Additional agreement on early termination of the transfer. Temporary transfer by agreement to replace a temporarily absent employee. Athlete's temporary transfer

Hello! Situation: Employee A is on leave without retention wages until 20.12.2013 During his absence, employee B was transferred. For the period of absence of employee B, employee C was hired under a fixed-term employment contract. Employee A quits on the last day of leave without pay (without going to work). The employer does not want employee B's temporary transfer to become permanent, because he wants to transfer another employee to this position. Question: By what number and how can the temporary transfer of employee B be canceled and transferred to his former permanent place. Thanks!!!

Answer

By written agreement of the parties, the employee can be temporarily transferred to any other job. In cases where an employee replaces another, temporarily absent employee, the transfer lasts until the other employee starts working again.

If the deadline for the transfer of employee "B" is determined - until 12/20/2013 or "for the vacation period of employee A", then employee "B" should provide his main workplace at the end of the term of the temporary transfer, determined by the order, that is, from the next calendar day - 12/21/2013 (the next day after the end of the transfer period: either the onset of December 20 or the end of the vacation). For this purpose, the employer is advised to issue an appropriate order on the end of the temporary transfer. In this case, in fact, the employee will start working at the main workplace and get acquainted with the order after the end of the temporary absence.

In the event that these documents indicate that employee B is transferred for the period before employee A starts working (and not for the vacation period of the latter or for a period until 12/21/2013, which was discussed above), then it turns out that employee A is will not go to work (having quit on the last day of his vacation) and there will be no reason to end the temporary transfer of employee B, unless, of course, he himself demands it. In this case, it is possible that the temporary transfer will be deemed permanent. In the latter case, it is advisable to conclude an add. agreement on providing him with work in the original position, which will exclude any risks. And on the basis of add. agreements to issue an order to provide the employee with work at the end of the temporary transfer and make a reference to this agreement.

As for Officer C, his term employment contract limited by the temporary absence of employee B at the workplace, and while employee B is absent, it is possible to continue labor relations with employee C until employee B leaves work. And only after employee B leaves, it will be possible to fire employee C and transfer another employee to this job.

Details in the materials of the System:

Answer: How to arrange a temporary transfer of an employee to another job

Types of temporary transfers

Temporary transfer is. Among temporary transfers, one can conditionally distinguish:

In addition, () has its own characteristics.

Temporary translation by written agreement

Temporary transfer without the consent (with the consent) of the employee

Without the consent of the employee, he can be transferred to work of any qualification in cases where such a transfer is carried out in order to prevent or eliminate the consequences:

natural or man-made disasters;

industrial accident;

fire, flood, earthquake;

hunger, epidemics, epizootics;

other exceptional cases endangering the life or normal living conditions of the entire population or its part.

In addition, temporary transfer of an employee without his consent is also allowed in the following cases:

the need to prevent destruction or damage to property;

the need to replace a temporarily absent employee.

In this case, two additional conditions must be met:

The duration of the transfer, which is carried out without the consent of the employee, cannot exceed one month. Moreover, the number of such transfers and their frequency is not limited by legislation.

The employee's work during the period of temporary transfer (both with and without consent) must be paid after the fact, but not lower than the average earnings for the previous job.

Documentary evidence of the validity of the translation

In the event of a dispute about the legality of a transfer without the consent of the employee, the employer needs to prepare documents that will confirm the availability of such transfers (). As supporting documents can be used, for example, certificates of emergency services employees, acts of emergency, order of the head of the organization on measures to eliminate the consequences of the accident, etc.

Temporary transfer order

Any temporary transfer (by agreement of the parties, without the consent or with the consent of the employee), issue the order of the head according to the unified (), approved, or according to.

Temporary Transfer Record

Do not make a record of a temporary transfer in the work book, but it can be entered into the employee (the Rules, approved, instructions, approved). If temporary work is of a special nature and is important to confirm the employee's preferential length of service (for example, temporary work as a doctor), then such work experience can be confirmed by a certificate from the employer about the performance of the relevant work, additional agreement to an employment contract for temporary transfer, etc.

Temporary transfer of a professional athlete

Temporary transfer of a professional athlete to another employer is possible provided that the following conditions are met:
- the transfer is due to the inability to provide the athlete with participation in sports competitions;

the transfer is carried out by agreement of the parties and with the written consent of the athlete;

the transfer period does not exceed one year.

