.

1. Conclude additional agreement to a fixed-term employment contract on changing the term of its termination.

If the contract cannot be extended, only the second option remains.

2. Terminate a fixed-term employment contract with an employee at the end of its validity period and conclude a new fixed-term employment contract for the second position.

Situation 2. An employee working under a fixed-term employment contract is temporarily transferred to another position. But at the end of the transfer, the employer did not offer the employee the previous position and he stayed to work at the new one. Is it legal at the end of the employment contract?

By virtue of Part 1 of Art. 72.2 of the Labor Code of the Russian Federation, if at the end of the transfer period, the employee is not provided with the previous job, and he did not demand it and continues to work, then the agreement on the temporary nature of the transfer becomes invalid and it is considered permanent.

If you turn to jurisprudence, then the courts, for example, consider: when an employee working on fixed-term contract, transferred to another position permanently, then it is possible to dismiss him at the end of the contract term only if there are grounds for the new position for concluding a fixed-term employment contract in accordance with Part 1 and 2 of Art. 59 of the Labor Code of the Russian Federation or other federal laws (see the Appellate ruling of the St. Petersburg City Court dated 15.02.2015 No. 33-207 / 2015). We believe that a similar approach is applied in the case when the condition of the agreement on the temporary nature of the translation becomes invalid and the translation becomes permanent.

Situation 3. An employee with whom an employment contract has been concluded for an indefinite period, the employer temporarily transfers to another position to the place of a temporarily absent employee, with whom, in turn, a fixed-term employment contract was concluded. Is it possible to fire a transferred employee at the end of a fixed-term contract for a temporary position?

Dismissal due to the expiration of the employment contract (clause 2 of part 1 of article 77 of the Labor Code of the Russian Federation) in this case is illegal by virtue of the same article. 72.2 of the Labor Code of the Russian Federation. If an employee was temporarily transferred to another position with the same employer to fill a temporarily absent one, the “conscript” must be given the previous position when the employee, for whom the transfer was carried out, will return to work or when the employment contract for this position with the “conscript” is terminated.

The law guarantees the employee the preservation of his previous job at the end of the temporary transfer (see the appellate rulings of the Moscow City Court of June 26, 2013 in case No. 11-14538, St. Petersburg City Court of 04.02.2015 No. 33-1976 / 2015 in case No. 2 -2876/2014).

When "conscript" replaces "conscript"

The situation when an employee goes on maternity leave, and then on parental leave, and an employee is taken in her place under a fixed-term employment contract is very common. But the following situation, on the contrary, is not common: the second employee is also sent on maternity leave, and then childcare, and in her place, under a fixed-term contract, they draw up next worker; then the very first employee working on an open-ended contract leaves without waiting for the end of the parental leave.

This leaves two temporary workers. With which of them does the employer have to draw up an open-ended employment contract, because they are in an equal position? On what grounds and whom to dismiss if the event that was associated with the initial conclusion of a fixed-term employment contract did not occur?

Article 59 of the Labor Code of the Russian Federation allows you to establish the term of labor relations, in particular, for the duration of the performance of the duties of an absent employee, for whom, in accordance with labor legislation and other acts containing norms labor law, collective bargaining agreement, agreements, local regulations, labor agreement retains the place of work. In this case, the term on the term in the employment contract is written approximately as follows: “This employment contract is urgent and is concluded in accordance with par. 2 h. 1 tbsp. 59 of the Labor Code of the Russian Federation for the duration of the performance of the duties of an absent employee, for whom, in accordance with the labor legislation of the Russian Federation, a place of work is retained - mathematics teacher Ivanova M.N., who is on parental leave until he reaches the age of three years, before leaving her from the said vacation. "

If for the period of parental leave an employee was hired under a fixed-term employment contract, then when the main employee leaves the vacation, the employer must issue a temporary dismissal on the basis provided for in paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation (due to the expiration of the employment contract).

Note: in this case general rule notifying the employee about the expiration of the employment contract in writing at least three calendar days before dismissal is not applied (part 1 of article 79 of the Labor Code of the Russian Federation).

