Permanent transfers to another job are possible. Permanent translation: approximate step-by-step procedure (general). Making a transfer to another job

12.12.2019

Translation is a permanent or temporary change labor function employee and (or) the structural unit in which he works (if the unit was specified in the employment contract), while continuing to work for the same employer, as well as transferring to work in another locality together with the employer (Article 72.1 of the Labor Code of the Russian Federation).

The transfer is not considered and does not require the consent of the employee:

moving it from the same employer to another workplace,
moving it to another structural subdivision located in the same area
entrusting him to work on another mechanism or unit, if this does not entail a change in the terms of the employment contract.

The circumstance is also not considered a transfer if the structural unit in which the employee works is not specified in the employment contract.

All translations are divided into:

temporary,
permanent,
mandatory transfers.

In turn, temporary transfers can be divided into those carried out with the consent of the employee and transfers without consent. Let's look at all types of translations in order.

Permanent transfers of an employee to another job

A permanent transfer is issued in the following cases (Article 72.1 of the Labor Code of the Russian Federation):

the labor function of the employee changes (for example, an engineer becomes a chief engineer);
the structural unit specified in the employee's employment contract changes (for example, the manager of the purchasing department is transferred to the sales department);
the employee is transferred to work in another area ( locality) in connection with the relocation of the employer.

Permanent transfer is possible both at the initiative of the employee and at the initiative of the employer, but is allowed only after an agreement has been reached between the employee and the employer. It is mandatory to obtain the written consent of the employee. If the employee does not object to the transfer, he expresses his consent either on the proposal of the employer, or in a separate document (application).

What an employer needs to do:

Conclude an additional agreement with the employee to the employment contract. Write the name in it new position, the amount of remuneration and other conditions that have changed in connection with the transfer. The agreement is drawn up in two copies for each party, on the copy of the employer, the employee puts a mark in receiving his own. Give one copy to the employee, the second copy remains with you, the employee must sign on it that he received his copy of the agreement.
Issue an order to transfer to another position and to another unit (form N T-5 or arbitrary).
Record the transfer to another job in work book. In column 4 of the work book, you must specify the details of the transfer order. The entry must be made within a week from the date of issuance of the order (clause 10 of the Rules for maintaining and storing work books, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225 “On work books”, hereinafter referred to as the Rules).
Enter information about the transfer in sect. III of the employee's personal card and familiarize him with this entry against signature.

If the employee is transferred to a position for which the conclusion of a fixed-term employment contract is provided. So that the re-qualification of an open-ended contract into an urgent one is not regarded as an infringement of the rights of an employee, it is better to terminate the previously concluded labor contract and conclude a new urgent.

5 situations when the employer is wrong

Situation 1: The organization has free rates. The employee asked the boss to transfer her to one of them, but he refused. Are the boss's actions legal?

Answer: According to Art. 72 of the Labor Code of the Russian Federation, a change in the terms of an employment contract determined by the parties, including transfer to another job, is allowed only by agreement of the parties to the employment contract, with the exception of cases provided for by the Labor Code of the Russian Federation. Thus, yes, the boss has the right to refuse an employee.

Situation 2: The employee was transferred to another department for the same position and with the same amount of work performed, but the salary was reduced without the consent of the employee. Is it legal?

Answer: Changing the terms of an employment contract, in particular wages, is allowed by general rule only with the consent of the employee and is drawn up by an additional agreement to the employment contract. Therefore, the employer acted incorrectly.

It is not uncommon for an employer to transfer an employee to more high position, and to check the employee, sets him a trial period:

Situation 3: The employee holds the position of chief specialist. The position of head of department was vacated in the department. The employer wants to offer this position to the chief specialist, but he is not sure whether the employee will be able to cope with the assigned duties. Can an employer set a probationary period for an already employed employee? Can an employer conclude a fixed-term employment contract for three months?

Answer: Establishing a probationary period for an employee carrying out labor activities in an organization is not provided. The test is established only at the conclusion of an employment contract, that is, for a new employee (Article 70 Labor Code RF). The conclusion of a fixed-term employment contract when transferring to another position will also be illegal. In this case, the employer can issue a temporary transfer of the employee to another position.

Situation 4: The employer hired a foreign citizen for a position in accordance with the permit. However, according to production needs the employee was transferred to another position not specified in the permit. Is the employer right?

Answer: hiring a foreign citizen to work not in the specialty specified in the work permit is not legal. Such a situation, when the work actually performed by a foreigner does not correspond to the type of activity specified in the permit, is equated by the Federal Migration Service and the courts to work without a permit (Decision of the Moscow City Court dated 12.12.2011 N 7-2678; Resolutions of the Federal Antimonopoly Service of the North Caucasus District dated 05.21.2012 N A53 -16050/2011, Supreme Court RF dated September 23, 2011 N 18-AD11-15). And entails the imposition of significant penalties or suspension of the organization, which in any case is an unjustified risk for the employer.

Situation 5: the employer demanded that the employee, who is on parental leave, go to work for one day to familiarize herself with the order for her transfer to a lower position and a decrease in wages. Is the employer legally acting, motivating the specified transfer by the need to reduce the expenses of the organization?

