Temporary transfer to another job and its registration according to the Labor Code of the Russian Federation. What is the difference between translation and displacement? The difference between a transfer to another job and a business trip

Transfer to another job

Translation is singled out as a special case because translation means changing not all, but only certain terms of the contract. Most often associated with spatial changes.

Article 72.1 signs of translation:

Transfer to another job:

1. permanent or temporary change in job function (except for a change in name (position)

2. permanent or temporary change in the structural unit if it is specified in the contract.

3. permanent or temporary change in the area where the work is carried out. (a change of locality should be distinguished from a business trip. The locality is related to the administrative-territorial structure in the corresponding subject, we are talking about a municipal entity. If we are talking about a long-term movement of an employee, then this can also be considered a transfer.)

4. change of employer. As a general rule, a change of employer entails the termination of the employment relationship.

There are exceptions

Temporary transfer is not defined by Article 72.1; it does not seem to happen, but it is allowed in relation to professional athletes.

If an employee is temporarily transferred to another employer, then the employment relationship, which is the main one, must be suspended (salary should not be paid); all this must be provided by the other employer, plus this must be another contract.

For athletes and coaches, the rights and obligations under the first agreement are exercised.

Everything else is not a translation.

Translation must be distinguished from such a concept as movement for 2 reasons:

As a general rule, relocation is associated with clarification of the place of employment of labor in the interests of the employer, i.e. there are no signs similar to translation, there is a clarification of the workplace, if the location is not specified, then we can continuously move it in space and clarify its workplace.

As a general rule, a transfer requires the consent of the employee. But movement does not require such consent.

Business trip to st. 166 of the Labor Code as a trip by order of the employer for a certain period of time to carry out an official assignment to a place other than the place of permanent work. A business trip is a one-sided transaction because... it is carried out in the interests of the employer, therefore consent from the employee is not required. A transfer always requires the employee's consent.

Classification of translations.

According to the timing of the transfer (validity in time) Art. 72.2. indicates the existence of 2 types of translations:

Temporary – there are 2 legal relationships: the main legal relationship is suspended, and the temporary one is valid for a certain period; accordingly, after the termination of the temporary one, permanent ones are returned.

Permanent – ​​returning to previous responsibilities is impossible.

Based on:

Agreements of the parties (agreement of both)

Employee initiative (unilateral transaction)

Employer's initiative (unilateral transaction)

Initiative of 3 persons, combined with the actions of the employer.

By purpose:

Due to production needs (downtime, replacement of a temporarily absent employee)

To strengthen personnel.

To prevent employee disability (occupational disease, temporary decrease in working capacity)

Transfers due to extraordinary circumstances (natural disasters, catastrophes, disaster relief)

By action in space:

Transfers in the same area

Transfers to another location

Transfers to another employer

According to the order of transfer:

By agreement of the parties (according to the parties)

With the consent of the employee, when a formal agreement is not required, but an expression of desire is required.

Without the employee's consent

Often in companies there are situations when an employee needs to be transferred to another position temporarily, until the circumstances that caused such a change in the clauses of the employment contract are eliminated - medical indications, production needs, etc. Such a transfer requires proper documentation and recalculation of wages. In this article we will talk about the intricacies of temporary transfer to another job.

Differences between temporary transfer and other types of labor functions

The main legislative provisions of a temporary transfer, regardless of its reasons, are defined in Article 72.2 of the Labor Code of the Russian Federation: these provisions apply only if the employee has an employment agreement with the employer and within the same organization with the same employer. If there is a production need to transfer an employee to another employer, then in such a situation completely different rules apply (with the exception of athletes, but more on that below). Temporary transfer, excluding some cases described by federal labor legislation, is made only with the written consent of the employee with the conclusion of an additional agreement.

Temporary transfer and business trip. Firstly, business trips include trips by an employee at the order of the employer for any period of time to carry out business assignments outside his permanent place of permanent work (Article 166 of the Labor Code of the Russian Federation). Such trips are mandatory, and unreasonable refusal from them can be considered a violation of labor discipline, while temporary transfer, as a rule, is possible only with the consent of the employee (by agreement of the parties).

Secondly, unlike a business trip, it can be carried out in the same area and place of work.

Thirdly, a business trip involves the fulfillment of a specific official assignment, and not the assignment of any other duties to the employee, that is, it does not entail a change in the essential terms of the employment contract, and a transfer to another location or place of work assumes that the employee regularly performs work duties. functions during the entire period of transfer during working hours.

And fourth: the provisions of local regulations of the company where he carries out instructions from management are not applied to a posted worker, unless otherwise provided by the local regulations of his direct employer. When an employee is transferred temporarily, the effect of local regulations applies to him in the general manner.

Temporary transfer and part-time work. Do not confuse the temporary transfer of an employee to another job with part-time or part-time work. The definition of part-time work is specified in Article 282 of the Labor Code of the Russian Federation. It means that an employee carries out other paid work activities in his free time from his main job, while the law does not limit the number of such part-time jobs, most importantly, not to the detriment of his main job responsibilities.

For part-time work, a separate employment contract is concluded indicating that this activity is not the main one. Part-time work happens:

1. Internal, when they work for the same employer, in the same organization.
2. External, if the citizen works in other organizations and with other employers.

Temporary transfer and combination. Let us note that a temporary transfer to another job must be distinguished not only from relocation, but also from the performance by an employee, on behalf of the employer, of the duties of a temporarily absent employee simultaneously with the duties stipulated by the employment contract, that is, combining duties. The concept of “combination” is contained in Art. 60.2 Labor Code of the Russian Federation. Here, the law does not limit the period for fulfilling duties: it is determined by agreement of the parties. In this case, the employee is not released from his main job and performs the duties of another employee during the main time, that is, a large burden falls on the employee. When combined, an employee can perform additional work in different professions. With this type of employment, the law does not require the conclusion of a new employment agreement, which distinguishes part-time work from part-time work. In this case, an employee who temporarily replaces an absent employee is subject to, in accordance with Art. 60.2 and 151 of the Labor Code of the Russian Federation, an additional payment, the amount of which is also established by agreement between the employee and the employer.