We believe that in such a situation it is more logical to draw up an open-ended employment contract with the first "conscript" and conclude an agreement with her in accordance with Art. 72 of the Labor Code of the Russian Federation, which invalidate the condition on the term of the employment contract.

As for the second employee, it all depends on what was the basis for concluding a fixed-term employment contract. And here there are no uniform requirements, everyone writes differently: some - "for the period of absence of the main worker", some - "for the period of absence of a temporary worker." We believe that neither one nor the other is correct and may create problems in the future. When concluding an employment contract with a third employee, it should be indicated that he (she) is accepted for the period of absence of a temporary employee, but before the main employee leaves work.

So, if necessary, with the second "conscript" you will also have to conclude an agreement on amending the employment contract: to make a condition under which the term of her contract will expire at the moment the first "conscript" leaves the parental leave to work.

Is it possible to fire both "conscripts"? It is possible, but for this, the main employee must go to work for at least one day (which, in principle, she will still have to do in order to formalize her dismissal). After all, the courts consider the establishment of the fact of real employment of the main employee in connection with the early termination of parental leave legally significant for the correct resolution of cases of reinstatement at work of employees dismissed under paragraph 2 of Part 1 of Art. 77 of the Labor Code of the Russian Federation (Appellate ruling of the Novosibirsk Regional Court of 08.25.2016 in case No. 33-8531 / 2016).

Thus, if the main employee first left the parental leave, and then quit, then both "conscripts" can be dismissed due to the expiration of the employment contract.

In conclusion, here are some tips on how to act in such situations so that the case does not go to court. If you want to transfer an employee with whom a fixed-term employment contract has been concluded to another position temporarily, do not forget to indicate the transfer period in the agreement and notify the employee about the end of this period and the provision of the previous place of work. And remember that the transfer can be carried out only with the consent of the employee (not counting some cases established by Article 72.2 of the Labor Code of the Russian Federation).

In addition, if you need to transfer an employee to another position, you can, in order not to complicate your life (and if the employee does not mind), terminate one fixed-term employment contract and conclude another for the new position. Errors made in the transfer procedure can lead to the fact that a fixed-term employment contract will become indefinite.

In any case, first try to negotiate with employees and resolve difficult situations without a trial.

Sometimes an employee has to be transferred to another job for a while. This need can be caused by a number of reasons - medical indications, industrial necessity, etc. However, not everything is so simple with the translation procedure. For example, some people confuse a transfer with a transfer and do not process it properly or are underpaid. wages when transferring to a lower-paid position. You will learn about the cases in which temporary transfers are possible, how to distinguish them from moving, how much to pay the temporarily transferred employee and how to document it all by reading the article.

Instead of a preface

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

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

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

Temporary transfer with the consent of the employee

To make a temporary transfer, a written agreement is required. The employer first offers the employee a vacant position or position where an absent employee needs to be replaced. Then, upon agreement, an additional agreement is concluded on a temporary transfer to another job, position or to another structural unit.

And first of all, let's say about the timing of such a transfer. Temporary transfer to another job with the same employer is possible for a period of up to one year, and in the case when such a transfer is carried out to replace a temporarily absent employee, for whom, in accordance with the law, the place of work is retained, - until this employee leaves for work.

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

When concluding a transfer agreement, record in it the basis for the transfer, its term, the employee's new obligations, as well as other conditions that differ from those established by the employment contract.

Separately, let's talk about the wording of the transfer period. If a temporary transfer is carried out to a vacant position, it is possible to determine a specific date for the completion of the transfer, and if, to replace a temporarily absent employee, it is better to indicate a condition upon the occurrence of which the employee returns to his workplace, because the absent employee may return to work later (for example, when renewing leave or sick leave). For the latter case, the wording may be as follows: "This supplementary agreement is valid until the date of leaving for work from parental leave leading specialist E. D. Gulkina."

On the basis of the agreement signed by the parties, an order for transfer is issued in accordance with the unified form T-5 1] (T-5a). It is important to indicate in the "Type of translation" line that the translation is temporary. With such an order, the employee must be familiarized with signature.

The next step in arranging a temporary transfer will be making a record about it in section. III personal card "Hiring and transfers to another job" (f. T-2 or T-2 GS (MS)).