At the time of transfer with the athlete. In this case, the employment contract at the original place of work is considered suspended until the expiration of the fixed-term employment contract (i.e., the exercise of the rights and obligations under the originally concluded contract is suspended). The original employment contract is renewed upon expiry of the temporary transfer. During the temporary transfer period, the duration of the originally concluded employment contract is not interrupted.

A temporary employer cannot transfer an athlete to another employer. If a fixed-term employment contract concluded for the period of a temporary transfer of an athlete is terminated early, the originally concluded contract is valid in full from the next working day after the termination of the fixed-term employment contract.

If, at the end of the term of the fixed-term employment contract, the athlete continues to work at the place of temporary transfer, the original contract is terminated. This rule applies only if there are no requirements for termination of a fixed-term employment contract by the athlete, the employer at the place of temporary work and the previous employer. In this case, the employment contract concluded for the period of temporary transfer is extended for a period determined by the agreement of the parties (in the absence of such an agreement - by indefinite term).

This procedure for the temporary transfer of a professional athlete is established in the Labor Code of the Russian Federation.

Termination of temporary transfer

After the end of the transfer period, it is advisable to issue an order to provide the employee with the previous place of work, since if, at the end of the transfer period, the employee is not provided with the previous job, but he did not demand it and continues to work, the agreement on the temporary nature of the transfer becomes invalid and the transfer is considered permanent (). Such an order does not have a unified form, so draw it up in.

If the condition of the agreement on the temporary nature of the transfer has lost its force and the translation is considered permanent, then in order to document this situation, it is recommended to draw up a new one between the employee and the employer about the change in the nature of the transfer and publish the corresponding one. Among other things, you will need to make records of the permanent transfer in and the employee (approved).

Ivan Shklovets
Deputy Head Federal Service for labor and employment

Situation: From what date do you need to provide the employee with his main workplace, if the end of the temporary transfer occurred during the employee's illness

Transfer to the main place at the end of the temporary transfer is possible during the period of illness.

The illness of an employee during the period of temporary transfer does not increase the transfer period, including in a situation where the end of the temporary transfer falls directly on the period of illness. Therefore, the employee should be provided with his main workplace at the end of the temporary transfer period, determined, that is, from the next calendar day. For this purpose, the employer is advised to issue a notice on the end of the temporary transfer. In this case, in fact, the employee will start working at the main workplace and get acquainted with the order after the end of the illness. There will be no violations in this order. Such conclusions follow from a set of provisions
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Accordingly, when she goes to work, labor legal relations with a temporary worker are terminated. Similarly, notifications are not sent:

employees with whom the contract was concluded for the duration of the industrial practice;
persons aiming to fulfill public Works from the employment center;
officials holding leading positions based on the results of elections to state and local government bodies.

Important! If an employee employed for a period stipulated by the terms of the employment contract submitted a certificate of registration in connection with pregnancy, on the initiative of the management, even after the end of the contractual relationship, she cannot be dismissed until the registration of prenatal and postnatal paid leave.

How is a temporary transfer terminated?

MinimizeShow On dismissal due to the expiration of a fixed-term employment contract In accordance with part one of Article 79 of the Labor Code, an employee must be notified in writing about the termination of a fixed-term employment contract at least three calendar days before the dismissal. The exception here is the case when the employment contract was concluded for the duration of the duties of the absent employee.

Minimize Show About the need to obtain a work book If on the day of termination of the employment contract it is impossible to issue the work book to the employee (the employee is absent from the organization or refuses to receive it), then the employer must send the employee a notice of the need to come to work for the work book or agree to send it by mail. From the day the notification is sent, the employer is released from liability for the delay in issuing a work book (Part.

End of term for temporary transfer

Sample filling out section III of the personal card (fragment) If the employee does not want to return to his previous job To the employee who refuses to perform the previous labor duties, the employer has the right to apply one of the disciplinary sanctions provided for in Article 192 of the Labor Code: - remark; - reprimand; - dismissal on the appropriate grounds, for example, for absenteeism (subparagraph "a", clause 6, part 1 of article 81 of the Labor Code of the Russian Federation). Temporary transfer to work related to the preferential calculation of retirement experience With the consent of the employee, the employer can transfer him to a job that gives the right to preferential calculation of retirement experience, for example, with harmful conditions labor, if it is not contraindicated for him for health reasons.
With preferential calculation of the length of service (harmful or dangerous working conditions, pedagogical activity), the length of service is confirmed by records in work book.

