Temporary translations of the base. Temporary transfer within the organization at the initiative of the employer. Nuances depending on the situation

12.12.2019

Translation is a permanent or temporary change labor function employee and/or structural unit in which he works (if the unit was indicated 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 unit 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).
Make a record of the transfer to another job in the 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 employee's rights, it is better to terminate the previously concluded employment contract and conclude a new fixed-term one.

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 the employment contract, in particular wages, 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 with temporary transfers, the entry in work book employee is not issued, 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 for a temporary transfer is issued.

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 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). 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 permanent translation, then if he refuses to transfer or if the employer does not have a relevant job, the employment contract is terminated in accordance with clause 8 of the first part of Article 77 of the Labor Code of the Russian Federation (Article 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). Judicial practice confirms this. 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 to acquaint the worker with the new job description 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.

The employer may transfer the employee with his consent to another position temporarily or permanently. Such a change of positions must be formalized by agreement of the parties, which is attached to the employment contract. Payment must be made not lower than his salary in the average monthly equivalent.

Let's allow a temporary transfer of your own employee, on his initiative, to a third-party employer under an outstaffing agreement. Outstaffing is not prescribed in the Labor Code of the Russian Federation, but it is equated to agency work and requires careful observance of the nuances in the process of registration. You can not prescribe the word rent, as it humiliates the dignity of the employee. You should choose the correct word forms.

The movement of a worker to a position must have a fixed period, which can be expressed in various forms:

For the vacation period of the main employee;
For the period of treatment of the main employee;
For the period of implementation of certain work, for example, the preparation of reporting documents, the implementation of projects;
The period of elimination of the accident due to production necessity.

Transfers are regulated by three articles of the Labor Code of the Russian Federation. Short-term transfers are allowed both within one organization and its branches, and to another industrial enterprise at the initiative of the worker.

Temporary transfer to another job due to production needs

This is the only way to force an employee to change the place and nature of the activity without his documented consent. But there are some nuances here. The management has no legal right to force an employee without his initiative to perform work that is mortally dangerous to his life, or that is contraindicated due to his state of health.

This type of change of activity of an employee cannot last longer than a month. If the consequences of an accident, emergency, military or natural disaster have not been eliminated within the specified period, such a transfer, if there is a production need, can be renegotiated repeatedly. This renegotiation does not require the written consent of the workers.

The maximum period of temporary transfer to another job

Maximum term, to which it is permissible to transfer an employee is a month. But in the case of replacing a colleague who is absent from the workplace, it can be increased. If after the specified period the colleague, in whose position the employee works, did not go to work, then, at the initiative of the employee, he receives this position permanently.

Temporary transfer to another job by agreement of the parties to the Labor Code of the Russian Federation

According to the content of Art. 72 of the Labor Code of the Russian Federation, in order to transfer an employee, there must be the consent of the employee in writing, or his initiative. Without fail, upon agreement of the parties, an additional annex to the agreement on labor activity, an order is issued where the reason for changing the contract is the agreement reached between the parties. The maximum period is up to twelve months inclusive.

Transfer of an employee to another position without the consent of the employee

It is possible only in case of production necessity. If the employee does not take the initiative and does not agree to give written consent, it cannot be transferred. This is a gross violation. Failure to comply with labor laws threatens the management with administrative responsibility. Without the consent of the worker, it is impossible to transfer him to another employer on a permanent or non-permanent basis.

Transfer of a temporary worker to another temporary job

Regardless of the specifics, form and complexity of labor activity, the term of the contract, which is an important condition, must be strictly observed. It is possible to transfer a temporary employee to a non-permanent job. But such a transfer does not change the term of the contract. Let's say in an enterprise:

Skvortsova replaces Solovyov for the duration of her decree;
Then Skvortsova is temporarily transferred to the position of Ivolgina;
Solovieva goes to work, which automatically terminates the temporary contract with Skvortsova;
Skvortsova continues to work in Ivolgina's position, which makes Skvortsova's employment contract indefinite;
If Ivolgina comes out of the decree, then Skvortsova cannot be fired.

