Order for temporary transfer to a vacant position. Temporary transfer to another vacant position. Temporary transfers: types, features and procedure for registration

The employer is not entitled to issue a temporary transfer with the wording: "Up to one year", even if the employee agrees to this.

The condition that within a period of one year the employer has the right to unilaterally terminate the temporary transfer at any time and return the employee to his previous position will be unlawful.

Rationale: Transfer to another job is a permanent or temporary change in the labor function of an employee and (or) 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. As a general rule, transfer to another job is possible only with the written consent of the employee (by agreement of the parties), with the exception of certain cases (see parts 2 and 3 of article 72.2 Labor Code RF). This is enshrined in Art. 72, part 1, art. 72.1, Art. 72.2 of the Labor Code of the Russian Federation.

So, a temporary transfer to another job can be arranged by agreement of the parties, and in some cases - without the consent of the employee (see Article 72.2 of the Labor Code of the Russian Federation, which regulates a temporary transfer).

By agreement of the parties, concluded in writing, the employee may be temporarily transferred to another job with the same employer. A transfer can be issued both for a vacant position (place of work), and to replace a temporarily absent employee.

As a general rule, the period of temporary transfer should not exceed one year. An exception is established for the case when the transfer is carried out to replace a temporarily absent employee, for whom, in accordance with the law, the place of work is retained. In this case, the term of the transfer is associated with the start of work of the replaced employee.

The law does not directly establish how the term "up to one year" should be determined. In our opinion, such wording suggests that the employer and the employee must agree on a specific term for transferring to another job. In this case, the period must be determined within one year.

When transferring an employee to another job, it will not be enough to indicate that the transfer is made out "up to one year." Indeed, the law states that if, at the end of the transfer period, the employee was 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 (part 1 of article 72.2 of the Labor Code of the Russian Federation) . The term "transfer expiration date" implies that a temporary transfer must be established for a specific period.

Additionally, it should be noted that Art. 72.2 of the Labor Code of the Russian Federation, dedicated to temporary transfer, does not provide for a legal mechanism that would allow early termination of a temporary transfer unilaterally. Therefore, in case of a temporary transfer to another job by agreement of the parties, such a transfer can also be completed only by agreement of the parties. The initiator of the early completion of the transfer can be both the employee and the employer. At the same time, it does not matter whether a transfer to a vacant place of work is issued or to replace a temporarily absent employee, for whom, in accordance with the law, the place of work is retained.

The employer intends to temporarily transfer the employee to another vacant position, while the exact period for which the transfer will be required is unknown. Is it possible to issue a temporary transfer with the wording: “Up to one year”, if the employee agrees to this? Is it possible to issue a transfer on the condition that within a period of one year the employer has the right to unilaterally terminate the temporary transfer at any time and return the employee to his previous position?

Commentary on Article 72.2

1. Article 72.2, introduced by Federal Law No. 90-FZ of June 30, 2006, is specifically devoted to temporary transfer to another job. Unlike the previous rules, according to which a temporary transfer to another job was allowed only in case of production necessity (Article 74 of the Labor Code in the previous version), the new rules provide for the possibility of a temporary transfer to another job by agreement of the parties (part 1) and at the initiative of the employer without the consent of the employee in cases provided for by law (parts 2, 3).

2. In accordance with part 1 of the commented article, by agreement of the parties, concluded in writing, the employee may be temporarily transferred to another job with the same employer. The law does not name specific grounds on which such a transfer is allowed, and therefore it is possible for any reason, including for a vacant position (place of work) with this employer, but within the period established by law. As a general rule, this period should not exceed one year. An exception is established for cases of transfer to another job to replace a temporarily absent employee, for whom, in accordance with the law, the place of work is retained. In this case, the transfer period may be more than one year. It depends on the time of entry to work of the replaced worker.

Within the time limits established by law, the parties have the right to establish a specific period during which the employee will perform work not provided for by the employment contract.