Answer: The employer is acting illegally. An employee cannot be recalled from vacation without her consent and transferred (Article 125 of the Labor Code of the Russian Federation). Transfer without the consent of this employee is only allowed on the basis of a medical report. Thus, her former position should be retained for her (Article 256 of the Labor Code of the Russian Federation). Thus, the order issued by the employer will worsen the position of the employee in comparison with the established labor legislation and be illegal. In accordance with Part 4 of Art. 8 of the Labor Code of the Russian Federation, it cannot be applied. If the employer nevertheless makes a transfer without such consent and applies an order that worsens the rights of the employee, then she can resort to the protection of her labor rights legislatively fixed ways and appeal against the actions of the employer, thereby reinstating in his previous position.

Temporary transfers to another job

Temporary transfer to another job is made for a certain period. At the same time, the employee’s labor function and (or) structural unit is temporarily changed, if it was indicated in the employment contract. Temporary transfers include (Article 72.2 of the Labor Code of the Russian Federation):

transfer to another job, carried out by agreement of the parties for a period not exceeding one year;
transfer to another job, carried out by agreement of the parties to replace an absent employee for a period before his return to work;
transfer to another job due to objective reasons (for example, for up to 4 months in accordance with a medical report).

The procedure for issuing a temporary transfer is similar to that for permanent transfers. The exception is that in case of temporary transfers, an entry in the employee's work book is not made, regardless of the reason and term for such a transfer. If the deadline is not known, they write "until the temporarily absent employee leaves." And already on the basis of the agreement, an order is issued on temporary transfer.

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, then it is valid until the employee returns to work. As a general rule, at the end of the term, the transfer is terminated, and the employee is provided with the work provided for by the employment contract.

But it may well be that the term of the transfer has expired, and the employee was not provided with the previous job and he did not demand its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer becomes invalid and the transfer is considered permanent. In such a situation, it is advisable for the parties to fix these agreements in writing by drawing up an additional agreement to the employment contract. Further, on the basis of such an agreement, the employer issues an order on personnel, in which it states the fact that the transfer, which was originally issued as temporary, is now considered permanent. And in this case, it becomes necessary to make an entry in the work book of the employee.

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Transfers with the consent of the employee

The employer may also temporarily transfer the employee with his consent for the period of suspension of work in connection with the administrative suspension of activities or a temporary ban on activities in accordance with the legislation of the Russian Federation due to violation of state regulatory requirements labor protection through no fault of the employee. At the same time, the place of work (position) and average earnings(Article 220 of the Labor Code of the Russian Federation).

Transfers without the consent of the employee

The period of temporary transfer at the initiative of the employer, that is, without the consent of the employee, cannot exceed one month.

In addition, this can be done only in certain cases, which are indicated in Part 3 of Art. 72.2 of the Labor Code of the Russian Federation:

natural or man-made disasters, industrial accidents, industrial accidents, fire, flood, famine, earthquake, epidemics or epizootics and any exceptional cases that endanger the life or normal living conditions of the entire population or part of it (part 2);
downtime (temporary suspension of work due to economic, technological, technical or organizational reasons);
the need to prevent destruction or damage to property;
the need to replace a temporarily absent employee (part 3).

All of the above cases must be caused by emergency circumstances specified in Part 2 of Art. 72.2 of the Labor Code of the Russian Federation. These include any circumstances that endanger the life or normal living conditions of the population or part of it. It is strongly not recommended to transfer an idle employee to another job if he does not agree to this. If no emergency circumstances are identified, then the transfer of the employee will be declared illegal.

A transfer without the consent of the employee is executed by order of the employer, indicating the circumstances that caused such a transfer. If an employee is transferred to a position requiring a lower qualification, written consent should be requested from him. At the same time, payment is made in an amount not lower than the average earnings for the previous job.

Transfer to another locality

Transfer to another locality together with the employer, that is, a change in the location of the organization, is considered a permanent transfer. It does not occur so often, however, there are nuances and the employer needs to know about it.

The execution of such a transfer should take place in the following sequence:

The employer must notify all employees of such a transfer in advance. Since the timing of such a warning is not established, one should be guided by Art. 74 of the Labor Code of the Russian Federation and apply a two-month notice period,
Offer employees a translation. It is not necessary to send a transfer proposal to each employee, but it is enough to issue one order and bring it to the attention of everyone against signature.
Be sure to obtain the consent of employees,

In a situation where the organization has changed its legal address and the executive body has changed its location, but the actual place of work of employees has remained the same, it is not necessary to issue a transfer.

Employees who refuse to be transferred to another locality must be dismissed under paragraph 9 of part 1 of Art. 77 of the Labor Code of the Russian Federation - refusal to transfer to another locality together with the employer. The employee is paid severance pay in the amount of two weeks' earnings (Article 178 of the Labor Code of the Russian Federation). As with a regular dismissal, to formalize the termination labor relations with employees, form No. T-8 (or form No. T-8a), approved by Resolution No. 1, is applied.

With employees who have expressed a desire to continue working with this employer in another locality, relations are formalized as follows:

an additional agreement is concluded to the employment contract on transfer to another locality,
on the basis of an agreement with the employee, an order is issued,
a record is made of the transfer to another locality, even if the employee remains in the same position and in the same structural unit,
an entry is made in the employee's personal card.

The employer should not forget about such an important point: if the employee agrees to move to work in another area, he will have to reimburse:

expenses for the relocation of the employee himself, his family members and the transportation of property (except for cases when the employer provides the employee with appropriate means of transportation);
expenses for settling in a new place of residence.
The specific amounts of reimbursement of expenses are determined by agreement of the parties to the employment contract (Article 169 of the Labor Code of the Russian Federation).