Therefore, in staffing you need to order an additional rate. Or dismiss Skvortsova when Solovyov leaves and conclude a new contract before Ivolgina leaves the decree on her initiative.

Remuneration for temporary transfer to another job

Payment for labor activity cannot be lower than the average monthly salary for the main position of the employee. An exception may be cases if the change of position is caused by partial disability, or at the initiative of the employee.

If the employer decides to transfer the employee on his initiative to another organization, his remuneration is not assigned lower than in a similar position with another employer. Production necessity should not reduce the wages of workers.

In this article, we will tell you how to arrange for the personnel officer to transfer employees to another job. Let us consider in detail the following types of transfers: temporary and permanent, at the initiative of the employee and at the initiative of the employer, with the consent of the employee and without obtaining his consent. We will also turn Special attention on the procedure for transferring an employee to work in another area together with the employer.

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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Topic: Free consultations

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 employee has not been 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.

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 in case of 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 order

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

Labor legislation (Article 60 of the Labor Code of the Russian Federation) prohibits an employer from requiring an employee to perform work not stipulated by an employment contract, therefore, as a rule, transfers are allowed only with the consent of the employee, except for cases established by law.

It should be distinguished from transfer to another job moving an employee from the same employer to another workplace, to another structural unit in the same area, assignment of work on a different mechanism, unit. The movement does not require the consent of the worker. It will take place if the parties, when concluding an employment contract, did not specifically stipulate a workplace (mechanism, unit), structural unit as conditions of an 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 to the corresponding transaction give rise to two interrelated consequences: they suspend the initial (main) obligation for a certain period with the emergence of a new (temporary) obligation. Upon 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 type of 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 is allowed for up to one year. If the parties have agreed on a transfer in order to replace a temporarily absent employee who, in accordance with the law, retains a job (for example, in connection with parental leave), the duration of the transfer will be determined upon the fact that the replaced employee returns to work. If at the end of the period of 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 a number of grounds for the temporary transfer of an employee to another job at the initiative of the employer, which are divided into three groups. The first group of grounds includes circumstances relating 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 part of it), in the presence of which the employer has the right to unilaterally transfer the employee without his consent to 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 employer's business needs(in cases of downtime, the need to prevent the destruction or damage to the property of the employer, the replacement of a temporarily absent employee). The procedure for the implementation of such a temporary transfer depends on the reason that led to the emergence of a production need. So, if it is caused by the action of the previously mentioned extraordinary circumstances (for example, downtime due to flooding of industrial premises due to a flood), then a temporary transfer is allowed without the consent of the employee for up to one month. However, if the temporary job requires a lower qualification, the employer must obtain the written consent of the employee for such a transfer. If the production need is caused by other reasons, a temporary transfer is allowed in general order 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 institution of medical and social expertise establishes that the employee needs to be temporarily transferred to another job for a certain 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 of time to perform an official assignment outside the place of permanent work (Article 166 of the Labor Code of the Russian Federation). It is obligatory for the employee, and an unreasonable 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 area and at the place of work. Thirdly, a business trip involves the performance of a specific official assignment, and not the assignment of any other duties to it. In turn, a temporary transfer to another locality or to another place of work (including when the consent of the employee is not required) means that he must regularly perform a labor function during the entire period of transfer during the working hours established for him. Fourthly, in the event of a business trip, the provisions of the local regulations of the organization where the assignment is carried out are not applied to the employee, unless otherwise provided by local regulations or the order of the employer who sent him. In the case of a temporary translation, local regulations apply to the employee in general.

Permanent translation to another job, as a rule, is carried out by agreement of the parties to the employment contract. The motives for a permanent transfer can be: promotion at work at the request of the employee; the need of the employer to strengthen the personnel of the unit; grade professional achievements employee or, conversely, his lack of qualifications; decrease in the worker's ability to work; etc. In particular, if an employee, for health reasons, in accordance with the conclusion of an 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, the employment relationship is terminated.

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

Full text of Art. 72.2 of the Labor Code of the Russian Federation with comments. New current edition with additions for 2019. Legal advice under article 72.2 of the Labor Code of the Russian Federation.