At the end of the period of temporary transfer to another job determined by the parties, the employer may, and at the request of the employee is obliged to provide him with the previous job. However, if the term of the temporary transfer has expired, and the employee does not insist on the provision of the previous job and continues to work, then the condition on the temporary nature of the transfer becomes invalid. In this case, work in the position (profession, specialty) to which the employee was temporarily transferred is considered permanent for him, and the employer is not entitled to transfer him to his previous or other job without the consent of the employee.

3. Temporary transfer to another job to replace a temporarily absent employee should be distinguished from the performance by an employee on behalf of the employer of the duties of a temporarily absent employee along with work stipulated by an employment contract. Unlike a temporary transfer to another job, which is allowed both to a vacant position (place of work) and to replace a temporarily absent employee who retains (place of work) the position, the employee’s performance of the duties of a temporarily absent employee without releasing his main duties is allowed only to replace an employee who retains (place of work) position (for example, for the duration of a business trip, vacation, temporary disability). The performance by an employee on behalf of the employer of the duties of a temporarily absent employee along with work stipulated by an employment contract, in contrast to a temporary transfer to another job, is not limited by any period. This period is determined by agreement of the parties. The agreement of the parties on a temporary transfer to another job cannot be terminated early unilaterally by the employee or the employer, as is the case when the employee performs the duties of a temporarily absent employee along with his work. The procedure for paying for one and the other work also differs. If during a temporary transfer to another job, the employee’s remuneration is made according to the work performed, but not lower than the average earnings for the previous job, then for the performance by the employee of the duties of an absent employee without releasing him from his work, he is paid additional payments, the amount of which is determined by agreement of the parties commentary to Articles 60.2, 151).

4. Part 2 of the commented article provides for the grounds on which the employer has the right to transfer the employee temporarily to another job not stipulated by the employment contract, without his consent. The law does not establish an exhaustive list of such grounds, but clearly defines their nature - these are exceptional cases that endanger the life or normal living conditions of the entire population or part of it. These include, in particular, natural or man-made disasters, industrial accidents, accidents, floods, earthquakes, etc.

Only in the presence of these emergency circumstances is it possible to temporarily transfer an employee without his consent to another job and in case of downtime, which is understood as a temporary suspension of work for reasons of an economic, technological, technical or organizational nature, as well as if it is necessary to prevent the destruction or damage to property or to replacement of an absent employee (part 3 of article 72.2). In other words, the temporary transfer of an employee without his consent to work not stipulated by an employment contract can be recognized as justified only if this is necessary due to emergency circumstances that endanger the life or normal living conditions of the entire population or part of it. If the need for a temporary transfer of an employee to another job is caused, for example, by such reasons as equipment breakdown, untimely delivery of raw materials or materials, etc., and this is not connected with the emergency circumstances provided for in part 2 of the commented article, then such a transfer is only allowed by agreement of the parties.

It should be noted that in accordance with Art. 74 of the Labor Code in the previous version, the exceptional cases specified in parts 2 and 3 of the commented article were covered by such general concept as "manufacturing necessity". This concept is not used in the new edition.

5. The duration of one (each) transfer to another job without the consent of the employee in cases where such a transfer is necessary due to emergency circumstances that endanger the life or normal living conditions of the population, should not exceed one month. However, such a transfer may be repeated. This rule also applies to cases of temporary transfer to another job to replace an absent employee, i.e. transfer to another job to replace an absent employee due to emergency circumstances is not limited to one month during the calendar year, as provided for by Art. 74 of the Labor Code in the previous edition.

The job to which the employee is transferred in connection with the above circumstances (including to replace a temporarily absent employee) must correspond to his qualifications. If in this situation it is necessary to transfer to another job that requires lower qualifications, then such a transfer is allowed only with the written consent of the employee.

6. Temporary transfer of an employee to another job in all cases provided for in Art. 72.2, is allowed only with the same employer with whom he is in labor relations. At the same time, remuneration should be made according to the work performed, but not lower than the average earnings for the previous job.