Translation and relocation. The content of the concepts “temporary transfer” and “relocation” is associated with the concept of labor function. Its definition is described in Article 57 of the Labor Code of the Russian Federation. The labor function is understood as

1) work in a particular position determined by the staffing table, by profession and specialty with the obligatory indication of the employee’s qualification level,

2) the specific type of work activity assigned to the employee.

That is, both permanent and temporary transfer to another job entails a change in the clauses of the employment agreement, since this changes

1) the employee’s labor functions and (or) the department in the company structure where he works (if the department was specified in the employment contract),

2) the place of work itself, if the employee is sent to work in another area together with the employer, while the employee continues to work for the same employer.

The labor function and place of work are essential terms of the employment contract, and their changes almost always require the consent of the employee, therefore the transfer is formalized by an additional agreement to the employment contract.

Temporary or permanent relocation, for example, transfer of an employee within the same organization to another workplace, assignment of work on another mechanism does not require the consent of the employee, because these actions do not entail a change in labor functions or essential terms of the employment contract (Part 3 of Article 72.1 of the Labor Code of the Russian Federation ). These circumstances are also indicated by the Constitutional Court of the Russian Federation in its ruling dated June 19, 2007 No. 475-О-О. The judges' conclusions were made in relation to the norm of Article 72.1 of the previous edition of the Labor Code, which was in force before the Federal Law No. 90-FZ of June 30, 2006 came into force, but they can be taken into account in relation to the current code. This is explained by the fact that the legal understanding and content of the relationship between the parties to the employment contract during the transfer has not changed significantly.

Important! If the employment contract does NOT specify a structural unit, the transfer of an employee from the same employer to another workplace, to another structural unit located in the same area is considered a relocation.

Table 1. Differences between translation and relocation

Important! When moving and transferring, it is prohibited to move an employee to a job that is not suitable for him due to health reasons.

Types of temporary transfer

Lawyers distinguish the following types of translation:

Important! As soon as the circumstances of the temporary transfer cease to apply, the employee is returned to his previous place. If the employee’s previous job is not provided, and he does not require it and continues to work at the place of transfer, then the agreement on the temporary nature of the work loses force, and the previously completed transfer becomes permanent. All rules for registering a permanent transfer apply to it - from drawing up an additional agreement to making an entry in the work book, and the date of transfer is considered the first day of the temporary transfer.

Let us note that such behavior of the employer is erroneous when the employee was dismissed after the end of the transfer period, since another employee was hired in his previous place. It is worth remembering that during a temporary transfer, the employee retains his job and he has the right to return to it after the expiration of the transfer period. This case was considered by the Russian Constitutional Court. The conclusion made by the judges is contained in the Determination of the Constitutional Court of the Russian Federation dated December 24, 2013 No. 1912-O, where the court explains that in Art. 72.2 of the Labor Code of the Russian Federation provides for cases of temporary transfer to another job, while by written agreement of the parties, an employee can replace a temporarily absent employee, and in accordance with regulatory legal acts, his place of work is retained until this employee returns to work. At the end of the transfer period, the employee is guaranteed the return of his previous position; if the employee did not occupy it and did not demand its provision and continues to work at a temporary place of work, then the condition of the agreement on the urgent nature of the transfer loses force and the transfer is considered permanent.

Table 2. Documentation of temporary transfer

Video - Temporary and permanent transfers to another job

Let's take a closer look at some of the features of temporary transfer of employees to another job.

Temporary transfer with the consent of the employee

Temporary transfer to another job can be carried out by written agreement of the parties. The employer first offers the employee a vacant position or a position where an absent employee needs to be replaced. Then, if agreed, an additional agreement is concluded on a temporary transfer to another job, position or to another structural unit. The period is up to one year, and if the transfer occurs to the position of a temporarily absent employee - until he appears in the service. This temporary approach is now being used to temporarily fill a vacant position until a permanent employee takes it.

With a temporary transfer, it is also possible to change the salary amount. This is an essential condition of the employment contract, and the law imposes restrictions on its changes. Limits allowed by part 4 of Art. 72.2 of the Labor Code of the Russian Federation are defined as follows: wages must be no lower than the average earnings for the previous job. In addition, the same clause stipulates the prohibition of transferring an employee to a job that is contraindicated for him for health reasons. But, if the employee has the consent, then he can be transferred to work with harmful or dangerous working conditions.

As for documenting a temporary transfer to another job, the employer issues an appropriate order (instruction) containing information about the reasons for the temporary transfer, labor functions, payment terms and the duration of this transfer.

Download the unified form T-5 in .rtf format:

If a temporary transfer is carried out to a vacant position, it is better to determine the expiration date of the transfer, and if to replace a temporarily absent employee, it is worth determining the condition upon the occurrence of which the employee will return to his previous job, since the absent employee may return from vacation or sick leave later.

Important! If an employee is transferred to another job or position, he must be familiarized with the job description and other local regulations that are relevant to the performance of this work. In addition, it may be necessary to conduct training in TY or conclude an agreement on financial liability.

Temporary transfer of an employee without the employee’s consent

Let us note that the written consent of the parties is almost always required, with the exception of situations provided for in parts 2 and 3 of Art. 72.2 of the Labor Code of the Russian Federation (their list is exhaustive). Such extraordinary circumstances include natural or man-made disasters, accidents and industrial accidents, cataclysms, widespread livestock diseases, epidemics and other exceptional cases that threaten people’s lives or the normal conditions of their existence - in these cases, the employer can transfer the employee to a job not provided for by work contract for work for a period of up to 1 month to prevent these cases or eliminate their consequences.