By agreement of the parties, concluded in writing, the employee may be temporarily transferred to another job with the same employer 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, who, in accordance with the law, retains his job , - until the employee goes to work. If, at the end of the transfer period, the employee is not provided with the previous job, but 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 the event of a natural or man-made disaster, industrial accident, industrial accident, fire, flood, famine, earthquake, epidemic or epizootic, and in any exceptional cases that endanger the life or normal living conditions of the entire population or part of it, the 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 these cases or eliminate their consequences.

The transfer of an employee without his consent for a period of up to one month to work not stipulated by an employment contract with the same employer is also allowed in cases of downtime (temporary suspension of work for reasons of an economic, technological, technical or organizational nature), the need to prevent the destruction or damage of property, or replacement temporarily absent employee, if downtime or the need to prevent the destruction or damage of property or to replace a temporarily absent employee is caused by the emergency circumstances specified in part two of this article. At the same time, transfer to work requiring lower qualifications is allowed only with the written consent of the employee.
When transfers are made in the cases provided for in parts two and three of this article, the employee's remuneration is made according to the work performed, but not lower than the average earnings for the previous job.

Commentary on Article 72.2 of the Labor Code of the Russian Federation

1. The commented article deals with temporary translation. It should be considered in a systematic connection with, which establishes the possibility of concluding an agreement on changing the terms of an employment contract.

In the absence of a permanent transfer condition, temporary transfers are subject to a one-year time limit. In accordance with the requirements of Art. 14 of the Labor Code of the Russian Federation, terms calculated in years expire on the corresponding date last year. If the last day of the term falls on a non-working day, the expiration date of the term shall be the next working day following it.

At the same time, the commented article establishes that 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, the transfer period is set before this employee returns to work. In this case, the period of temporary transfer may be longer (for example, in the absence of the main employee due to parental leave). At the same time, the term of the transfer, which is considered temporary, is not specified. Its termination will actually depend on the desire and ability of the main employee to go to work.

If the term of the transfer has expired, the previous job was not provided to the employee, and he himself 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.

Thus, the legislator, setting the transfer period at one year, emphasized the right of the employee, despite the fact that the transfer was made by his own consent, to return to his previous place of work after a year. Corresponding to this right is the duty of the employer to provide such an opportunity.

If the period of temporary transfer is limited by the period of absence of the main employee, the rights of the latter are protected, since it is expected that he will return to the performance of his labor function.

If, after a year, the parties to the employment contract did not consider it necessary to exercise the above right, as in the case if the main employee did not go to work (for example, when terminating the employment contract with him or transferring), then the temporary transfer is transformed into a permanent one.

2. Transfer to another job without the written consent of the employee is possible only in cases provided for in parts 2, 3 of the commented article.

In case of emergency, in which the normal course economic activity becomes impossible, the employee may be transferred without his consent to work not stipulated by the employment contract with the same employer, but only to prevent these cases or eliminate their consequences, and for a period of up to one month.

Similarly, in cases of downtime, as well as if it is necessary to prevent the destruction or damage to property or to replace a temporarily absent employee, but only in cases where this is caused by emergency circumstances, the transfer of an employee without his consent to work not stipulated by an employment contract with the same employer is also allowed for up to one month.

At the same time, as emphasized by the Supreme Court of the Russian Federation, the employer has the right to transfer the employee to work not stipulated by the employment contract only in extraordinary cases, specified in parts 2 and 3 of Art. 72.2 of the Labor Code of the Russian Federation, or to eliminate their consequences. The employer must provide evidence of the existence of emergency circumstances that necessitated the temporary transfer of an employee without his consent to work not stipulated by an employment contract (determination of the Armed Forces of the Russian Federation of April 8, 2010 N 53-B11-1).