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

note

If an employee is transferred to another job or position, he must be familiarized with the job description and other local regulations that are important for the performance of this work. In addition, you may need to conduct a safety briefing or conclude a liability agreement.

Note that the employer should control the end of the temporary transfer, since by virtue of h. 1 tbsp. 72.2 of the Labor Code of the Russian Federation, if, at the end of the transfer period, the employee is not provided with the previous job, but he did not demand it and continues to work, then the condition on the temporary nature of the transfer becomes invalid and the transfer is considered permanent... In this regard, the question arises: is it necessary to somehow formalize the provision of the previous job? Labor legislation does not contain requirements for processing the return of an employee. In the meantime, we recommend doing this. Usually, for this, an order (order) is issued to terminate the performance of duties in a temporary position and return to fulfillment of duties in the main position. It can look like this.

State autonomous institution Arkhangelsk region

"Sports Training Center"

Arkhangelsk

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

I ORDER:

1. Olga Viktorovna Pshenitsyna, temporarily, by agreement of the parties dated 04.04.2014 No. 2, who held the position of deputy head of the support department for sports teams, to begin work provided for by the employment contract dated 12.06.2010 No. 10-06, as chief specialist of the support department for sports teams teams, since August 21, 2014

2. Accounting departments to calculate Pshenitsyna O. V. wages in accordance with staffing table on the position of the chief specialist of the department of support of sports teams.

Director Zlakov I. I. Zlakov

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

It may so happen that the main employee leaves or the temporarily replaced position is completely vacant, and the management of the organization, and the temporary employee himself, is not against making the temporary transfer permanent. In this case, it is necessary to conclude another additional agreement, indicating in it that a temporary transfer made by agreement from such and such a date is considered permanent. On the basis of the agreement signed by the parties, it is necessary to issue an order in any form, in which it is also to be confirmed that the condition on the term of the transfer has ceased to be valid.

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

Example

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

№ records	date			Information about hiring, transfer to another permanent job, qualifications, dismissal (indicating the reasons and reference to the article, clause of the law)	Name, date and number of the document on the basis of which the entry was made
№ records	number	month	year
1	2			3	4
…	…	…	…	…	…
				State state-financed organization
				Vladimir region "Management
				highways "
8	09	12	2012	Accepted to the position of the host	Order dated 09.12.2012
				specialist expert.	№ 22
9	03	02	2014	Transferred to the position of chief	Order dated 02/03/2014
				Department of acceptance of work performed	№ 16*
				for repair and maintenance	Order dated 07.28.2014
				highways.	№ 47**

*
Temporary transfer order.

**
An order to recognize as invalid the condition on the temporary nature of the transfer.

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

Temporary transfer without the consent of the employee

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

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

The term for the transfer of an employee without his consent may not exceed one month.

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

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

However, it should be borne in mind that for the transfer in these cases, both simple and the need to prevent the destruction or damage of property or to replace a temporarily absent employee must be caused by the extraordinary circumstances indicated above.

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

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

We emphasize: if the employer cannot prove the existence of circumstances with which the law connects the possibility of transfer without the consent of the employee, such a transfer will be recognized as illegal ( Clause 17 of Resolution No. 2 ). So, since 1999, T. worked as a cardiovascular surgeon at the Pskov Regional Hospital. By order of the chief physician, he was temporarily transferred without his consent to the polyclinic of the regional hospital to the position of cardiovascular surgeon with reference to the need for replacement vacant post and in order to prevent threats to the life and health of the population. Believing the employer's decision to be unlawful, T. refused to perform his duties in the clinic, for which he was subjected to disciplinary action in the form of a reprimand. The court ruled illegal both the order to impose a disciplinary sanction and the order on temporary transfer. GBUZ did not provide evidence of extraordinary circumstances that necessitated the temporary transfer of the employee without his consent to work not stipulated by the employment contract. The translation was carried out under the pretext of a production necessity in the absence of exceptional cases indicating a real need for such a translation, and therefore the said translation is illegal (Appeal ruling of the Pskov Regional Court dated 02.10.2012 in case No. 33-1580).