The second group of circumstances under which it is possible to transfer an employee without consent is dictated by production necessity. At the initiative of the employer, a temporary transfer is carried out during downtime, and also, if it is necessary to prevent destruction or damage to property, to replace any employee who is temporarily absent, if these cases are caused by emergency circumstances. If new job functions require lower qualifications, such a transfer is permitted only with the written consent of the employee.

Important! The employer’s initiative in such cases is limited only by a very vague wording, which is not specified in labor legislation - in this case we are talking about exceptional situations that threaten “the life or normal living conditions of the entire population or part of it.” In this part, some employers may abuse their right.

If the transfer period exceeds the limit established for temporary transfers, then even in situations of urgent need, the transfer is carried out only with the written consent of the employee. Labor legislation does not indicate anywhere the number of temporary transfers of an employee per year, since in such exceptional cases work is carried out that cannot be foreseen or postponed.

The Plenum of the Supreme Court of the Russian Federation commented on the application of parts 2 and 3 of Art. 72.2 of the Labor Code of the Russian Federation, which allow the urgent transfer of an employee to another job without his consent: the court once again clarified that the obligation to prove the existence of reasons on the basis of which the transfer can be made is assigned to the employer.

An example from judicial practice. Thus, S. has worked as a cardiovascular surgeon at the Pskov Regional Hospital since 1999. By order of the head physician, he was temporarily transferred without his consent to the clinic of the regional hospital to the position of cardiovascular surgeon. The reason for the transfer was the need to fill a vacant position and in order to prevent a threat to the life and health of the population. Considering such a transfer illegal, S. refused to perform his duties at the clinic. For this they were subjected to disciplinary action in the form of a reprimand. The court declared both the reprimand order and the temporary transfer order illegal, since the management of the institution did not provide evidence of the existence of extraordinary circumstances that explained the need for a temporary transfer without the employee’s consent (appeal ruling of the Pskov Regional Court dated October 2, 2012 in case No. 33-1580).

In terms of remuneration in a situation of forced temporary transfer, the state guarantees the following:

1. If the wages for the new work performed exceed the average for his usual job, then he is paid the wages for the work performed (in fact, an additional payment is added to his previous salary).
2. If the wages for work performed as a temporary transfer are lower than the employee’s average earnings for his previous job, then he is paid his previous average earnings, determined in the prescribed manner).

Let us note that the employer has the right (but this is not an obligation) to provide additional financial incentives to employees who are temporarily transferred to another job without their consent.

Important! If an employee refuses to perform work during a legitimate transfer, then in this case he violates labor discipline; in case of absenteeism, such behavior is recognized as absenteeism.

Right to refuse forced transfer

On the basis of Part 1 of Article 219, Part 7 of Article 220 of the Labor Code of the Russian Federation, a disciplinary sanction cannot be imposed on an employee for refusal to perform duties if there is a danger to his life and health due to violation of labor protection requirements, until such danger is eliminated and except in cases provided for federal legislation. An employee also has the right to refuse, without consequences, to perform work of a difficult nature, with harmful and (or) dangerous working conditions, if they are not provided for in the employment contract. Let us note that the Labor Code of the Russian Federation does not contain articles that prohibit employees from using the above right even in the situation of an employee’s refusal to temporarily transfer to another job.

Temporary transfer of an employee due to health reasons

In accordance with Art. 73 of the Labor Code of the Russian Federation, the employer is obliged to transfer the employee to another job (position) if he needs it in accordance with a medical report. Moreover, other work should not be contraindicated for the employee due to health reasons. A medical report is issued in accordance with the procedure established by Order of the Ministry of Health and Social Development of the Russian Federation dated May 2, 2012 No. 441. A sick leave certificate is not considered a medical report. Such a transfer is also carried out with the written consent of the employee. When receiving a medical report from an employee, you must pay attention to the transfer period indicated in the certificate, since the employer’s further actions depend on this.

If an employee is indicated for a temporary transfer to another job for a period of up to 4 months, the employer must offer him another job that is suitable for health reasons. If there is no one or the employee rejects the vacancy, the employer removes him from work, retaining his place of work (position) for the entire time specified in the medical certificate. To do this, the employer issues an order in any form. The order specifies the period for which the employee is suspended. If the period is not specified, upon admission to work, the personnel service issues an appropriate order.

When an employee is transferred to another job in accordance with a medical certificate to a lower-paid job, the employer retains his previous average earnings for a month from the date of transfer, and when transferred due to work injuries or the presence of an occupational disease - until the employee returns to work or permanently loses ability to work (Article 182 of the Labor Code of the Russian Federation).

If an employee who, in accordance with a medical report, needs a temporary transfer to another job for a period of up to 4 months, refuses the transfer or the employer does not have the corresponding job, then the employer is obliged to suspend the employee from work for the entire period specified in the medical report while maintaining his job. (positions). During the period of inadmissibility to work, the employee’s salary is not accrued, except in cases provided for by labor legislation, collective or individual agreements. Please note that if the employer refuses a vacancy or has no vacancies, the employment contract is not terminated, the employee is simply suspended from work, as a rule, without saving his salary.

If, in accordance with a medical report, an employee needs a temporary transfer to another job for a period of more than 4 months or a permanent transfer, then if he refuses the transfer or the employer does not have the appropriate work, the employment contract is terminated under clause 8 of part 1 of Art. 77 of the Labor Code of the Russian Federation - the employee’s refusal to transfer to another job, which he needs in accordance with a medical report, or the employer does not have the appropriate job. Upon dismissal in this case, the employee is paid compensation - two weeks' average earnings (Part 3 of Article 178 of the Labor Code of the Russian Federation).

Organization of translation for pregnant women

Transfer for medical reasons is regulated by Article 73 of the Labor Code of the Russian Federation, but the special provisions of Article 254 of the Labor Code of the Russian Federation take precedence, since they regulate the specifics of transfers of pregnant women and employees who have children under 1.5 years of age.