Mandatory transfer to another job

Situations in which the transfer is mandatory occur both at the initiative of the employee (when he has the right to demand from the employer a transfer to another job), and at the initiative of the employer (due to circumstances beyond the control of the parties). At the same time, an employee can be transferred both on a permanent and temporary basis. For example, if an employee refuses to perform work in the event of a danger to his life and health, the employer is obliged to provide such an employee with another job while the danger is eliminated (Article 220 of the Labor Code of the Russian Federation).

The employer is obliged to satisfy the request of the employee to transfer him to another job in the following situations:

provided with a medical certificate;
reduction in the number or staff of employees in the organization;
in case of suspension of a special right;
a woman is pregnant or has children under the age of one and a half years.

Moreover, each of these situations has its own design features.

The employee provided a medical report issued in accordance with the procedure for issuing certificates and medical reports, approved by Order of the Ministry of Health and Social Development of the Russian Federation of 02.05.2012 N 441n. According to the document, the employee needs to be transferred to another job. In this case, the employer is obliged to transfer to another job he has, which is not contraindicated for this citizen for health reasons. The transfer of an employee to another position, where work is not contraindicated for him for health reasons, is carried out with his written consent (part 1 of article 73 of the Labor Code of the Russian Federation).

True, there is one “but” - if an employee who needs a temporary transfer for up to four months refuses to transfer (or there is no corresponding job), then the employer must remove the employee from work for this period while maintaining the place of work (position). However, during the suspension wage the employee is not charged. At the same time, if an employee needs a temporary transfer 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 the appropriate job, the employment contract is terminated in accordance with paragraph 8 of part one of Article 77 of the Labor Code of the Russian Federation (Art. 73 of the Labor Code of the Russian Federation).

With managers (and their deputies) in need of translation medical indications, the situation is different. In their case, the employment contract with them may not be terminated, and the period of suspension from work is determined by agreement of the parties.

It is not uncommon for an employee to be transferred to a lower-paid job. The employer is obliged to keep the average earnings from the previous job within one month from the date of transfer. If the transfer is associated with an employment injury, occupational disease or other damage to health associated with work - until a permanent loss of professional ability to work is established or until the employee recovers (Article 182 of the Labor Code of the Russian Federation). Arbitrage practice this confirms. The judges ruled that the employer’s obligation to maintain the average salary for the employee arises from the moment the employee is transferred to a lower-paid position and terminates with the establishment of a permanent loss of professional ability to work (Appeal ruling of the Vologda regional court dated 13.09.2013 N 33-4301/2013).

When carrying out measures to reduce the number or staff of the organization's employees, the employer is obliged to offer the employee another available job (both a vacant position or a job corresponding to qualifications, and a vacant lower position or a lower-paid job). If the transfer cannot be made, the employee will have to be fired on the basis of paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation. About the upcoming dismissal due to a reduction in the number or staff of the organization's employees, employees are warned by the employer personally and against signature at least two months before the dismissal (Article 180 of the Labor Code of the Russian Federation).
If an employee has lost the opportunity to perform duties under an employment contract in the event of suspension of the employee’s special rights (licenses, the right to drive a vehicle, the right to carry weapons, etc.) for a period of up to two months, the employer is obliged to transfer the employee to another available job (as a vacant a position or job corresponding to qualifications, as well as a vacant lower position or lower-paid job) that an employee can perform taking into account his state of health. Of course, in this case, the employer must obtain the written consent of the employee. In addition, the employer is obliged to offer all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract. If the employee refused or there is no vacant position, he is suspended from work without pay (Article 76 of the Labor Code of the Russian Federation). If the period of suspension of a special right exceeds two months or the employee is deprived of this right, the employment contract with him is subject to termination in accordance with paragraph 9 of part 1 of Art. 83 of the Labor Code of the Russian Federation.
A pregnant employee, in accordance with a medical report, the employer must transfer to another job that excludes the impact of adverse production factors, while maintaining the average earnings in the previous job. A statement is required from the employee. Until other work is provided, a pregnant woman is released from work. She retains the average earnings for all missed working days as a result of this at the expense of the employer (Article 254 of the Labor Code of the Russian Federation).

Meanwhile, women with children under the age of one and a half years, in case of impossibility to fulfill previous work are transferred at their request to another job with pay for the work performed, but not lower than the average earnings at the previous place of activity until the child reaches the age of one and a half years (Article 254 of the Labor Code of the Russian Federation). Also, pregnant women and women with children under the age of three cannot be involved in work performed by on a rotational basis(Article 298 of the Labor Code of the Russian Federation).

In this situation, the transfer to another job is carried out as follows:

The parties conclude an additional agreement to the employment contract
The manager issues an order to transfer to another job
The personnel officer makes entries about the transfer in the work book and personal card in the form No. T-2

A situation may arise when an employee does not want to interrupt her vacation or go on part-time working time. In this case, there is no need to force her to interrupt the vacation. It is enough to invite her to come to work for registration additional agreement to the employment contract or send a courier to her. True, it is recommended that the employee be familiarized with the new job description against signature in order to avoid refusal to perform duties that may come as a surprise to her. This must be done before signing an additional agreement to the employment contract.

The procedure for issuing an additional agreement:

Date of change of labor function - indicate the date from which the employee will perform a new labor function (work in a new position or in another department). This may be the current date (in the case when the structure of the company changes) or the actual date of her return to work from parental leave.
In the additional agreement, it is possible to indicate (optionally) that the employee began her new duties after leaving parental leave.
If, when transferring to another position (in a department), the salary of an employee changes, then these changes should also be made to the supplementary agreement.