Temporary transfer to another job

Question A. Ivanova, an employee of our company, was temporarily transferred to the position of Chief Accountant during the parental leave of the main employee A. Petrova. Now the main employee A. Petrova is going to work.

Attention

Tell me, is it necessary to conclude an additional agreement with A. Ivanova again that she returns to her main position? Answer Answer to the question: No, if the temporary transfer is terminated at the end of the term, then a new add. no agreement needed. If the employee was temporarily transferred to another position for the period of absence of the main employee, then in connection with the return to work of the main employee, the temporary transfer period ends and the employee should be provided with her previous place of work.

Current legislation does not regulate how a temporary transfer should be completed.

Receive and sign: notify the employee about ...

Labor Code of the Russian Federation). It is established by agreement between the employee or the employer, at the initiative of the employee (for example, at the request of a pregnant woman), at the initiative of the employer (for example, for up to six months in the event of a change in the organizational or technological working conditions in accordance with part five of Article 74 of the Labor Code RF). In this case, the employer is obliged to notify the employee in writing at least two months in advance (Art.
second art. 74

Labor Code of the Russian Federation). Hide Show About the need to work on weekends By general rule weekend and non-working holidays prohibited (part one of article 113 of the Labor Code of the Russian Federation). Therefore, before attracting an employee to work on such a day, you must obtain his written consent.

Without consent, you can involve an employee, for example, to prevent a catastrophe, industrial accident, accidents (part three of article 113 of the Labor Code of the Russian Federation).

Do I need to notify the employee about the end of the employment contract?

Info

Registration of a temporary transfer Any change in the essential terms of an employment contract by the will of both parties must be documented. Supplementary agreement. A temporary transfer with the consent of the employee is drawn up by an additional agreement to the employment contract.

It prescribes the basis for the transfer, its term, the new duties of the employee, as well as other conditions that differ from the previously established ones (the amount of wages, working hours, etc.). When temporarily transferring to a vacant position in the supplementary agreement, you can specify a specific transfer period, which cannot exceed one year: "The parties have determined the validity period of the supplementary agreement - December 24, 2012" or prescribe the condition: position as a permanent employee. "

Minimize Show About temporary transfer to another job Temporary transfer of an employee is possible (Article 72.2 of the Labor Code of the Russian Federation):

to replace a temporarily absent employee, for whom, in accordance with the law, a place of work is retained - until this employee leaves for work (part one of article 72.2 of the Labor Code of the Russian Federation);
by agreement of the parties (part one of article 72.2 of the Labor Code of the Russian Federation);
at the initiative of the employer (parts two and three of article 72.2 of the Labor Code of the Russian Federation).

At the initiative of the employer, the employee can be transferred to another job for a period of not more than one month to eliminate the consequences (or prevent) such circumstances as an industrial accident, catastrophe, industrial accident, etc.

Important

Greetings to all visitors. In our LLC, the employee was temporarily transferred to the position of the head of the department. In add. in the agreement to the employment contract, the term is defined as "from February 1 to October 31".

On October 31 he works as a chief, and on November 1 he goes on vacation.

While he is on leave, another employee is appointed to the position of the chief. The first employee, while on vacation, files a lawsuit demanding that he be reinstated in the position of chief on the basis of Art.

72.2 of the Labor Code of the Russian Federation, due to the fact that at the end of the transfer period, the previous job was not provided to him. At the same time, he believes that the previous job should have been given to him on October 31, as he was temporarily transferred for a period until October 31. That is, in his opinion, on October 31, he should have worked in his previous position.
Ivan Shklovets, Deputy Head of the Federal Service for Labor and Employment © Material from KSS "Sistema Kadry" Ready-made solutions for personnel service on www.1kadry.ru Copy date: 12.09.2016

Situation: From what date do you need to provide the employee with his main workplace, if the end of the temporary transfer occurred during the employee's illness

Transfer to the main place at the end of the temporary transfer is possible during the period of illness. The illness of an employee during the period of temporary transfer does not increase the transfer period, including in a situation where the end of the temporary transfer falls directly on the period of illness. Therefore, the employee should be provided with his main workplace at the end of the temporary transfer period specified by the order, that is, from the next calendar day.

On the basis of this order, the employer will make an entry in the employee's work book about the transfer and indicate the date from which this transfer was made. This date will be the date of actual commencement of employment in this position.