The following case is indicative. judicial practice. By order of the chief physician, T. was temporarily transferred to the position of a cardiovascular surgeon at the employer's polyclinic without his consent. According to the employer, the transfer of T. did not contradict the provisions of Part 2 of Art. 72.2 of the Labor Code of the Russian Federation, since the absence of a cardiovascular surgeon in the clinic of a regional hospital endangers the life or normal living conditions of the entire population or part of it, which is an emergency. However, the court disagreed with these arguments. The case under consideration, according to the court, is not extraordinary.

Paragraph 17 of the resolution of the Plenum of the Supreme Court of the Russian Federation on the application by the courts of the Labor Code of the Russian Federation provides that when applying parts 2 and 3 of Art. 72.2 of the Labor Code of the Russian Federation, which allow the temporary transfer of an employee to another job without his consent, the courts should keep 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. When considering this case, the employer did not provide evidence of the existence of emergency circumstances that necessitated the temporary transfer of the employee without his consent to work not stipulated by the employment contract. Accordingly, the employee was transferred under the pretext of operational necessity, in the absence of exceptional cases indicating the real need for such a transfer, in connection with which the said transfer was declared illegal.

Thus, the employer should not consider his own, even if high, need to transfer the employee to another job as an emergency.

3. The number of guarantees provided for an employee in the presence of emergency situations and his temporary transfer, according to parts 2 and 3 of the commented article, includes the following:
- even in such cases, transfer to work requiring lower qualifications can only be carried out with the written consent of the employee;
- with such transfers, the employee's remuneration is made according to the work performed, but not lower than the average earnings for the previous job (on the procedure for calculating the average wage and commentary on it).

Another commentary on Art. 72.2 of the Labor Code of the Russian Federation

1. General principle the stability of the employment relationship (see Art. 60, 72 and commentary thereto) extends its effect to cases of temporary transfers to another job. This means that, as a rule, a change in the content of the labor function and (or) the place of employment stipulated by the contract is carried out exclusively by agreement of the parties, concluded in writing (see article 72 of the Labor Code and commentary thereto).

At the same time, the legislator establishes some additional mandatory rules related to ensuring the principle of stability of the labor relationship. By virtue of part 1 of the commented article, if at the end of the transfer period the previous job was not provided to the employee, but he did not demand its provision and continues to work, then the condition on the temporary nature of the transfer becomes invalid and the transfer is considered permanent. Thus, the very fact of allowing the employee to work after the date indicated in the transfer agreement as the end of the transfer period means that the parties have reached a new agreement that the new job is permanent for the employee. With regard to a transfer to replace a temporarily absent employee, such an agreement is presumed for the case when this employee returned to work and at the same time the transferred employee is also not released from the transfer.

This rule also applies to cases where a change in the labor function has resulted in the employee being assigned to perform work in a different position, specialty or profession without being released from the previous job, i.e. in cases of combining professions, positions or expanding the service area (see article 60.2 of the Labor Code and commentary thereto).

Since part 1 of the commented article establishes the rules for temporary transfer to another job with the same employer, these rules do not apply to cases of temporary transfer of an employee to another employer. In the latter case, the law does not require the mandatory written execution of a transfer agreement (although a written form is appropriate), the terms of the transfer, including the condition of its duration, are determined solely by agreement of the parties; accordingly, the rule established by this article regarding the transformation of a temporary transfer into a permanent one is not valid. Therefore, if there is a need to transfer the employee to work with the employer at the place of transfer, such a transfer should be carried out according to the rules of dismissal in the order of transfer to another employer or by dismissing the employee according to own will with the subsequent conclusion of an employment contract with a new employer.

2. On the peculiarities of the temporary transfer to another job of pregnant women and women with children under the age of one and a half years, see Art. 254 of the Labor Code and commentary to it.

On the features of the temporary transfer to another employer of professional athletes, see Art. 348.4 of the Labor Code and commentary to it.

3. The employer has the right to transfer the employee to work not stipulated by the employment contract in order to prevent the extraordinary cases specified in parts 2 and 3 of the commented article, or to eliminate their consequences. In this regard, the Supreme Court of the Russian Federation indicates: when applying parts 2 and 3 of the commented article, which allow the temporary transfer of an employee to another job without his consent, the courts should bear in mind that the obligation to prove the existence of circumstances with which the law associates the possibility of such a transfer , is assigned to the employer (clause 17 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts Russian Federation Labor Code of the Russian Federation).