In all cases, it is unacceptable to transfer to another job that is contraindicated for the employee for health reasons.

7. Article 72.2 gives the employer the unconditional right to transfer employees without their consent to work not stipulated by the employment contract in exceptional cases that endanger the life or normal living conditions of the population. In this regard, the employee cannot refuse such a transfer if it is carried out in accordance with the established requirements and the employee does not have valid reasons for refusing the transfer.

Refusal to perform work during a translation made in compliance with the law is recognized as a violation of labor discipline, and absence from work - absenteeism.

In doing so, it should be taken into account that, 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 by federal laws, until such danger is eliminated or from performing hard work and work with harmful and (or) dangerous working conditions, not provided for in the employment contract. Since the Labor Code does not contain provisions prohibiting an employee from exercising this right even when the performance of such work is caused by a transfer due to emergency circumstances, the employee’s refusal to temporarily transfer to another job in accordance with Art. 72.2 is justified for the above reasons (see clause 19 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004).

In this article, we will tell you how to arrange for the personnel officer to transfer employees to another job. Let's take a closer look the following types 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 pay special attention to 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 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 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 for his transfer from the same employer to another workplace, 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 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: if the transfer to another job is recognized as illegal, the employee must be reinstated at the previous 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 monetary compensation 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 of 01/05/2004 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).

• To whom: [email protected] website
• Subject: 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 in the event that labor contract did not enter into an agreement with the employee (the employee was hired before 10/06/1992) and his employment was issued by order, when filling out the unified form No. T-5, the line “Reason” 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 on transfers to another permanent job are included in work book employee (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 at their request, are transferred to another job that excludes the impact of adverse production factors, while maintaining the average earnings in the 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 an organization, an 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 state inspection labor 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 manage vehicle, the right to bear arms, other special rights) in accordance with the law, if this entails the impossibility for the employee to fulfill his 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);
• violations established by law the rules 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 the above cases, the employer sends the employee an appropriate notification or proposal to transfer the employee to the vacancies he has (see Example 6).

As a rule, the consent or disagreement of the employee in the transfer is drawn up in a separate document or prescribed in the proposal for transfer 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 changes 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. With absence said work or the employee refuses 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 a period of 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, his family members 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 to a citizen in connection with his moving to work in another locality are 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 taken into account as part of other expenses (subclause 5, clause 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 the employee renting housing 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 severance pay in the amount of a two-week 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

Collapse Show

This term refers to the movement of an employee to another position, to another department or locality. The transfer can be carried out on a permanent basis, or for a certain period of time. It can be carried out only with the consent of a person, with the exception of cases specifically stipulated in the Labor Code of the Russian Federation.

Temporary transfer to a vacant position

Transfers for a certain period of time are regulated by Article 72.2 of the Labor Code of the Russian Federation. It says that by agreement between the parties to the employment relationship, the employee can be transferred to another job, but only for a period not exceeding 12 months.

The translation order is as follows:

• Drawing up a written agreement, supplementing the existing employment contract, that the person will be transferred to another position temporarily;
• Issuing a transfer order. As a rule, a unified form T-5 is used for this.

In the case when, after the completion of the transfer period, the employee remains on new job by default, that is, none of the parties expressed a desire to return him to his previous position, then such a transfer becomes permanent. To do this, you need to issue the following documents:

• Another addition to the employment contract, in the form of an agreement that the temporary transfer is changed to permanent;
• An order that refers to a change in the transfer time.

Note! If the transfer was made to a vacant position with the wording “until the vacancy is filled”, the period of 1 year is still valid. Therefore, in order not to contradict the provisions of Article 72.2 of the employee, after a year it is necessary to transfer to the previous position, and then issue another transfer.

If there is a transfer of a temporary worker to another temporary job, then the registration procedure will not change. The only thing that the personnel department should take into account is that the duration of the transfer should not exceed the term of termination of the main contract, otherwise the employee may become permanent, that is, his contract is recognized as open-ended.