In the column "Name, date and number of the document on the basis of which the entry was made" there will be a link to two orders. A sample of entries in the work book, see below. A sample of filling out a work book 1 - order of 17.07.2011 No. 311 on the temporary transfer of an employee; 2 - order dated 06.08.2012 No. 657 on recognizing as invalid the condition on the temporary nature of the transfer.
Personal card. The employer must make a record on the recognition of the temporary transfer as permanent in Section III "Hiring and Transferring to Another Job" of the employee's personal card. A sample of entries in a personal card, see below.

When temporary transfer is prohibited. It is not allowed to transfer an employee (even temporarily) to work that is contraindicated for him for health reasons (part 4 of article 72.1 of the Labor Code of the Russian Federation). If there are no medical contraindications and the employee agrees to the transfer, he can be temporarily transferred to work with harmful working conditions.

Remuneration for temporary transfer In case of temporary transfer by agreement of the parties, payment is made by agreement between the employee and the employer. As a rule, when transferring to another position, the employee is set the remuneration for this new position for him. If, with the consent of the employee, he is transferred to a less qualified job, the parties can agree to maintain the previous salary or to set an additional payment up to the previous salary. Read more about the features of transfer to a lower-paid job on p. 92.
In this form, in the table "Period of work for the last three months (in 2010 - for six months) of the reporting period", the policyholder, depending on the situation, fills in the following details: - special working conditions - put down the appropriate code. For example, code 27-1, if the employee is temporarily transferred to work with difficult working conditions; - conditions for early assignment of retirement pension - indicate the appropriate code.

For example, code 27-PD, if an employee is temporarily engaged teaching activities at school. Codes of special working conditions and conditions for early assignment of a retirement pension are given in Appendix No. 1 to the Instruction approved by the Resolution of the PFR Board of July 31, 2006 No. 192p.

Example. Head nurse medical center "Esculap" O.P.

Sometimes an employee has to be transferred to another job for a while. Such a need can be caused by a number of reasons - medical indications, industrial necessity, etc. However, not everything is so simple with the translation procedure. For example, some people confuse a transfer with a transfer and do not process it properly, or underpaid wages when transferring to a lower paid position. Read the article about the cases in which temporary transfers are possible, how to distinguish them from moving, how much to pay the temporarily transferred employee and how to document it all.

Instead of a preface

According to art. 72.1 of the Labor Code of the Russian Federation a transfer means a permanent or temporary change in the employee's labor function and (or) structural unitwhere the employee works, while continuing to work for the same employer, as well as transferring to work in another locality together with the employer.

Note that a change in a structural unit will be considered a translation only if its name was fixed in an employment contract (for example, in the form of the phrase “An employee is hired as an accountant in the financial and economic department”).

Since today we are considering temporary transfers, it is worth noting that they can be carried out with or without the consent of the employee.

Temporary transfer with the consent of the employee

To make a temporary transfer, you must conclude an agreement in writing. The employer first offers the employee a vacant position or position where the absent employee needs to be replaced. Then, upon agreement, an additional agreement is concluded on a temporary transfer to another job, position or to another structural unit.

And first of all, let's say about the timing of such a transfer. Temporary transfer to another job with the same employer is possible for a period of up to one year, and in the case when such transfer is carried out to replace a temporarily absent employee, for whom, in accordance with the law, the place of work is retained, - until this employee leaves for work.

Note that due to h. 4 art. 72.1 of the Labor Code of the Russian Federationit is prohibited to transfer and transfer an employee to work that is contraindicated for him for health reasons. That is, if there are no medical contraindications and the employee agrees, then he can be temporarily transferred to work, even with harmful or dangerous working conditions.

When concluding a transfer agreement, record in it the basis for the transfer, its term, the employee's new obligations, as well as other conditions that differ from those established by the employment contract.

Separately, let's talk about the wording of the transfer period. If a temporary transfer is carried out to a vacant position, it is possible to determine a specific date for the completion of the transfer, and if, to replace a temporarily absent employee, it is better to indicate the condition upon the occurrence of which the employee returns to his workplace, because the absent employee may return to work later (for example, when renewing leave or certificate of incapacity for work). For the latter case, the wording may be as follows: "This supplementary agreement is valid until the date of leaving for work from parental leave of the leading specialist E. D. Gulkina."

Based on the agreement signed by the parties, an order is issued to transfer unified form T-5 1] (T-5a). It is important to indicate in the "Type of translation" line that the translation is temporary. With such an order, the employee must be familiarized with signature.