If a woman expecting a child has a medical certificate, then she is temporarily transferred to another job that excludes the influence of unfavorable production factors, while she retains her earnings from her previous job. Until another position is provided, the pregnant woman is released from work while maintaining the average earnings for all working days missed due to waiting for a vacancy at the expense of the employer. A similar guarantee is provided for women with children under the age of one and a half years. The latter, if it is impossible to perform the previous job, are also subject to temporary transfer upon their application to another job with wages for the work performed, but not lower than the average earnings for the previous job until the child reaches the age of one and a half years. The employer has no right to refuse to make such transfers.

If the term of the employment agreement with a pregnant woman expires during her pregnancy and it was concluded during the performance of the duties of the absent employee, then in this case the employer is obliged to offer the employee a new position (Part 3 of Article 261 of the Labor Code of the Russian Federation) for transfer. The law allows the dismissal of a woman at the end of the employment contract during her pregnancy and the impossibility, with her written approval, of transferring before the end of pregnancy to another job that is available to the employer (a free position at the level of the woman’s work experience, lower-level or less paid), Moreover, her state of health allows her to perform the proposed duties. The employer is obliged to offer the pregnant woman all of his vacancies that meet legal requirements in the given area. Company management is obliged to offer vacant positions in other localities if such an option is provided for in a collective or individual agreement.

If the employee agrees to the transfer, then the parties sign an additional agreement to the old contract with the inclusion of amended clauses (about labor function, place of work, term of the employment contract).

Temporary transfer of an athlete

Unlike other types of temporary transfer, which are carried out only within one organization and employer, this is a special type of temporary transfer - it can be carried out to another employer. So, on the basis of Art. 348.4 of the Labor Code of the Russian Federation, in cases where the employer is not able to ensure the participation of an athlete in sports competitions, a temporary transfer of the athlete with his written consent is allowed to another employer for a period not exceeding one year, and an agreement has been reached between the employers. In this case, the employer at the place of temporary work enters into a fixed-term employment contract with the athlete in accordance with the requirements of Art. 348.2 Labor Code of the Russian Federation. During the transfer, the original employment contract is suspended, but the duration is not interrupted.

If an athlete wants to work part-time in such a situation, then permission must be obtained from both the main and temporary employers.

If a temporary employment contract is terminated early for any of the reasons provided by law, the contract, the originally concluded contract, is valid in full from the next initially working day after the calendar date with which the termination of the temporary employment contract is associated.

When the period of temporary transfer to another employer expires and the athlete continues to work there, and none of the parties to the agreement demands termination of the temporary labor contract and renewal of the original one, then the latter is terminated, and the validity of the employment contract concluded for the period of temporary transfer is extended for a period determined by agreement of the parties, and in the absence of such agreement - for an indefinite period.

Temporary transfer due to suspension of special rights

Temporary transfer of an employee whose labor functions are related to the presence of a special right, license, or permit is the responsibility of the employer if this right is suspended for a period of up to two months. These are categories of workers such as drivers, hunters, security guards, ship crew members, etc. The employer must offer employees all vacancies, including lower positions, that the employee can occupy taking into account his state of health. Free places are offered both in the area where the company is located and in another, if this is provided for by the collective and labor agreement. All these proposals are carried out in any form. In this case, an order on suspension from work is not issued, since the employee is transferred to another position. If the employee refuses the offered vacancies, the employer by order removes him from work.

It is also necessary to take into account the fact that if the employment contract defines duties that an employee can perform without special rights, then he is suspended from work only in relation to the performance of specific tasks and functions, and not from work in general.

An employer has the right to terminate an employment contract with an employee who is deprived of a special right for a period of more than two months, but only when he cannot be transferred to other positions (Article 83 of the Labor Code of the Russian Federation). Information about available places in the institution is presented to the employee in the form of an offer in any form. He must write on the document whether he agrees or refuses the vacancy. The legislation does not establish the time for the employee to make a decision, but according to the usual interpretation of Article 76 of the Labor Code of the Russian Federation, the employer is obliged to dismiss the employee immediately after receiving information about the suspension of the special right and the impossibility of transferring him to another job. It follows from this that the employee must agree to a vacant position or refuse it at the time of familiarization with the list of vacant positions. If the transfer is agreed to, no dismissal order is issued; the parties sign an additional agreement to the employment contract, and then a transfer order is issued; in case of refusal, the employee is fired.

Important! The employer is obliged to offer vacancies that are available at the time of suspension (deprivation) of rights, and not those where, for example, the employee is temporarily absent (he is on maternity leave or vacation).

The legal nuances of temporary transfer to another job are not limited to the material described above. Each specific case, if it has become the subject of a legal dispute, may have its own characteristics, therefore, if a particular translation raises more questions, it is better to seek advice from either a professional lawyer specializing in labor relations or the local branch of the State Labor Inspectorate .

Video - How to arrange a transfer to another job

1. According to Article 166 of the Labor Code of the Russian Federation, a business trip is recognized as sending an employee to perform a production task not only to an organization located in another area, but also to an organization located in the same area.

2. Sending an employee for retraining and advanced training courses is not a business trip.

The relocation of an employee for a certain period of time to another structural unit of the organization located in the same area, if this does not entail a change in the terms of the employment contract determined by the parties, is not a business trip. The difference between a business trip and a temporary transfer to another job is that the temporary transfer takes place with the same employer (see Article 72.2 of the Labor Code).

3. Employees who have an employment relationship with the employer are sent on a business trip. The term of the concluded employment contract cannot serve as a restriction on sending an employee on a business trip, for example, concluding an employment contract for the duration of temporary (up to 2 months) work.

4. The specifics of the procedure for sending employees on business trips both on the territory of the Russian Federation and on the territory of foreign states are determined by the Regulations on the specifics of sending employees on business trips, approved. Decree of the Government of the Russian Federation of October 13, 2008 N 749 (Part 2 of Article 166 of the Labor Code of the Russian Federation).

5. The place of permanent work should be considered the location of the organization (a separate structural unit of the organization), the work in which is stipulated by the employment contract (paragraph 1, paragraph 3 of the Regulations on business trips).