Temporary transfer of an employee to replace an absent employee

The case when a temporary transfer is carried out to a staff unit where there is already an employee, but is temporarily absent, is stipulated separately in the legislation. In this case, the transfer period is limited not to 1 year, but to the time of absence of the main employee. Accordingly, it may exceed the specified 12 months. For example, you can make a temporary transfer for three years if the employee went on maternity leave.

The order of registration will be the same as in the previous case.

Note! In the case of a transfer to the place of an absent employee, it is better not to put down a specific number as the end date, but to indicate an event that will mark the end of the transfer period. For example: “The transfer is carried out from 10/01/2017 until the end of the period of disability and the manager Esenina A.V. returns to work.”

Temporary transfer to another job without the consent of the employee

The Labor Code of the Russian Federation provides a list of factors and conditions under which an employee can be transferred without his consent:

• in the event of natural and man-made disasters, as well as other factors in which there is a risk of a threat to the life and health of people around;
• in the event of downtime, as well as to eliminate the risk of damage and loss of property, if these circumstances were caused by the factors listed above.

Such a transfer can be carried out for a period not exceeding 1 month.

Is a temporary transfer included in the work book

In accordance with Article 66 of the Labor Code, temporary transfer is not included in the list of information that must be reflected in the work book.

This means that when transferring for a certain time, an entry in the work book is not made.

But if, after the expiration of the transfer period, not one of the parties expressed a desire for the employee to return to his previous place of work, then the transfer from temporary turns into permanent, and, therefore, it must be reflected in the work book.

In this case, the actual date is affixed when the employee violated the performance of new duties. That is, in fact, the recording will be made later than the specified date. But at the same time, one more point must be taken into account - the details of which order should be entered into the labor? The legislation does not regulate this issue in any way. But in practice, it is recommended to make two orders in column 4:

• temporary transfer order (the date indicated in the document will coincide with the transfer date);
• an order to recognize the transfer as permanent (this order will contain the date when the transfer becomes permanent).

If, however, an entry has already been made in the workbook about the transfer for a while, which has not become permanent, then it is corrected in the same way as all incorrect entries in the workbook.

Conclusion

Temporary transfer involves the transfer of an employee to perform another job for a certain period. After the end of this period, he returns to his previous job, or the transfer becomes permanent. The transfer time should not exceed 1 year, except for cases when the transfer is made to a temporarily vacant position.

Sometimes an employer is faced with a situation where an employee is absent, while his work must be done. In this case, there is a way out for the employer - to temporarily transfer another employee to this position. We will consider the nuances of the design of such a translation in the material.

What to consider when transferring

Article 33 of the Labor Code regulates temporary transfer in case of operational necessity. In particular, a temporary transfer to replace an absent employee (hereinafter referred to as a temporary transfer). In this case, the employee may be temporarily transferred to a job that does not correspond to his profession, specialty, qualifications, position, including a job of a lower qualification or unskilled<*>. In this case, the employer must comply with the following rules:

1. To carry out a temporary transfer to replace an employee who is absent from him. An employer is not entitled to transfer an employee to replace an absent employee with another employer. This is due to the fact that the production need must take place at the direct employer of the worker.<*> .

2. Do not make a temporary transfer to a vacant position (profession), since the transfer is carried out only to replace an absent employee.

On a note
A vacancy is understood to mean a staffing a position (profession) that is not replaced by an employee who has an employment relationship with an employer on the basis of an employment contract for this position (profession)<*> . Accordingly, if an employee is on parental leave until he reaches three years of age, at military training, etc., then his position (profession) is not vacant.

Arbitrage practice

The employer temporarily transferred the employee in connection with the production need to replace the temporarily absent employee from the position of storekeeper of the steam power facilities to the position of storekeeper in the shipping department.

The employee considered the actions of the employer illegal, as she was transferred to a vacant position, and filed a lawsuit to cancel the temporary transfer order.

During the court session, it was found that the position was not vacant. The storekeeper of the shipping department is absent due to being on parental leave until he reaches the age of three.