Instruction

First of all, ask the employee to write an application for a permanent transfer. This document must be completed before the end of the temporary contract. An application is made in the name of the head of the company. The main text should read as follows: “Please transfer me to permanent job to the position (specify which) in the department (name) from (date)”. At the end of the document must be the signature of the applicant and the date of preparation of the document.

Based on this document, issue an order to transfer an employee to another job (form No. T-5). In this document, indicate the full name of the employee, the type of transfer, the previous and new place of work. In the "reason for transfer" column, indicate that the employee is being transferred from a temporary basis to a permanent one. Be sure to indicate the number of the previously concluded employment contract, the date of its signing and expiration. Sign the order, give it to the employee for signature.

Draw up a new employment contract. Specify the working conditions (position, salary and other factors), the rights of both parties and obligations. Make two copies of the document (one for the employer, the second for the employee). Sign, affix the seal of the enterprise, give it to the employee for signature.

Draw up a job description, make a note in the employee's personal card. In the work book, make an entry indicating the position, date and number of the order. Issue an order to change the staffing table, as well as the vacation schedule. Make changes to these documents.

You can also place an employee on a permanent job by terminating a temporary contract. But in this case, the employee's experience,. You will have to publish new order, fill out a new card, form a case. This procedure is carried out in the event that in advance, before the end of the term of the temporary contract, they did not manage to draw up all the documents necessary for the translation.

In a number of cases (their full list is given in the Labor Code of the Russian Federation), the law allows you to conclude a fixed-term employment contract with an employee. A fixed-term contract differs from a regular one in that it specifies an expiration date. After the expiration of the term of the employment contract, the employee is not entitled to any compensation in connection with the dismissal.

You will need

- the text of a fixed-term employment contract;
- a computer;
- Printer;
- fountain pen;
- seal;

Instruction

The basis for an urgent one may well serve as a regular employment contract, which is concluded by your organization.
However, it would not be superfluous to add the word "urgent" to the very name of the contract, and in the very first section also indicate that the employee and the employer conclude a fixed-term employment contract between themselves and a link to the provision of the Labor Code of the Russian Federation, which gives the right to apply for this option in your particular case.
Most sections can be left untouched: they are equally relevant for both an open-ended contract and an urgent one.

Do not forget to also add sections to the text about the expiration of a fixed-term employment contract and the procedure for terminating it if there are other grounds. For example, in the case early exit to the work of an employee who is replaced by the one you hire on a fixed-term contract.
It will not be superfluous to support all provisions with references to the relevant current regulations Labor Code of the Russian Federation. In this case, no labor inspectorate will definitely find fault with you.
A fixed-term contract, like any other, on the part of the employee is certified by his signature, and the organization - by the signature of its head and seal.

Otherwise, the procedure for registering a new employee is no different from the usual one. He writes an application addressed to the head of the organization with a request to hire him, indicating the position and, if necessary, the unit, and gives you his work book.
You issue an order on his admission to a temporary job, in which you prescribe the term for the end of the employment relationship. The order is signed by the head of the organization and certified by its seal.
An entry in the labor is made in the usual manner: serial number, date, information about hiring, indicating the position and, if necessary, the unit and the number and date of issuance of the order for employment.

When carrying out financial and economic activities, the heads of organizations are faced with situations where they have to transfer employees to other positions. Due to ignorance of personnel matters, mistakes are made in the process of paperwork that are fraught with litigation, debates with employees. To protect yourself from this, you need to approach the translation with all responsibility.

Instruction

If you want to transfer an employee to another position, get his consent. It must be in writing - this may be a notice from your side, signed by an employee; or an application for a transfer from the employee. One way or another, without this you will not be able to carry out the desired operation - this is written in article 72 of the Labor Code of the Russian Federation. Send the notice to the employee no later than two months before the entry into force of the order.

Draw up an additional agreement to the previously concluded employment contract. Indicate in the document the old version of the contract, which is subject to change. Next write new edition one of the items. Also include payroll information. Draw up an additional agreement in duplicate, sign it and give it to the employee for signature. Be sure to secure the information with a blue imprint of the organization's seal.

Make an order for transfer to another position. Create the form yourself or use the unified form No. T-5. If you chose the first option, indicate this in the accounting policy of the organization. In the administrative document, indicate the full name. employee, previous and new place of work. Here, write the amount of payment (old and new). When compiling the form, refer to the supplementary agreement and articles of the Labor Code. Sign the order, give it to the employee for signature.

Make changes to your personal card, staffing; add a personal note. In the employee's work book, make an entry based on the transfer order.

Useful advice

According to Article 182 of the Labor Code of the Russian Federation, you, as an employer, when transferring an employee to a lower-paid position, are obliged to pay the employee the previous salary within a month from the date the order comes into force.

Sources:

Labor Code of the Russian Federation

Tip 4: How to transfer from a temporary position to a main one

In accordance with Russian legislation, an agreement for the performance by an employee of someone's duties is concluded for a certain period, after which the person returns to his main duties. However, it is possible to transfer an employee from a temporary position to a main one, subject to special conditions.

It is possible to transfer a person from a temporary position to a main one only if the employee whose position is being replaced wishes to leave work due to own will or be fired by management. In this case, the procedure for dismissal of the latter is carried out first. The departing employee transfers his affairs to a successor, to whom the management arranges a transfer to another position. Since the entry into force of the relevant order new employee may take up his duties.