A trip by an employee sent on a business trip by order of the employer or a person authorized by him to a separate unit of the sending organization (representative office, branch) located outside the place of permanent work is also recognized as a business trip (paragraph 2, clause 3 of the Regulations on business trips).

6. Employees are sent on business trips by order of the employer for a certain period of time to fulfill an official assignment outside their place of permanent work. An employee is sent on a business trip by the head of the organization and is formalized by an order (instruction).

7. According to the Regulations on official business trips (paragraph 1, paragraph 4), the duration of the business trip is determined by the employer, taking into account the volume, complexity and other features of the official assignment. In this regard, it should be recognized that currently the duration of the business trip is set solely by the employer.

The purpose of the employee’s business trip is determined by the head of the sending organization and is indicated in the official assignment, which is approved by the employer (clause 6 of the Regulations on Business Travel).

Based on the job assignment, the organization's personnel service issues an order to send the employee on a business trip.

8. The day of departure on a business trip is the date of departure of a train, plane, bus or other vehicle from the place of permanent work of the business traveler, and the day of arrival from a business trip is the date of arrival of the specified vehicle at the place of permanent work. When a vehicle is sent before 24 o'clock inclusive, the day of departure on a business trip is considered the current day, and from 00 o'clock onwards - the next day.

If a station, pier or airport is located outside a populated area, the time required to travel to the station, pier or airport is taken into account.

The day the employee arrives at his place of permanent work is determined similarly.

The issue of an employee’s attendance at work on the day of departure on a business trip and on the day of arrival from a business trip is resolved by agreement with the employer (clause 4 of the Regulations on Business Travel).

9. Employees seconded to the organization undergo induction training in accordance with the established procedure. Before starting independent work, they are given initial instruction at the workplace (clauses 2.1.2, 2.1.4 of the Procedure for training in labor protection and testing knowledge of labor protection requirements for employees of the organization, approved by Resolution of the Ministry of Labor of Russia No. of January 13, 2003 1 and Ministry of Education of Russia N 29 // BNA RF. 2003. N 17).

10. When applying Article 166 of the Labor Code of the Russian Federation, it should be taken into account that employees on a business trip are subject to the working hours and rest hours of the organization to which they are sent. Rest days not used during a business trip are not provided upon return from it.

Payment for an employee if he is involved in work on weekends or non-working holidays is made in accordance with Art. 153 TK.

When an employee is sent (by order of the employer) on a business trip on a day off, upon returning from the business trip - at his request - he is given another day of rest.

11. Accidents that occurred to employees during a business trip, incl. when traveling to and from the place of a business trip, they are subject to investigation and recording (see commentary to Article 227).

12. Upon returning from a business trip, the employee is obliged to submit to the employer within 3 working days:

• an advance report on the amounts spent in connection with the business trip and make a final payment for the cash advance for travel expenses issued to him before leaving for the business trip. Attached to the advance report is a duly executed travel certificate, documents on the rental of accommodation, actual travel expenses (including an insurance premium for compulsory personal insurance of passengers on transport, payment for services for issuing travel documents and providing bedding on trains) and other expenses related to a business trip;
• a report on the work performed on a business trip, agreed upon with the head of the employer’s structural unit, in writing (clause 26 of the Regulations on business trips).

13. If permanent work is carried out on the road or has a traveling nature (for example, the work of drivers, conductors), then such business trips are not business trips. For reimbursement of expenses associated with such business trips of employees, see comment. to Art. 168.1.

The Labor Code does not directly explain the correctness of the procedure for transferring a worker to a place of work in another region. At the same time, from the provisions of Part 1 of Art. 72 of the Labor Code of the Russian Federation it follows that such a transition is carried out jointly with the employer.

The reasons that prompted a legal entity or entrepreneur to decide to transfer the company to another locality may be economic feasibility, political motives, demographic situation, etc.

Also, for example, an employer may move with the company for personal or family reasons.

Changing the place of work in the event of transfer to another region is allowed only by mutual agreement of the parties to the employment agreement. Such a transfer will fall into the advanced category when the legal address of a company or institution changes.

Without approval proposals for transfer by a full-time employee may be transferred to work in another region if the following circumstances occur:

• accidents (disasters) of man-made or natural origin - earthquake, fire, flood, epizootic, large-scale epidemic, etc. Staying in such conditions becomes a threat to the health and life of the population;
• temporary downtime of the enterprise associated with economic or technical reasons;
• when necessary to avoid damage to property caused by emergency circumstances;
• when temporarily replacing an absent employee, whose non-appearance is also explained by the occurrence of a similar situation.

This transfer at the initiative of the employer without the consent of the employee is permitted for one month (parts 2 and 3 of article 72.2 of the Labor Code of the Russian Federation).

Where can they transfer?

Many questions arise regarding the interpretation of the concept of “other locality.” An explanation of the meaning of this category is given in the Resolution of the Plenum of the Supreme Court of the country No. 2, dated March 17, 2004, which directly states that such a place is an area outside the boundaries of a specific locality: new city, urban settlement or other administrative-territorial unit.The “other locality” could even be a second city in the same administrative region.

Moving to another administrative district of one urban settlement is not recognized as a territory to which it is fair to apply the movement of an organization as a transfer to another area.

Procedure

1. Warning employees about upcoming changes in a written form. The legislator has not established the notice period; the employer has the right to make a decision independently. Recommended time to notify employees: two months before transfer(requirement of Article 74 of the Labor Code of the Russian Federation).
2. Receipt from the employee written consent, or refusal to move. In the second case, they have the right to dismiss him, based on the action of Art. 77 Labor Code of the Russian Federation (part 1, clause 9). But if an employee refuses to be transferred to a branch located in another locality, but the employer’s company does not move there, there are no grounds for severing the employment relationship. It is recommended that the employee’s written consent to the transfer be issued in the form of an application.
3. A prerequisite for compliance with the law in this case is the registration additional agreements to the main employment contract.
   The document is created in writing and signed by the head of the company and the employee who agreed to the transfer. It indicates the date of transfer and the possibility of compensation for moving expenses.
4. An additional agreement drawn up in accordance with legislative standards is a valid basis for issuing order for an enterprise or institution regarding translation. The document is drawn up in form T-5 (for a single employee) or T-5a (when transferring a larger number of employees).