note

Refusal to perform work during transfer in case of extraordinary circumstances, committed in compliance with the law, is recognized as a violation of labor discipline, and absenteeism is absenteeism ( clause 19 of Resolution No. 2 ). It should be borne in mind that due to par. 5 h. 1 tbsp. 219, h. 7 art. 220 of the Labor Code of the Russian Federation an employee cannot be disciplined for refusing to perform work in the event of a danger to his life and health due to violation of labor protection requirements, except for cases provided for by federal laws, until such danger is eliminated or from performing heavy work and work with harmful and ( or) hazardous working conditions not provided for by the employment contract. Since the Labor Code of the Russian Federation does not contain norms prohibiting an employee to use this right even when the performance of such work is caused by a transfer on the grounds specified in Art. 72.2 of the Labor Code of the Russian Federation, the employee's refusal to temporarily transfer to another job for the above reasons is justified.

A temporary transfer without the consent of the employee must also be formalized. For this, a transfer order is issued with an indication of the reasons (catastrophe, industrial accident, etc.). And of course, it is better to back up such an order with appropriate documents, otherwise the employee may refuse to transfer.

Translation or relocation?

Sometimes the employer confuses a temporary transfer with a transfer and, instead of drawing up an agreement and a transfer order, issues a transfer order. We recall that due to h. 3 tbsp. 72.1 of the Labor Code of the Russian Federation moving from the same employer to another workplace, to another structural unit located in the same area, assigning work on another mechanism or unit, if this does not entail changes determined by the parties terms of an employment contract , does not require the consent of the employee.

Before making a move, carefully check the terms of the employment contract - whether it contains a workplace, a structural unit, and whether the employee's job function will change. Otherwise, you can't avoid labor disputes... So, G., who works in the PMU as a senior accountant, was moved to the position of an accountant. The PMU believed that these positions have similar labor functions. Considering the dispute on the recognition of the illegal transfer order, the court noted: from the employer's order it follows that, in fact, there was no transfer, but the transfer of G. to another position, which entailed a change in the employee's labor function. These actions were carried out without G.'s consent, therefore, the order to move is illegal ( Appeal ruling of the Yaroslavl Regional Court dated 04/25/2013 in case No. 33-2536 / 2013).

Remuneration for temporary transfer

When transfers are made without the consent of the employee (in the cases named in Part 2, 3 tbsp. 72.2 of the Labor Code of the Russian Federation), wages are made for the work performed, but not lower than the average earnings for the previous work. That is, if the employee's salary for the work performed is lower than his previous average earnings, then he is paid the previous average earnings, determined in accordance with the established procedure.

Well, if the wages are new job exceeds the average earnings of an employee, then he is paid an additional payment before salary for a new job. So, the claims for the recovery of the lost wages were satisfied by the court: during the period of temporary transfer to another position, the plaintiff was acting as an employee of a higher position, therefore, the difference in salary is subject to recovery in his favor ( Determination of the Perm Regional Court of September 25, 2013 in case No. 33-8092).

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

Temporary transfer for medical reasons

As we have found out, temporary transfers are carried out with or without the consent of the employee. However, according to 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 the medical report. Moreover, other work should not be contraindicated for the employee for health reasons.

For your information

A medical certificate is issued in the manner prescribed by the Order of the Ministry of Health and Social Development of the Russian Federation dated 02.05.2012 No. 441 "" On approval of the procedure for issuing medical organizations certificates and medical reports ". A temporary disability certificate is not considered a medical certificate.

When receiving a medical certificate from an employee, first of all, you need to pay attention to the translation time specified in the certificate, since further actions of the employer depend on this.

If an employee is shown a temporary transfer to another job for up to four months, the employer must offer him another job that is suitable for health reasons. In the absence of such or refusal of the employee, the employer is obliged to suspend him from work with the preservation of his place of work (position) for the entire period specified in the medical report. For this, the employer issues an order in any form. The order should indicate the period for which the employee is suspended, if the period is still not specified, when admitting to work, an order for admitting the employee should be issued.

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

For your information

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

Athlete's temporary transfer

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

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

note

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

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

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

Finally

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

Approved by the Resolution of the State Statistics Committee of the Russian Federation dated 05.01.2004 No. 1 "On the approval of unified forms primary accounting documentation for labor accounting and remuneration ”.