The dismissed employee has the right to receive paid leave and other social benefits that were not provided to him under the work schedule until that moment. In this case, the applicant can fulfill his duties during the period agreed with the management, and only after the termination of the procedure for dismissing an employee on vacation or on sick leave is he issued on an ongoing basis.

The employer has the right to transfer an employee working on a permanent basis to another position or to another employer (if the employee himself has no objections to this). In this situation, an appropriate transfer order is drawn up, and at the same time, the preparation of documents (application, management order, employment contract) begins for the registration of another employee working on a temporary basis instead of him. Immediately after the completion of the transfer procedure, the employee appointed to a permanent position must immediately begin to perform duties.

You can also make changes to the current staff list by reducing the list of positions or adding a new one. This may be required to release an employee who was appointed to a position on a permanent basis from his previous duties, to eliminate the need to search for new employees, as well as to establish a new position for a temporary employee.

To transfer within the same organization, the employee should write an application addressed to the employer, sign an additional agreement to the employment contract and familiarize himself with the issued order. If changes in the terms of the employment contract are not required, then the transfer is considered a transfer, and the only document to be drawn up is the order of the employer.

Transfer within one company can take place at the initiative of any party to the employment contract, however, the implementation of this transfer is the exclusive right of the employer. So, if an employee wants to transfer to another workplace, to another structural unit in the same company, then the manager can satisfy his request or refuse to satisfy it. If the transfer is carried out at the initiative of the company, then the employee must first agree to it, because otherwise its implementation will be illegal. However, the consent of the employee is not required when moving, which means any changes that do not entail the need to conclude an additional agreement to the employment contract.

How is the transfer carried out within the same company?

If the transfer initiative comes from an employee, then he must submit an appropriate application addressed to the employer. If the management agrees to carry out such a transfer, an additional agreement is drawn up to the employee's employment contract, in which all agreed changes are recorded. The signing of this agreement by the employee means his agreement with such a transfer.

Sometimes employers additionally request a written consent to the translation, since its presence is required in accordance with the law (its function may be performed by a signature under an additional agreement). On the basis of this agreement, the company issues an order (unified form No. T-5a), which is introduced to the employee against signature. This completes the procedure for processing the transfer, the employee begins to perform his duties, taking into account the changes. If the initiative for the transfer comes from the organization, then the described procedure is changed only in terms of the absence of a preliminary application by the employee with a request for a transfer.

How is the movement within the same company?

A simplified registration procedure is provided for moving an employee within the same company. A transfer is such a change that does not require the conclusion of an additional agreement to the employment contract. So, in the absence of a clause on a structural unit in the contract, the transfer of an employee to another unit will not entail the conclusion of an additional agreement. In this case, the consent of the employee to the movement is not required; for its implementation, it is sufficient to issue an appropriate order and familiarize the employee with it. After this, the transfer takes effect, the employee is obliged to begin to perform duties in the new conditions.

Rules for transferring to another job

General rules

P transfer to another job - this is a permanent or temporary change in the labor function of an employee or the structural unit in which the employee works (if the structural unit was indicated in the employment contract), while continuing to work for the same employer, as well as transferring to work in another area together with the employer (Art. 72.1 of the Labor Code of the Russian Federation). Transfers can be temporary and permanent, at the initiative of the employee and at the initiative of the employer, with the consent of the employee and without his consent.

Note

In this case, structural subdivisions should be understood as branches, representative offices, as well as departments, workshops, sections, etc. (Clause 16 of the decision of the Plenum of the Supreme Court dated March 17, 2004 No. 2).

Please note that transfer to another job is allowed only with the written consent of the employee (Article 72.1 of the Labor Code of the Russian Federation). The exceptions are some cases of temporary transfer, to which we will pay special attention below. In this case, an agreement to change the terms of the employment contract determined by the parties must be concluded in writing (Article 72 of the Labor Code of the Russian Federation).

Note that the consent of the employee is not required to move him from the same employer to another workplace, to another structural unit located in the same locality, to entrust him with work on another mechanism or unit, if this does not entail a change in the terms of the employment contract determined by the parties.

In all cases, it is forbidden to transfer and move an employee to work that is contraindicated for him for health reasons.

Also, at the written request of the employee or with his written consent, it can be carried out.

Please note: in case of recognition of a transfer to another job illegal employee must be restored to the former place of activity. At the same time, the body considering an individual labor dispute makes a decision to pay such a person the difference in earnings for the entire time of performing lower-paid work. Also, the court has the right, at the request of the employee, to make a decision on the recovery from the employer of monetary compensation for moral damage caused by these actions (Article 394 of the Labor Code of the Russian Federation). Moreover, in the event of a delay by the employer in the execution of the decision to reinstate the employee in his previous job, the body that made the decision makes a determination on the payment of the difference in earnings to this citizen for the entire time of the delay (Article 396 of the Labor Code of the Russian Federation).

Permanent translation

In this case, we are talking about a permanent change in the labor function of the employee or the structural unit in which the employee works (if the structural unit was indicated in the employment contract) (Article 72.1 of the Labor Code of the Russian Federation).

Any employee can apply for a transfer (see Example 1).

To process the transfer, form No. T-5 or form No. T-5a (see Example 3) is used, approved by the Decree of the State Statistics Committee of the Russian Federation dated 05.01.2004 No. 1 “On approval of unified forms of primary accounting documentation for accounting for labor and its payment” ( hereinafter - Decree No. 1).