Considering that the described translation option is permanent, a record of a personnel action is made in the work book, as well as in a personal card (form T-2) full-time employee. The formulation is stated as follows: “Transferred (transferred) to another locality together with the employer on the basis of clause 1 of Art. 72 Labor Code of the Russian Federation".

Differences from movement and other concepts

The procedure for transferring together with the employer to another place differs from other types of transfer and relocation:

• from periodic movements persons working on a rotational basis. A change of place of work in this case will not be a transfer since, when drawing up an employment contract, such working conditions were agreed upon by the employer with the hired employee;

• from the transfer of an employee employed in one structural unit of an enterprise or company to another, located in a completely different place. At the same time, the legal address of the company remains unchanged and the company itself does not move anywhere. In addition, separate branches are not a legal entity and cannot be an employer. Requirements of Art. 72 of the Labor Code of the Russian Federation does not apply to this translation;

• from personnel rotation, which occurs through the movement of specialists or managers, taking into account the professional and educational level they have achieved and their increased length of service. Transfer to other positions occurs within the same company;

• from moving, for which the employee’s consent and changes to the terms of the employment agreement are not required. The transition occurs to another workplace or to work in another division of one enterprise in the same locality. It is prohibited to move an employee to work in conditions harmful to his health.

• difference from a business trip is that the transfer implies changes in the essential terms of the contract, but for a business trip an order is issued and no changes are made.

These personnel changes take place without changing the terms of the employment agreement.

Moving costs

In addition to complex personnel decisions, transferring together with the employer to another city is associated with organizing the relocation of the workforce along with their families. Often, the employer prefers to hire workers in a new location, but in the event of relocation of personnel who worked at the old location, he is obliged to:

• cover everything costs associated with moving the entire family by water, rail, air or road transport. At the same time, baggage transportation is compensated when using the same means of transport, except for air. Family members include only children (including adopted ones), spouses and parents. The employer may also provide transportation free of charge for this purpose;
• compensate for the costs of settling into a new place of residence.

The employer must make compensation by fulfilling the requirements of Art. 169 Labor Code of the Russian Federation. The amount of compensation is established in an additional agreement, but in some cases the funds received must be returned to the employer. Such circumstances include:

• failure to show up for work at a new place without good reason;
• dismissal on one’s own initiative before the expiration of a one-year work period or before the end of the time stipulated by the terms of the employment agreement;
• admission of guilty actions, on the basis of which the employment relationship with the employee was terminated.

The amount and procedure for reimbursement of relocation costs for employees in state and federal bodies are determined in the legislative norms of the Government and local government institutions. For other workers - in the collective agreement, agreement of the parties.

Peculiarities

When signing a labor agreement with certain categories of workers (construction workers, logging workers, oil workers, etc.), the document includes clauses on the possibility of exercising their functions at other facilities outside the given locality. For such labor migrations, the formalities for processing transfers may not be observed.

An important nuance of correct execution of a transfer to another locality is change of the company's legal address. The innovation must be recorded in the constituent documents.

The changed address of the company is also reflected in the Unified State Register of Legal Entities - the Unified State Register of Legal Entities and will be considered as such only after the moment of registration.

A special feature of registering the transfer of an employee to another locality is that the additional agreement also reflects not only the new location of the company, but also other changes in the conditions of his work.

A mistake in registering a personnel reshuffle is the actions of HR officers when they first fire an employee, and the next day they hire him to another department in the same company. This option distorts the amount of average earnings, which may be a reason for the employee to go to court.

The reason for filing a claim may also be the dismissal of pregnant women due to their refusal to transfer to work in a new area. Provisions of Art. 77 (clause 9, part 1) of the Labor Code of the Russian Federation allows for the interruption of labor relations, and based on the legality of the action, the court will not reinstate the employee, and the place of work has been moved to another region.

In contact with

Many employers and their subordinates are faced with the phenomenon of transfer to another place of work. This raises various legal issues, in particular regarding the difference between transfer and relocation. In addition, there are two types of transfer to another job - temporary and permanent, which differ from each other.

The concept of transfer to another job

According to the definition in the Labor Code, a transfer from one job to another is a change in the labor functions of an employee. At the same time, the employee continues to perform work for the same employer, and in some cases may be transferred to another location. Such changes can affect not only individual employees, but also an entire structural unit.

What happens to the employment contract upon transfer?

Unlike relocation, a transfer can only be made with the written consent of the employee. In addition, the transfer can be made to another employer and not only with the consent of the employee, but also at his request. In this case, the employment relationship with the previous boss is terminated, and an agreement is concluded with the new one.

The most difficult procedure provided for by law during transfer is changing the employment contract. However, the employer must have compelling reasons to make such a decision. Only in extreme cases can a transfer be associated with a change in conditions, both technological and organizational.

Notification of an employee's transfer to another job is provided in writing two months in advance. If the employee refuses the proposed conditions, the employer is obliged to make him a new offer in writing. This can be any job related to the profile of this employee, including lower paid ones.

Features of temporary transfer

Temporary transfer is carried out for a period of up to one year. If the need is related to the temporary replacement of an employee, then the transfer continues until the absent employee leaves. If the period for such a transfer has expired and the employee has not been provided with his main position, this employee is assigned to this workplace.

Transferring an employee without his consent is prohibited if a new workplace is contraindicated for him due to a medical report. In this case, the employer is obliged to provide activities that correspond to the employee’s health condition. If an employee is transferred to another job at the initiative of the employer for a short period of time (up to four months), and the employee refuses this transfer, he is suspended from work and not paid. If the period exceeds four months, then in case of refusal, the employment relationship with the employee is terminated.