The worker's demands were denied.

Decision of the district court dated 12/27/2017
Determination of the Judicial Collegium for Civil Cases of the Regional Court dated February 19, 2018

3. Not to carry out a temporary transfer to work that is performed on the basis of a civil law contract. Labor legislation does not apply to persons working in an organization on the basis of such contracts.<*>. These employees are not included in the staff of the organization (they do not hold a position). Accordingly, they cannot be classified as absent workers.

4. Produce without agreement employee temporary transfer for a period not exceeding one month during a calendar year(from January 1 to December 31)<*>. That is, when determining the period of temporary transfer without the consent of the employee, simultaneously take into account:
- calendar year. It must be distinguished from the employee's working year. If the employee, for example, was hired in October 2017, then the employer has the right to temporarily transfer him in December 2017 (calendar year 01.01.2017 - 12.31.2017) and in January 2018 (calendar year 01.01.2018 - 12.31. .2018);
- the duration of the temporary transfer, which during the calendar year cannot be more than one month. Please note that periods calculated in months expire on the corresponding day of the last month of the period.<*>. For example, a temporary transfer for one month can be made from 06/25/2018 to 07/24/2018.

Observing the specified requirements for the period of temporary transfer, the employer has the right to issue it several times during the calendar year without the consent of the employee. For example, twice for 10 and 15 days or three times for 5, 10 and 15 days. When determining the monthly period of temporary transfer in this case, we recommend proceeding from the fact that a month is 30 calendar days (the average monthly number of calendar days per year is 29.7 days and, accordingly, is rounded up to 30 days).

On a note
For some categories of forest industry and forestry workers, temporary transfer to another job not stipulated by an employment contract with the same employer for production needs, including to replace an absent employee, is possible for up to three months during a calendar year.

5. Make a temporary transfer only with employee's consent:
— if the period of temporary transfer is more than one month during the calendar
of the year<*> ;
- to another area<*>. Note that there is no definition of the term “other locality” in the legislation. In practice, as another locality, it is customary to understand the territory located outside the boundaries of the settlement in which the employee constantly works. To settlements includes cities, urban-type settlements and rural settlements<*> .

Example 1
Without the consent of the employee, the employer cannot temporarily transfer him from the city of Minsk to the village of Borovlyany.

Example 2
The employer has the right, without the consent of the employee, to temporarily transfer him from warehouse No. 1, located in the Moskovsky district of Minsk, to warehouse No. 2, located in Pervomaisky district of Minsk.

On a note
Temporary transfer must be distinguished from transfer. When moving, the employee is entrusted with the previous job, that is, his labor function is preserved, but changes<*> :
- workplace (place of permanent or temporary stay of an employee in the course of labor activity);
— structural subdivision (with the exception of a separate structural subdivision);
- a mechanism or unit.

6. Do not make a temporary transfer to a job that contraindicated employee for health <*>. In addition, for admission to certain types of work, the employer is obliged to send the employee to a preliminary or pre-shift medical checkup(hereinafter - medical examination).

On a note
For violation this rule responsibility is provided. So, the employee's admission to work:
- if it is contraindicated for him by medical opinion, it entails a fine in the amount of 5 to 40 basic units <*> ;
- if he did not pass a medical examination - a fine from 8 to 45 basic
quantities<*> .

7. Take into account the restrictions applicable to:
- certain categories of workers. For example, in some jobs it is forbidden to involve women, minors<*> ;
- specific employee. For example, a court verdict or a decision imposing an administrative penalty may impose a ban on holding certain positions or engaging in certain types of activities.<*> .

8. Not to carry out a temporary transfer to a job for which mandatory requirements for the level of education and (or) qualifications are established, if the replacement employee does not meet them<*> .

9. Make remuneration for the work performed, but not lower than the average salary for the previous job<*>. The calculation of average earnings is carried out in accordance with the Instruction on the procedure for calculating average earnings N 47.