Based on the order to transfer the employee to another job, marks are made in the section “Employment, transfers to another job” in the employee’s personal card (form No. T-2 or No. T-2GS (MS)) (see Example 4) and the front invoice (Form No. T-54 or No. T-54a).

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When issuing an order to transfer an employee to another job (form No. T-5, approved by the Decree of the State Statistics Committee of the Russian Federation dated January 05, 2004 No. 1 “On approval of unified forms of primary accounting documentation for accounting for labor and its payment”), personnel officers often have a question: “What document should be indicated in the line “Reason: change to the employment contract from ....”? Details of the employment contract itself or details of an additional agreement to the employment contract?

Olga Maksimova,
Head of the Human Resources Department, Burevestnik LLC, Nizhny Novgorod

Answered by Vladimir Pirogov, lawyer at Nikline LLC:

In the line "Basis: change to the employment contract from ..." the details of the supplementary agreement to the employment contract should be indicated. Let's explain our position.

In accordance with Art. 72.1 of the Labor Code of the Russian Federation transfer to another job - a permanent or temporary change in the labor function of an employee and (or) the structural unit in which the employee works (if the structural unit was indicated in the employment contract), while continuing to work for the same employer, as well as transfer to work to another area with the employer. And the place of work and the labor function of the employee are mandatory conditions of the employment contract (Article 57 of the Labor Code of the Russian Federation).

Article 72 of the Labor Code of the Russian Federation states that changing the terms of an employment contract determined by the parties, including transfer to another job, is allowed only by agreement of the parties to the employment contract, which is concluded in writing.

Therefore, the basis for issuing a transfer order will be an amendment to the employment contract signed by both parties, namely, an additional agreement.

And in accordance with the Instructions for the application and filling out the forms of primary accounting documentation for accounting for labor and its payment, if an employment contract was not concluded with the employee (the employee was hired before 10/06/1992) and his hiring is issued by order, with filling unified form No. T-5, the line "Basis" indicates specific documents on the basis of which the employee will be transferred to another job (application, medical report, memo, etc.), and the requisite "Change to the employment contract" is not filled out.

In accordance with Art. 66 of the Labor Code of the Russian Federation, information about transfers to another permanent job is entered in the employee's work book (see Example 5). At the same time, the transfer record is drawn up no later than a week on the basis of the relevant order (instruction) of the employer (clause 10 of the Rules for maintaining and storing work books, preparing work book forms and providing employers with them, approved by Government Decree No. 225 dated April 16, 2003, hereinafter - Decree No. 225).

Temporary transfer

In this case, we will talk about a temporary change in the labor function of the employee or the structural unit in which the employee works (if the structural unit was indicated in the employment contract), while continuing to work for the same employer (Article 72.1 of the Labor Code of the Russian Federation). At the same time, temporary transfers to another job are regulated by Art. 72.2 of the Labor Code of the Russian Federation.

So, by agreement of the parties, concluded in writing, an employee can be temporarily transferred to another job with the same employer for up to one year.

Please note: if at the end of the transfer period the previous job was not provided to the employee, and he did not demand its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer becomes invalid and the transfer is considered permanent.

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, then it is valid until the employee returns to work.

The procedure for temporary transfers is similar to that for permanent transfers. The exception is that during temporary transfers, an entry in the employee's work book is not made out.

When does translation become mandatory?

Employee-initiated transfer

In some cases, the employee has the right to require the employer to temporarily transfer to another job.

For example, if an employee refuses to perform work in the event of a danger to his life and health, the employer is obliged to provide such an employee with another job while the danger is eliminated (Article 220 of the Labor Code of the Russian Federation).

Pregnant women and nursing mothers cannot be involved in the following work:

In this case, pregnant women, in accordance with a medical report and upon their application, are transferred to another job that excludes the impact of adverse production factors, while maintaining the average earnings from their previous job. Until a pregnant woman is given another position, she is subject to release from work with the preservation of the average earnings for all the days missed as a result of this. Meanwhile, women with children under the age of one and a half years, if it is impossible to perform their previous work, they are transferred at their request to another job with wages for the work performed, but not lower than the average earnings at the previous place of activity until the child reaches the age of one and a half years (Art. 254 of the Labor Code of the Russian Federation). Also, pregnant women and women with children under the age of three cannot be involved in work performed on a rotational basis (Article 298 of the Labor Code of the Russian Federation).

Transfer at the initiative of the employer and due to circumstances beyond the control of the parties

In some cases labor law allows the dismissal of employees only when it is impossible to transfer them to another job available to the employer, which the citizen can perform taking into account the state of his health. We are talking here about both vacant positions or work corresponding to the qualifications of the employee, and vacant lower positions or lower-paid work. In this case, the consent of the employee must be obtained. Please note that the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other areas only if it is provided for by the collective agreement, agreements, labor contract (Articles 81, 83 and 84 of the Labor Code of the Russian Federation). We are talking about the dismissal of employees in the following cases:

reduction in the number or staff of employees of the organization, individual entrepreneur(Clause 2, Article 81 of the Labor Code of the Russian Federation);
inconsistency of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification (clause 3 of article 81 of the Labor Code of the Russian Federation);
reinstatement at work of an employee who previously performed this work, by decision of the state labor inspectorate or court (clause 2, article 83 of the Labor Code of the Russian Federation);
disqualification or other administrative punishment, excluding the possibility of the employee fulfilling obligations under an employment contract (clause 8, article 83 of the Labor Code of the Russian Federation);
expiration, suspension for a period of more than two months or deprivation of an employee of a special right (license, right to drive a vehicle, the right to carry weapons, other special rights) in accordance with the law, if this entails the impossibility for the employee to fulfill obligations under an employment contract ( clause 9, article 83 of the Labor Code of the Russian Federation);
termination of access to state secrets, if the work performed requires such access (clause 10, article 83 of the Labor Code of the Russian Federation);
violation of the rules established by law for concluding an employment contract, if this violation was not committed through the fault of the employee and excludes the possibility of continuing work (clause 11, article 77 of the Labor Code of the Russian Federation).