A temporary transfer may be made due to various force majeure circumstances, such as:

• man-made/natural disasters)
• fire)
• industrial accident)
• accident)
• flood)
• epidemic.

In such cases, a transfer to another job is often carried out at the initiative of the employer. The period of such transfer can be no more than one month. In addition to the above reasons, there may be other factors under which a transfer is permitted without the written consent of the employee. This is a suspension of production related to a technological, organizational or economic situation. However, even in this case, if an employee is transferred to a job with lower qualifications than the current one, his written consent is required.

Transfer for health reasons

This possibility is considered depending on the specific situation. In accordance with Russian legislation, the employer is obliged to provide the employee with a new place that corresponds to his state of health if the employee submits a medical report. In case of refusal of such activities, he will be temporarily suspended from work with his main job retained. Payment of compensation during his absence from work is not provided, except in certain cases provided for in private contracts or agreements.

Pregnant women are transferred to another place of work, where adverse factors that may affect them will be excluded. The average income remains the same. In addition, a pregnant employee of an enterprise may remain in the same place, but with significantly reduced production standards. Also, until she is provided with a new job without negative effects on the body, she may be released from work, and the average salary will be paid for all days missed.

Differences between transfer to another job and business trip

The concept and types of transfer to another job do not include a business trip. A business trip is a trip to a place remote from the enterprise for a certain period of time in order to perform a work assignment. In accordance with the legislation of the Russian Federation, business trips are mandatory; refusal to travel, if unfounded, may be regarded as a disciplinary violation.

In addition, one of the main differences between a business trip and a transfer is the distance, since a temporary transfer can only be carried out in a certain area. Also, during a business trip, the employee performs a specific task assigned to him, while the transfer involves the assignment of any duties related to the professional activity of this employee.

Another difference between these concepts is that when transferred to another job, the employee is subject to local regulations. A business trip does not provide for their action in relation to a given employee when performing an official assignment, except in cases where this is provided for in the employment contract.

Features of transfer to another area

If an employee is transferred to another location, he must be compensated for expenses, namely:

• employee travel costs,
• payment for his family's travel,
• full cost of baggage transportation.

The employer must also bear all costs associated with settling the employee in a new place. More specifically, this issue is considered in each individual case when drawing up an agreement between the employee and the employer.

If an employee refuses to be transferred to another location, the employer has the right to terminate the employment relationship with him. However, a situation may arise in which an employee is transferred to a branch located in another area, but the employer does not move to this area. In this case, the employee’s refusal to transfer is not grounds for his dismissal.

When a company is reorganized and employees are transferred, as well as when staff is reduced, a particular employee does not have any advantages of remaining at the enterprise. The manager independently decides which employees to give preference to, with priority given to those with a higher level of qualifications and productivity.

With equal productivity, upon transfer, the employer retains the employee who has two or more disabled family members. Preference is also given to employees who do not have people in their families who are able to earn money on their own. The collective agreement of each enterprise considers its own conditions for retaining workers during relocation and reduction of staff.

Translation by agreement of the parties

The employer may carry out a temporary transfer to another job by agreement of the parties if both parties have reached agreement on this issue. Both the employer and the employee can propose a transfer. However, labor legislation does not provide for the need for an employee to submit a written request for a temporary transfer. Although in practice such documents are drawn up as the basis for a written agreement between the parties.

If such an application is made, it must be drawn up in the form accepted within the enterprise. The document is recorded in the journal of applications submitted by employees and sent to management for decision-making. In addition to the head of the enterprise, only persons authorized by management can make decisions on the transfer of employees.

After the decision on the transfer is made, the head of the enterprise or an authorized person draws up a resolution on the submitted application. If the decision is positive, then at the next stage an agreement is drawn up in addition to the main employment contract, which discusses the conditions of the temporary transfer.

Also, the concept of transfer to another job includes the employer’s offer. The manager must issue an offer to the employee, which specifies the terms of the transfer, such as:

• term)
• list of labor functions)
• salary size.

After receiving such an offer, the employee personally puts a mark that he agrees to the transfer. Basically, this procedure is similar to the procedure for hiring a new job. The transfer process includes various organizational issues, including a medical examination.

Medical examination upon transfer

Temporary transfer of an employee to another job at the initiative of the employer or at the request of the employee includes a mandatory medical examination. The first step is to formalize the employee's referral. It must indicate the reasons for this referral, the period of transfer, as well as a list of hazardous substances with which the transferred employee will work.

The legislation of the Russian Federation does not establish a specific form of referral for a medical examination. It is usually drawn up on the company's letterhead. The document is signed by the director of the organization or any authorized person, for example, a personnel officer.

The medical examination is carried out, as a rule, in a medical organization with which the employer has entered into an agreement. The examination must be carried out within a month from the moment the employee applies or is notified of the transfer. After a medical examination, the employee is given a conclusion according to which he is allowed/prohibited from working in certain conditions that are potentially hazardous to health. The conclusion must contain the signature of the attending physician, as well as the seal of the medical institution where the examination was carried out.

In the event that an employee is not recognized as fit for a given job and activities with certain substances are contraindicated for him, a copy of the conclusion is sent to the employer within three days. The examinee is given the original document. Further processing is terminated and the employee returns to his original duties.

Familiarization with the documentation

The Labor Code provides for a familiarization period for the employee with the documentation before signing it. A temporary transfer to another job at the initiative of the employer is carried out against a signature after the transferred employee has familiarized himself with documents such as a collective agreement and local regulations:

• internal labor regulations)
• safety regulations)
• job description.

This procedure is provided only if the labor functions of this employee will differ significantly from the previous ones. Also, his work activity may be associated with other conditions specified in these documents.

This procedure is similar to that carried out during recruitment. At the same time, neither the form nor the procedure for familiarization are provided for by Russian legislation. After this procedure, the employee must check that he has read the list of acts and other documents. For this purpose, the enterprise keeps a separate familiarization log.