The employer must also take into account that during a temporary transfer:
minor for work that is directly related to the storage, processing, sale (vacation), transportation or use in the production process of the values ​​transferred to the employee, it is impossible to conclude an agreement on full liability with him<*> ;
young specialist , a young worker (employee) (hereinafter referred to as a young specialist), the profession (position) to which the temporary transfer is carried out must correspond to the specialty (direction of specialty, specialization) and the qualifications of the young specialist<*> .

It should be noted that the refusal of an employee to perform work during a temporary transfer made in compliance with the law will be recognized as a violation of labor discipline, and absence from work - absenteeism<*> .

Note!
After the expiration of the temporary transfer period, the employer is obliged to provide the employee with the previous job in accordance with the employment contract. Upon the expiration of the period of temporary transfer, the employee has the right to stop the work to which he was temporarily transferred to replace the absent employee, and refuse to perform it.

How to make a temporary transfer

The algorithm for issuing a temporary transfer to replace an absent employee is as follows:

Step 1. We confirm the need for translation.

The absence of an employee is not always a production necessity. As a rule, its presence is assessed by the immediate supervisor of the absent employee. If he comes to the conclusion that without an employee the work process will be disrupted and this will negatively affect the activities of the organization, then he can issue an appropriate memorandum addressed to the employer.

An example of the wording of a memorandum:
"In connection with maternity leave and childbirth of the head of the department of labor and wages Petrova S.G. from 06/05/2018 to 10/08/2018 and the production need to replace an absent employee (the need to carry out administrative, regulatory and organizational and control functions in the department of labor and wages, operational decision-making, etc.), I ask you to temporarily transfer labor economist Smirnova S. G. to the position of head of the department of labor and wages to replace the head of the department of labor and wages Petrova S.G. for the period from 06/05/2018 to 10/08/2018″.

Step 2. We obtain the consent of the employee (if necessary).

Recall that the employer must obtain the consent of the employee only if:
- the period of temporary transfer is more than one month in a calendar year;
- the employee is temporarily transferred to another area.

To obtain consent, the employer can, for example, send an offer to the employee.

Example of sentence wording:
“Due to maternity leave and maternity chiefdepartment of labor and wages Petrova S.G. we offer you a temporary transfer to the position of head of the labor and wages department to replace the absent head of the labor and wages department Petrova S.G. from 06/05/2018 to 10/08/2018.

Please inform in writing about your consent (disagreement) to a temporary transfer to replace the absent head of the department of labor and wages Petrova S.G. for the period from 06/05/2018 to 10/08/2018″.

The employee can express consent to the transfer by writing an appropriate application.

An example of a statement wording:
“I agree to a temporary transfer to the position of head of the department of labor and wages to replace the head of the department of labor and wages Petrova S.G. for the period from 06/05/2018 to 10/08/2018.

Step 3. We issue an administrative document.

The employer, on the basis of documents confirming the need for translation (memorandum, vacation order, referral to advanced training courses, etc.), with the consent of the employee, if required, issues an administrative document. As a rule, the order<*> .

Note!
The employer is not obliged to warn the employee about the temporary transfer.

Step 4. We acquaint the employee with the order.

The employer is obliged to familiarize the employee with the order<*>. In it, the employee puts down:
- signature with decryption;
- date of introduction.

If the employee refuses to familiarize himself with the order, the employer should draw up an appropriate act in the presence of witnesses.

Note!
Changes to the employment contract (contract), as well as entries in the work book are not required<*> .

Step 6. We carry out briefing, training and testing of knowledge on labor protection issues.

The employer is obliged to conduct with the employee prior to his admission to independent work, to which he is transferred, briefing, training and testing of knowledge on labor protection issues.<*> .

When conducting them, the employer must be guided by:
- Law on labor protection N 356-З;
- Instructions on the procedure for training, internships, briefings and testing the knowledge of workers on labor protection issues N 175;
— Intersectoral and sectoral regulatory legal acts on the protection
labor and others.