Business trip or transfer. Temporary transfer to another job and its registration according to the Labor Code of the Russian Federation

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 relations between the parties to the employment contract during the transfer did not change 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

The Russian legislator, taking into account the needs of the employer for the prompt and effective management of the organization, the production process, and the effective use of employee labor, is constantly improving labor legislation.

Federal Law of June 30, 2006 No. 90 FZ Ch. 12 “Change of the employment contract” of the Labor Code of the Russian Federation is supplemented by Article 72 2 “Temporary transfer to another job”. However, this article does not provide the concept of temporary transfer. It can be deduced from the content of Art. 72 1 “Transfer to another job. Moving."

Note! Another locality is usually understood as an area outside the administrative-territorial boundaries of the corresponding locality (clause 16 of the Resolution of March 17, 2004 No. 2)

A temporary transfer from the same employer is: 1) a temporary change in the employee’s labor function, which is defined as work in a specific position, profession, specialty, indicating qualifications or a specific type of assigned work. Incorporation of the worker’s profession and his qualifications in the employment contract indicates that the assignment of work in the same profession, but with a different qualification, will also constitute a change in the labor function; 2) a temporary change in the structural unit in which the employee works, if the structural unit was indicated in the employment contract ;3) a temporary change in both the employee’s labor function and the structural unit where the employee works, if the structural unit was specified in the employment contract.

Unlike a temporary transfer, a business trip in accordance with Art. 166 of the Labor Code of the Russian Federation refers to the travel of an employee by order of the employer for a certain period of time to carry out an official assignment outside the place of permanent work, i.e., work in this case can take place both in the same area where the employer is located, and in another area.

Reasons for transfer and business trip

The reasons for the need for business trips and temporary transfers are different.

The official task performed by the employee during the business trip is determined by the need to ensure the functioning of the employer, which corresponds to the subject and goals of its activities. For example, it is necessary to conclude a commercial contract, get acquainted with the organization’s work experience, etc. The work performed during the business trip must correspond to the employee’s job function as defined by the employment contract. Sending an employee on a business trip is always carried out at the initiative of the employer.

Meanwhile, the grounds determining the need for temporary transfer are more comprehensive. As a rule, during a temporary transfer, the employee’s job function changes (except for those cases when the transfer is associated with a change in the structural unit, if it was specified in the employment contract).

While sending an employee on a business trip is carried out at the initiative of the employer, a temporary transfer to another job is possible:

• at the initiative of the employer; Moreover, in some cases the employer has the right to offer the employee a transfer to another job, in others he is obliged to do this;
• at the initiative of the employee, when, at the request of the employee, the employer is obliged to transfer him to another job available to him (in particular, if there is a medical certificate indicating the need for transfer to another job);
• by agreement of the parties.

Let's consider an example when the transfer should be carried out at the initiative of the employee.

I. worked at OJSC Mondi Business Paper of the Syktyvkar Forestry Complex as an electric and gas welder. While performing his job duties, he received an industrial injury.

During the examination, the medical and social expert commission established I. as a 3rd disability group with loss of professional ability to work 50% for a year. According to the medical report, heavy physical labor and work near moving mechanisms are contraindicated for him; work as a toolmaker is recommended. However, the employer did not have such an opportunity, since there is no tool maker on the organization’s staff list. The employee was dismissed under clause 8, part 1, art. 77 of the Labor Code of the Russian Federation, since he needed a temporary transfer for a period of more than four months, and the employer did not have work that corresponded to a medical report.

By the decision of the Ezhvinsky District Court of Syktyvkar, I.’s claim for reinstatement at work was denied.

It should be noted that on the basis of Art. 73 of the Labor Code of the Russian Federation, the transfer of an employee with his consent to another job in accordance with a medical report is the responsibility of the employer. The absence of a toolmaker’s profession in the organization’s staffing table did not relieve the employer of the obligation to offer other jobs and positions that the employee can and agrees to perform for health reasons, taking into account the medical report.