Transfer to another job in these cases is regulated by federal law, therefore, the right of the employer to make such a transfer, as well as the obligation of the employee to perform new job, arise directly from the law, regardless of whether it is provided as a condition of the employment contract. Work not stipulated by an employment contract is understood as work that may be outside the scope of the labor function stipulated by an employment contract.

The transfer in question belongs to the category of transfers carried out at the initiative of the employer. An employee's refusal to transfer is a disciplinary offense entailing disciplinary liability.

Translation in the order of the commented article has the following features: a) is possible in the presence of actual circumstances of an extraordinary nature; b) is temporary; c) can only be carried out with the same employer; d) is allowed if the employee retains the right to work of a certain quality.

4. The list of cases of an extraordinary nature, which are the basis for the transfer of an employee, is given in parts 2 and 3 of the commented article. If the employer carried out the transfer of an employee under the pretext of operational necessity, in the absence of exceptional cases indicating the real need for such a transfer, it is recognized as illegal.

Judicial practice proceeds from the fact that the transfer in question is possible if the employer had no other way to prevent or eliminate the circumstances indicated in the commented article. Shortcomings in the organization of labor cannot serve as a basis for such a transfer.

5. Translation in the order of the commented article is allowed for a period not exceeding one month. Since the law only limits the time limit and not the number of transfers, such a transfer can take place more than once, but whenever there is a corresponding exceptional reason.

If the action of the reason that caused the transfer in question lasts more than a month, the employee may be entrusted with performing work outside the stipulated labor function or place of work (structural unit), subject to obtaining his consent to this.

6. In accordance with the Labor Code, the transfer in question is allowed only with this employer. It does not matter that the circumstance that caused such a transfer may occur with another economic entity. Temporary transfer to another employer to eliminate these circumstances is possible only with the consent of the transferred employee.

At the same time, the legislator does not in any way limit the possibility of transferring, in connection with the circumstances specified in the commented article, to a subdivision of the employer's organization located in another locality.

7. When transferring in the order of the commented article, the employee cannot be assigned work that is contraindicated for him for health reasons.

An assignment to a transferred worker of work of a lower qualification than that stipulated by the employment contract is possible only with the written consent of the worker.

8. A transfer to replace a temporarily absent employee is a special case of temporary transfers of the type in question and is carried out on the basis of the general rules established for temporary transfers by the commented article.

9. Transfer to another job in the cases specified in the commented article is formalized by an order (instruction) of the employer, which must indicate the reason and term for the transfer, the work assigned to the employee and the conditions of remuneration (for the work performed, but not lower than the average earnings for the previous work).

10. The employer's order to transfer is binding on the employee, and unreasonable refusal of it is a disciplinary offense, entailing disciplinary liability.

If the employee does not go to work or returns to his previous workplace, his actions should be considered as absenteeism. If an employee enters a new workplace, while refusing to perform the corresponding work, his actions should be interpreted as a continuing disciplinary offense, for which several disciplinary sanctions may be announced, including dismissal for repeated failure to perform job duties(Clause 5, Article 81 of the Labor Code).

However, by virtue of par. 5 st. 219, part 7 of Art. 220 of the Labor Code, an employee cannot be subjected to disciplinary action for refusing to perform work in the event of a danger to his life and health due to violation of labor protection requirements, with the exception of cases provided for federal laws, until such a hazard is eliminated or from performing work with harmful and (or) hazardous conditions work not covered by the employment contract. Since the Labor Code does not contain norms prohibiting an employee from exercising this right, even when the performance of such work is caused by a transfer on the grounds specified in the commented article, the employee’s refusal to temporarily transfer to another job in accordance with Art. 72.2 of the Labor Code for the above reasons is justified (paragraph 19 of the Decree of the Plenum of the RF Armed Forces dated March 17, 2004 N 2).

Consultations and comments of lawyers on Article 72.2 of the Labor Code of the Russian Federation

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