We also remind you that an employee who needs to be transferred to another job in accordance with a medical report, with his written consent, the employer is obliged to transfer to another job he has that is not contraindicated for this citizen for health reasons. Meanwhile, if the specified person needs a temporary transfer for up to four months, refuses to transfer, or there is no corresponding job, then the employer must remove the employee from work for this period while maintaining the place of work (position). In this case, during the period of suspension, wages are not accrued to the employee. At the same time, if an employee needs a temporary transfer 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 the appropriate job, the employment contract is terminated in accordance with paragraph 8 of part one of Article 77 of the Labor Code of the Russian Federation (Art. 73 of the Labor Code of the Russian Federation).

As a rule, in all of the above cases, the employer sends the employee an appropriate notification or proposal to transfer the employee to the available vacant positions(see Example 6).

As a rule, the consent or disagreement of the employee in the transfer is drawn up in a separate document or is prescribed in the proposal for transferring to another job (see Example 7).

We would also like to remind you that according to Art. 74 of the Labor Code of the Russian Federation, in the case when, for reasons related to a change in organizational or technological working conditions, the terms of the employment contract determined by the parties cannot be saved, they can be changed at the initiative of the employer, with the exception of changing the labor function of the employee. Moreover, if the employee does not agree to work in the new conditions, the employer is obliged to offer him another available job in writing. In the absence of the specified work or the refusal of the employee from the proposed work, the employment contract is terminated in accordance with paragraph 7 of the first part of Article 77 of the Labor Code of the Russian Federation.

In some situations, an employee may be transferred without his consent for a period of up to one month to work not stipulated by an employment contract with the same employer in order to prevent the following cases or eliminate their consequences. We are talking about natural or man-made disasters, industrial accidents, accidents at work, fires, floods, famine, earthquakes, epidemics or epizootics, as well as any exceptional cases that endanger the life or normal living conditions of the entire population or part of it. .

The transfer of an employee without his consent for up to one month to another job is also allowed in cases of downtime, the need to prevent the destruction or damage to property, or to replace a temporarily absent employee, if these situations are caused by the emergency circumstances indicated above. At the same time, transfer to work requiring lower qualifications is possible only with the written consent of the employee himself (Article 72 of the Labor Code of the Russian Federation). Please note that for temporary transfers carried out in exceptional cases, remuneration is made according to the work performed, but not lower than the average earnings at the previous place of employment.

Note

When applying Art. 72.2 of the Labor Code of the Russian Federation, which allows the temporary transfer of an employee to another job without his consent, it should be borne in mind that the obligation to prove the existence of circumstances with which the law associates the possibility of such a transfer rests with the employer (paragraph 17 of the decision of the Plenum of the Supreme Court dated March 17, 2004 No. 2).

The transfer of an employee is also possible for the period of suspension of work due to the suspension of activities or a temporary ban on activities due to violation of labor protection requirements through no fault of the employee. At this time, the employee, with his consent, can be transferred by the employer to another job with wages for the work performed, but not lower than the average earnings at the previous place of activity (Article 220 of the Labor Code of the Russian Federation).

Transfer to another locality

Transfer procedure

In this case, the employer sends the employee an offer to transfer to work in another locality. Further, the consent or disagreement of the employee is drawn up in a separate document or prescribed in the transfer proposal itself.

With the consent of the employee, changes to the employment contract should be made. This is done through the signing of an additional agreement. To process the transfer, form No. T-5 or form No. T-5a, approved by Decree No. 1, is used. Then, on the basis of the order, marks are made in the employee’s personal card (form No. T-2 or No. T-2GS (MS)) and personal account ( form No. T-54 or No. T-54a).

Note

The arbitrators in paragraph 16 of the decision of the Plenum of the Supreme Court dated March 17, 2004 No. 2 noted that “other locality” should be understood as an area located outside the administrative-territorial boundaries of the corresponding settlement.

Please note that when an employee moves to work in another locality, the employer is obliged to reimburse him for the following expenses (Article 169 of the Labor Code of the Russian Federation):

for the relocation of the employee, members of his family and the transportation of property (except for cases when the employer provides the employee with appropriate means of transportation);
for settling in a new place of residence.

The specific amounts of reimbursement of expenses are determined by agreement of the parties to the employment contract. In this case compensation payments a citizen in connection with his relocation to work in another area is not subject to personal income tax (clause 3 of article 217 of the Tax Code of the Russian Federation) and unified social tax (subclause 2 of clause 1 of article 238 of the Tax Code of the Russian Federation), and can also be included in other expenses ( subparagraph 5, paragraph 1, article 264 of the Tax Code of the Russian Federation). Financiers also agree with this position (letters of the Ministry of Finance dated July 14, 2009 No. 03-03-06 / 2/140 and dated December 17, 2008 No. 03-03-06 / 1/688). At the same time, according to officials, the amounts reimbursed by the organization to a housing worker are subject to personal income tax and unified social tax in the usual manner (letters of the Ministry of Finance of July 13, 2009 No. 03-04-06-01 / 165 and of December 17, 2008 No. 03-03-06/1/688).