The Judicial Collegium for Civil Cases overturned the decision of the district court.

As a general rule, an employee cannot refuse to go on a business trip (with the exception of certain categories), since the necessity of the trip, its purpose and the content of the task are determined by the employer himself.

As for temporary transfer to another job, as a general rule it is carried out by agreement of the parties. At the same time, the legislator in parts 2 and 3 of Art. 72 2 of the Labor Code of the Russian Federation establishes cases when a temporary transfer at the initiative of the employer is mandatory for the employee (in the presence of emergency circumstances). According to paragraph 17 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation,” when an employee is temporarily transferred to another job without his consent, the obligation to prove the existence of circumstances with which the law connects the possibility of such a transfer is assigned to the employer.

The order of the plant director ordered the transfer of accountant N. to the workshop for processing raw materials as a packer from October 12 for a period of 7 working days. The order for the temporary transfer indicated that the transfer was caused by the need to eliminate downtime in the work of the raw material processing workshop that arose for technological reasons.

Disagreeing with the order, N. refused the transfer and continued to perform her duties as an accountant. Since the manager’s order was not carried out, the employer regarded her refusal to transfer as a disciplinary violation and, by order, imposed a disciplinary sanction on her in the form of a reprimand.

N. filed a claim with the district court to declare the disciplinary sanction unlawful. By decision of the district court, the order issued by the employer to transfer N. to the raw material processing workshop was found to not meet the requirements of labor legislation. A temporary suspension of work in the raw material processing workshop actually took place, but the order did not name the emergency circumstances that led to the downtime. In addition, part 3 of Art. 72 2 of the Labor Code of the Russian Federation requires obtaining the employee’s consent when transferring to a job with a lower qualification. The employer transferred N. without taking into account her position, without receiving consent to the transfer.

The employee's claim was satisfied.

Duration of transfer depending on the basis

Thus, the employee has the right to refuse a temporary transfer when the employer does not have legal grounds for the transfer or the requirement to comply with the transfer procedure has not been met (for example, the employee’s consent has not been obtained, the transfer is carried out for a period of more than one month).

Time limit

When issuing an order on a business trip or temporary transfer, the employer indicates the specific period for which the employee is sent or transferred. But if during a business trip the duration is determined by the employer based on the official task to be completed, then with a temporary transfer there is a limitation on its duration at the legislator level (see table).

In some cases, such a limitation is provided for by the Labor Code of the Russian Federation, in others, the transfer period is determined by a medical report.

Restriction on the number of persons

Both when an employee is temporarily transferred to another job or when sent on a business trip, there is a restriction on the circle of persons in respect of whom the transfer or sending on a business trip is carried out.

An employer does not have the right to transfer an employee to a job that is contraindicated for him due to health reasons. When sent on a business trip, there is no such restriction, since, as a general rule, during the business trip the employee continues to perform the labor function provided for in the employment contract.

At the same time, minor workers and pregnant women cannot be sent on business trips, even with their consent. It does not matter whether the employer to whom the employee is sent is located in a different area or in the same location as the employer who sent him on a business trip.

Sending women with children under three years of age on business trips requires compliance with a certain procedure: informing the employee in writing of her right to refuse to be sent on a business trip; obtaining written consent and a medical certificate confirming the absence of a travel ban. This guarantee is also provided to mothers and fathers raising children under the age of five without a spouse; employees with disabled children; workers caring for sick family members in accordance with a medical report; fathers raising children without a mother; guardians and trustees of minors (Articles 259 and 264 of the Labor Code of the Russian Federation).