Additional agreement

When transferring an employee, an additional agreement to the main employment contract is drawn up. There is no specific unified form of this document. Therefore, each enterprise has its own form, according to which the agreement is drawn up in two copies.

The additional agreement should indicate the following details:

• type of this document)
• place of its composition)
• details of both parties (company name, address, phone number, employee passport details).

The document itself indicates the employee’s position, working conditions, including the amount of salary, and the period of transfer, if it is temporary. An additional agreement is not drawn up if the employee refuses to be transferred to work in another location together with the employer.

One of the types of temporary transfer is a transfer due to the absence of the replaced employee. The reason for his absence may be temporary disability, vacation, or business trip. In this case, the additional agreement provides for the execution of a temporary transfer for an indefinite period (more than a year). With this design, the document does not indicate the end date of the transfer, but uses the following wording: “until the replacement/absent employee leaves.”

The transfer agreement is signed by both parties. The details indicate the position, surname and initials of the employer, the date of the agreement, as well as the full name of the employee. After registration in the document log, one copy of the agreement is given to the employee, the second remains with the manager. In this case, the employee puts a mark that he has received an additional agreement to the contract.

Transfer order

After an additional agreement is concluded between the parties, the employer issues an order or instruction on the transfer of the subordinate. Such documentation is drawn up according to forms T-5 and T-5a defined by law. The order must contain information such as the name of the previous and new place of work, as well as the amount of the new salary. If the transfer to work in another locality together with the employer is temporary, then the order also indicates the start and end dates of the employee’s work activity.

The temporary transfer order may not have a final date. In this case, it is necessary to indicate the event in connection with which the period of such transfer will end. The order is issued on the basis of an additional agreement concluded between the employee and the director of the enterprise. The document is signed by the manager or any authorized person.

After drawing up and registering the order, the employee must familiarize himself with it in the same manner as with the additional agreement - against signature. All orders related to transfers to another job are stored separately from orders related to the main work activities of employees. It should be remembered that information about temporary transfer is not entered into the work book.

Briefing

Russian labor legislation provides for such a procedure as instructing transferred workers to a new place. It is carried out by the employer or an authorized employee. Records about it and the signatures of all employees are contained in a separate registration journal. Records must contain the date of the briefing, as well as a transcript of the workers’ signatures.

The new place where the employee is transferred may have special working and safety conditions. In this case, the employee must undergo additional training - this must occur within a month from the date of his transfer. After the training, a commission is assembled to test the employee’s theoretical and practical knowledge. The results of the examination are recorded in the protocol. If the employee successfully passes the test, he is given a document giving him the right to work independently in specific conditions.

Information about the transfer in the work book

If a permanent transfer to a lower-paid job is carried out at the initiative of the employer, information about this is entered into the work book. Regulatory acts do not determine the procedure for entering this data if the temporary transfer has expired and it has been re-registered as permanent.

It is recommended to record information in this situation as follows. After entering the next serial number and the date of entering the data (in no case the date of the transfer, since at that moment it was temporary), information about the transfer itself is recorded in the “Work Information” column. After this, indicate the document on the basis of which the translation was made.

As in other cases, the employee must familiarize himself with this entry and sign it. It must be placed on your personal card.

Employee’s personal card and recording information in the timesheet

When starting a job, a personal card is created for each employee in the personnel department. The legislation establishes a single form of this document - T-2. This document contains all the information about the employee, including his transfer.

Information about the transfer is entered in the third column, after which it is necessary to familiarize the employee with this entry. All entries, as in the work book, are made on the basis of documents such as instructions or orders.

Also, in the event of a transfer, the employer is required to continue to keep records of the time worked by the transferred employee. For this procedure, a report card of the T-12 or T-13 form is used.

Transformation of translation

The issue of transforming a temporary transfer into a permanent one should be separately considered. There have been many cases recorded where none of the parties that entered into an additional agreement demanded its termination due to the fact that the temporary transfer period had expired. As a result, such an agreement is considered valid for an indefinite period. Also, the employee is assigned to this place if, after the expiration of the period during which he must give notice of dismissal in connection with the completion of the temporary transfer, he does not notify management about this.

Thus, the parties do not have to agree on any changes if both the employee and the employer are satisfied with the current situation. The transfer is considered permanent from the day following the day the temporary transfer expires. As a result of the transformation, the terms of the concluded agreement automatically change.

On the day when the transfer becomes permanent, it is necessary to issue a new order, as well as make a corresponding entry in the employee’s work book. But most often, if such a transformation is prevented, the employer begins in advance to process the return of the employee to his previous place of employment. There are cases when, after the employer refuses to register a given employee as transferred on a permanent basis, this employee turns to certain authorities with a request to resolve this issue.

Gaps in labor legislation

When processing a translation, problems may arise due to imperfections in the current legislation. For example, the law does not provide for the possibility of early termination of an employment relationship formalized as a transfer.

1. Thus, an employee who is asked by the employer to return to his previous place may refuse. At the same time, the manager cannot change the employment contract and additional agreement for the purpose of return. This may be due not only to the inadmissibility of unlawful changes in conditions without the knowledge of the employee, but also for reasons related to organizational and technological conditions.
2. The question of the possibility of concluding an employment contract with a new employee who will take the place of the transferred one also remains open. Since the transferred employee retains his or her job, the possibility of hiring a new employee, even for a limited period of time, can cause problems.
3. Often a problem arises with the most difficult issue - the level of salary of the transferred employee. Although the employee replaces another employee, the contract may not provide for any additional payments, although from the point of view of Rostrud this is unacceptable. The transferred employee must perform only his or her job duties, and unless he receives an increased salary, he is not required to perform additional work for the absent employee.
4. If the transferred employee agreed for some reason to transfer to a lower-paid job, the manager does not have the right to violate the principle of remuneration existing at the enterprise. He is obliged to make payments according to the system in force in the company.