Employee refusal to transfer

The refusal of an employee to transfer to work in another locality together with the employer is the basis for the termination of the employment contract (clause 9, article 77 of the Labor Code of the Russian Federation). In this case, as in the case of a regular dismissal, form No. T-8 (or form No. T-8a), approved by Resolution No. 1, is used to formalize the termination of employment relations with employees (see Example 8).

On the day of dismissal, the employee, in addition to the amounts due, is paid a severance pay in the amount of two weeks of average earnings (Article 178 of the Labor Code of the Russian Federation). At the same time, an increased amount of severance pay may be established by labor or collective agreements (Article 178 of the Labor Code of the Russian Federation).

In this case, we are talking about the termination of the contract in accordance with paragraph 9 of the first part of Article 77 of the Labor Code (see Example 9).

Further, upon receipt of the work book, the employee signs in a personal card, as well as in the book of accounting for the movement of work books and inserts in them (clause 41 of Resolution No. 225). At the same time, the entry made in the work book is repeated in the personal card (clause 12 of Resolution No. 225).

Footnotes

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An employee with whom a temporary contract has been concluded works in your state. During the period of working with him, you looked closely at him, recognized his qualities and labor abilities, and decided to leave him in your organization for an indefinite period of work, that is, for a permanent position. In this regard, a logical question arises: how to transfer an employee from a temporary job to a permanent job?

How to transfer an employee from a temporary job to a permanent job

· To do this, it is necessary to conclude a permanent employment contract with the employee. And it is not at all necessary to carry out the procedure for dismissing an employee, and then again registering his admission to this place. You should make a normal translation. To begin with, the employee needs to write a statement where he will set out a request to transfer himself from temporary to permanent work.

In this application, he indicates the period of his work and the position he holds. It is necessary to have time to transfer the employee before the expiration of the temporary contract. If this is not done in time, then the employee will have to be fired and hired back, which means that the experience earned on vacation will be reset to zero.

· After receiving the application, an order is issued to transfer the employee, which also indicates the term of work, the position of the employee, the number of the contract, the date of its conclusion, etc.

· This is followed by the very procedure for concluding an agreement on the work of an employee for an indefinite period. This contract specifies the following data: the position of the employee, the salary assigned to him, the conditions in which he works and the conditions. Obligations and rights on the part of the employer and employee. This employment contract is drawn up in two copies, which are sealed by the signature of the head and the seal of the enterprise. One copy of the contract will be with the employee, the second copy is given to the personnel department.

· Notes are also made in the employee's work book, fixing the transfer by serial number and date.

· If an employee works for you part-time with another job, then you need to understand how to transfer the employee from a temporary job to a permanent one in this situation. The employee must either independently quit another job in order for you to take him to a permanent position, or the employee's second employer must transfer him. But for this, it is advisable for the employee to provide a note about your desire to accept him for a permanent job at a parallel job.

Transfer from a temporary position to a permanent one

Tatyana Yakovleva Enlightened (31536) 2 years ago

1. First, it should be noted that in this case it is not necessary to dismiss, and the transfer is enough.

2Write an application addressed to the head with a request to transfer to a permanent job. Also write down in the document the position, the period of work. The application must be submitted before the end of the term of the temporary employment contract. Otherwise, you will have to apply the dismissal procedure, which means that the length of service for vacation will be calculated from scratch.

3 Then they will issue an order to transfer you to a permanent basis, and the document will also indicate the period of his temporary work, the expiration date, the conclusion and the number of the employment contract.

4 After that, an employment contract will be concluded. They will write down the position, salary, working conditions and details of both parties. The employment contract will be drawn up in two copies, one of which will be transferred to the personnel department, the second - to you

5, an entry will be made in the work book.

Processing the transfer of an employee from temporary to permanent work

Problem

Good day! The situation is this:

Irina worked as a cleaner. She was temporarily transferred to the position of a social worker for the duration of the decree of the main worker of Maria.

During Irina's absence, we accepted Zoya under a fixed-term employment contract.

Maria left the decree ahead of schedule and on the same day she was transferred to the position of head. They made an order for the transfer of Maria, as well as for the transfer of Irina (that is, they recognized the transfer of Irina as permanent), they took applications for agreement with the transfers.

On this day, Zoya was on sick leave, instead of her, Nina also worked under a fixed-term contract. Since Zoya broke her arm, after the sick leave she also took a vacation.

The problem is that I don’t know from what date to make an order to transfer Zoya to a permanent basis and, accordingly, from what date to take an application from Zoya.

In fact, there was a fixed-term employment contract with Zoya and none of the parties demanded its termination. But somehow I had to notify the accounting department that the employee was transferred to a permanent job.

Please explain how to resolve this situation.

Question: The employer issued an order to temporarily transfer an engineer to the position of department head for a period of 1 year. Later, but before the expiration of this period, it was decided to appoint him to this position on a permanent basis. In this situation, should an order be issued to transfer an engineer to the position of head of a department on a permanent basis, or an order to transfer from a temporary job to a permanent job as a head of a department? (response from the legal consulting service GARANT, April)

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