Expert opinion

E. V. Orlova, Deputy General Director of JSC "ASM Audit" Business travel dates: restrictions lifted Almost all organizations in the course of their activities are faced with the need to send their employees on business trips. According to part 2 of Art. 166 of the Labor Code of the Russian Federation, the specifics of sending employees on business trips are determined in the manner approved by the Government of the Russian Federation. Since until recently such a procedure was not established, organizations had to use the Instruction of the Ministry of Finance of the USSR, the State Committee for Labor of the USSR and the All-Union Central Council of Trade Unions dated 04/07/88 No. 62 “On official business trips within the USSR” (hereinafter referred to as the Instructions) to the extent that does not contradict the Labor Code of the Russian Federation. In particular, paragraph 4 of the Instruction contained strict restrictions on the duration of a business trip: its maximum duration within Russia could not exceed 40 days (not counting travel time). In turn, the period of business trips for workers, managers and specialists sent to perform installation, commissioning and construction work throughout the country could not exceed one year. At the same time, maximum terms for business trips abroad were not legally defined. For business trips abroad, only daily allowance rates were approved, which can be included in expenses when taxing profits. And these standards are differentiated by the duration of stay on a business trip: up to 60 days and over 60 days (Resolution of the Government of the Russian Federation dated 02/08/02 No. 93). The Russian Ministry of Finance believed that the maximum period for which an employee can be sent on a business trip abroad is the same as for business trips within Russia. That is, 40 days, and when performing installation, commissioning and construction work - no more than a year (letters of the Ministry of Finance of Russia dated September 28, 2007 No. 03 04 06–01/335, dated October 28, 2005 No. 03 05 01– 4/345). The previously established limitation on the duration of business trips directly affected the amount of travel expenses that the organization had the right to take into account for the purposes of calculating income tax. So, for example, if the employee performed the labor duties stipulated by the employment contract outside the place of permanent work for a period exceeding the maximum travel time established by the Instructions, the corresponding expenses could not be qualified as business trip expenses for tax purposes (letter from the Ministry of Finance of Russia dated March 28, 2008 No. 03 03 06/2/30).

In this case, payments to the posted worker could be included by the tax authority in the tax base for personal income tax, unified social tax, pension contributions and contributions for insurance against accidents and occupational diseases (clause 1 of article 210 of the Tax Code of the Russian Federation, clause 1 of art. 237 of the Tax Code of the Russian Federation, clause 2 of article 10 of the Federal Law of December 15, 2001 No. 167 Federal Law “On compulsory pension insurance in the Russian Federation”, clause 3 of the Rules for the accrual and expenditure of funds for the implementation of compulsory social insurance against industrial and professional accidents diseases, approved by Decree of the Government of the Russian Federation dated March 2, 2000 No. 184). Moreover, according to the opinion of the Ministry of Finance of Russia, set out in letters dated 09/28/07 No. 03 04 06–01/335 and dated 01/12/07 No. 03 04 06–01/1, the establishment of a limit on the duration of a business trip is due to the fact that the employee is on a business trip for a period exceeding the established one, leads to the inability to perform labor duties at the place of work specified in the employment contract, since the employee actually performs his labor duties at the place of business trip. For example, in the case of sending an employee to work abroad for a long period of time, when the employee performs all his work duties stipulated by the employment contract at his place of work in a foreign country, the employee’s actual place of work will be in a foreign country, and such an employee cannot be considered on a business trip. And the remuneration received by the employee in this case is remuneration for performing labor duties on the territory of a foreign state, which does not relate to income from sources in the Russian Federation. Now, when sending employees on business trips, you should be guided by the Regulations on the specifics of sending employees on business trips, approved. by Decree of the Government of the Russian Federation dated October 13, 2008 No. 749 (came into force on October 25, 2008). According to paragraph 4 of this document, the duration of a business trip is no longer limited. The duration of a business trip both in Russia and on the territory of foreign countries is determined by the employer, taking into account the volume, complexity and other features of the official assignment. In accordance with Art. 8 and 9 of the Labor Code of the Russian Federation, the maximum duration of business trips, including abroad, can be established by an employment contract, agreement, collective agreement, local acts of the organization (order, decree). Thus, starting from October 25, 2008, the minimum and maximum terms of a business trip both on the territory of Russia and on the territory of foreign states are determined by order of the head of the organization or a local document, for example, the Regulations on business trips, approved by the head of the organization, a collective agreement, an employment contract .

When setting the maximum travel period in the relevant local document, we recommend that the employer take into account the following factors. Firstly, the economic and organizational justification of the duration of business trips. This is due, first of all, to the fact that for profit tax purposes, an organization will be able to take into account business travel expenses, subject to the requirements of paragraph 1 of Art. 252 of the Tax Code of the Russian Federation (economic feasibility and documentary evidence of such expenses, their focus on generating income). Secondly, it is necessary to take into account the restrictions on the duration of work of a foreign citizen outside the boundaries of the constituent entity of the Russian Federation, on the territory of which he was issued a work permit, a temporary residence permit, established by subparagraph. "a" clause 1 and sub. “a” clause 2 of the Decree of the Government of the Russian Federation dated February 17, 2007 No. 97 “On establishing cases of labor activity by a foreign citizen or stateless person temporarily staying (residing) in the Russian Federation, ext. Accordingly, if a foreigner temporarily staying in Russia is sent on a business trip, the duration of the business trip should not exceed 10 calendar days during the period of validity of the work permit. If a foreigner temporarily residing in Russia is sent on a business trip, the duration of the business trip should not exceed 40 calendar days within 12 calendar months. Thirdly, when traveling abroad, one should keep in mind the tax consequences for the posted worker and the potential possibility of losing the status of a tax resident of the Russian Federation (in terms of applying a rate of 30% instead of 13% in relation to all income received by an individual) in relation to foreign business trips whose duration exceeds 183 days for the next 12 consecutive months. This is due to the fact that, according to paragraph 2 of Art. 207 of the Tax Code of the Russian Federation, individuals are recognized as tax residents of the Russian Federation only if they are actually on the territory of the Russian Federation for at least 183 calendar days over the next 12 consecutive months. In this case, the citizenship of an individual does not matter. Consequently, individuals sent on a foreign business trip for a period of less than 183 days within 12 consecutive months are recognized as tax residents of the Russian Federation. Let us recall that a tax resident of the Russian Federation is subject to all the obligations of taxpayers (clause 2 of Article 11 of the Tax Code of the Russian Federation and Article 207 of the Tax Code of the Russian Federation), but he also acquires all the rights of taxpayers - individuals, incl. the right to standard deductions (Article 218 of the Tax Code of the Russian Federation).

Salary

While on a business trip, the employee is guaranteed to maintain his average earnings.

In case of temporary transfer to another job, preservation of average earnings is provided to pregnant women.

In case of temporary transfer due to exceptional circumstances threatening the life or normal living conditions of the entire population or part of it (parts 2 and 3 of Article 72 2 of the Labor Code of the Russian Federation), remuneration is made according to the work performed, but not lower than the average earnings for the previous work.

The issue of remuneration is similarly regulated when transferring a woman who has children under the age of one and a half years, in case of impossibility of performing her previous job, as well as when transferring an employee during a break in work due to the suspension or temporary ban of activities due to violation of state regulatory labor protection requirements not through the employee's fault.

Article 220 of the Labor Code of the Russian Federation establishes guarantees of the right of workers to work in conditions that meet labor protection requirements, defining the employer’s obligation to provide the employee with another job while the danger to his life and health that arose during his work is eliminated. However, this article does not contain provisions on wage guarantees provided to the employee upon transfer to another job. The legislator has established a guarantee for such employees in the event that providing another job for objective reasons is impossible. Downtime that occurred in this case due to the fault of the employer is paid in accordance with Part 1 of Art. 157 of the Labor Code of the Russian Federation in the amount of at least two-thirds of the employee’s average salary.

Article 72 1 of the Labor Code of the Russian Federation allows the transfer of an employee with his written consent or at his written request to a permanent job with another employer (in this case, the employment contract at the previous place of work is terminated). As a general rule, the possibility of temporarily transferring an employee to another employer is excluded. A temporary transfer of an employee involves continued work with the same employer.

ON No. 12‘2008

The Decree of the Government of the Russian Federation dated October 13, 2008 approved the Regulations on the specifics of sending employees on business trips. For explanations of changes in personnel work in connection with the adoption of this document and an analysis of the changes that have occurred, read the next issue.

What is the difference between translation and displacement?

The movement of employees and their transfer are in any case certain personnel changes. What is the difference between translation and displacement? How not to confuse one type of change with another? Let's try to figure it out.

Transfer to another job

A transfer is considered to be such changes in working conditions that change:

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

When moving to another area in connection with a transfer, the employee must be paid the required compensation: the cost of baggage transportation, travel expenses for the employee and his family members, accommodation costs, etc.

The translation could be:

• temporary or permanent;
• at the initiative of the employee or employer;
• for medical reasons.

The difference between translation and displacement

Movement is a change in which don't change terms of the employment contract, but:

• the workplace changes;
• the structural unit changes (if the new unit is located in the same area);
• work on a different unit or mechanism is entrusted (in this case, the work performed itself should not change, that is, work on a new unit and mechanism cannot be different from what is specified in the employment contract).

Relocation, like transfer, can be temporary or permanent.

The main condition for relocation, in which the employee’s consent is not required, is the absence of changes to the employment contract. For example, if the employment contract specified a specific workplace, then the employer has no right to force the employee to work in a new workplace without his consent. This also applies to moving to another structural unit. If it was originally specified in the employment contract, then changing it will already be considered a transfer and will require the employee’s consent.

If the employment contract stipulates work on a specific unit or mechanism as a condition, then changing this condition will also require the consent of the employee.

As you can see, the differences between transfer to another job and relocation are significant. But there are similarities between them. So, in both cases something changes for the employee. In addition, the legislation prohibits any movement or transfer of an employee if this could adversely affect his health or is contraindicated for medical reasons. For example, a pregnant employee should not be moved to a new workplace if such a location could in any way harm the normal development of the pregnancy.

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

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

It is necessary to distinguish from transfer to another job moving employee from the same employer to another workplace, to another structural unit in the same area, assignment of work on another mechanism or unit. The transfer does not require the employee's consent. It will take place if the parties, when concluding an employment contract, did not specifically stipulate a workplace (mechanism, unit), or structural unit as conditions of the employment contract.

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

At temporary transfer for other work, the parties to the corresponding transaction give rise to two interrelated consequences: the original (main) obligation is suspended for a certain period with the emergence of a new (temporary) obligation. Upon expiration of the appropriate period, the temporary obligation is terminated, and the parties resume the exercise of rights and obligations under the original legal relationship. This type of transfer can be carried out by agreement of the parties, at the initiative of the employer, and in some cases at the initiative of the employee.

by written agreement parties are allowed for a period of up to one year. If the parties agreed on a transfer in order to replace a temporarily absent employee, whose job remains in accordance with the law (for example, in connection with parental leave), the duration of the transfer will be determined upon the fact that the replaced employee returns to work. If, after the expiration of the temporary transfer, the employee continues to work, the transfer is considered permanent. With such a temporary transfer, the right of the absent employee to resume the work previously performed must be respected.

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

Another group of bases is associated with business needs of the employer(in cases of downtime, the need to prevent destruction or damage to the employer’s property, replacing a temporarily absent employee). The procedure for carrying out such a temporary transfer depends on the reason that gave rise to the production necessity. So, if it is caused by the previously mentioned extraordinary circumstances (for example, downtime due to flooding of production premises due to flooding), then a temporary transfer is allowed without the employee's consent for up to one month. However, if the temporary work requires lower qualifications, the employer is obliged to obtain the employee’s written consent to such a transfer. If production necessity is caused by other reasons, temporary transfer is permitted in the general manner by agreement of the parties.

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

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

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

In the absence of such work or the employee’s refusal to transfer, the employment relationship is terminated.

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

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 for 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.