The next step in arranging a temporary transfer will be making a record about it in section. III personal card "Hiring and transfers to another job" (f. T-2 or T-2 GS (MS)).

But in the workbook, an entry about a temporary transfer is not made. This rule is established h. 4 art. 66 of the Labor Code of the Russian Federation and clause 4 of the Rules for maintaining and storing work books , according to which only permanent transfer entries are made in the work book.

note

If an employee is transferred to another job or position, he must be familiarized with the job description and other local regulationsrelevant to the job. In addition, you may need to conduct a safety briefing or conclude a liability agreement.

Note that the employer should control the end of the temporary transfer, since by virtue of h. 1 tbsp. 72.2 of the Labor Code of the Russian Federation, if, at the end of the transfer period, the employee is not provided with the previous job, and he did not demand it and continues to work, then the condition on the temporary nature of the transfer becomes invalid and the transfer is considered permanent... In this regard, the question arises: is it necessary to somehow formalize the provision of the previous job? Labor legislation does not contain requirements for processing the return of an employee. In the meantime, we recommend doing this. Usually, for this, an order (order) is issued to terminate the performance of duties in a temporary position and return to the performance of duties in the main position. It can look like this.

State Autonomous Institution of the Arkhangelsk Region

"Sports Training Center"

arkhangelsk

In connection with the expiration of the temporary transfer by agreement of the parties

I ORDER:

1. Olga Viktorovna Pshenitsyna, temporarily, by agreement of the parties dated 04.04.2014 No. 2, who held the position of deputy head of the support department for sports teams, to begin work under the employment contract dated 12.06.2010 No. 10-06, as chief specialist of the support department for sports teams teams, since August 21, 2014

2. Accounting departments to calculate Pshenitsyna O. V. wages in accordance with staffing table on the position of chief specialist of the department of support of sports teams.

Director Zlakov I. I. Zlakov

I have read the order. Pshenitsyn, 08/20/2014

It may so happen that the main employee leaves or the temporarily replaced position is completely vacant, and the management of the organization, and the temporary employee himself, does not mind making the temporary transfer permanent. In this case, it is necessary to conclude another additional agreement, indicating in it that a temporary transfer made by agreement from such and such a date is considered permanent. On the basis of the agreement signed by the parties, an order must be issued in an arbitrary form, in which it is also to be confirmed that the condition on the time of transfer has ceased to be valid.

Note that there is a nuance in this situation. When transforming a temporary transfer into a permanent one, it is necessary to make an entry in the work book. Moreover, the date of the transfer will be the first day of the temporary transfer.

Example

An employee of the State Budgetary Institution, by agreement of the parties, was transferred to the position of foreman of a road maintenance section for six months from February 3, 2014. After this period, the parties signed an agreement that the transfer is considered permanent. How to make an entry in the work book?

№ records	date			Information about hiring, transfer to another permanent job, qualifications, dismissal (indicating the reasons and reference to the article, clause of the law)	Name, date and number of the document on the basis of which the entry was made
№ records	number	month	year
1	2			3	4
…	…	…	…	…	…
				State budgetary institution
				Vladimir region "Management
				highways»
8	09	12	2012	Accepted to the position of the host	Order dated 09.12.2012
				specialist expert.	№ 22
9	03	02	2014	Transferred to the position of chief	Order dated 03.02.2014
				Department of acceptance of work performed	№ 16*
				for repair and maintenance	Order dated 07.28.2014
				highways.	№ 47**

*
Temporary transfer order.

**
An order to recognize as invalid the condition on the temporary nature of the transfer.

Please note that if an employee does not start work under an employment contract, that is, he wishes to continue work in accordance with the temporary transfer order, the employer has the right to apply measures to him. disciplinary responsibility: remark, reprimand, dismissal on appropriate grounds, for example, for absenteeism - nn. "A" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation.

Temporary transfer without the consent of the employee

As we have already understood, as a general rule, a temporary transfer, as well as a transfer on a permanent basis, is made by agreement of the parties to the employment relationship. However, the Labor Code makes an exception for some cases. So, the employee can be transferred without his consent to work not stipulated by the employment contract with the same employer to prevent or eliminate the consequences:

natural or man-made disasters;
industrial accident or industrial accident;
fire, flood, famine, earthquake, epidemic or epizootic;
any exceptional cases endangering the life or normal living conditions of the entire population or its part.

The term for transferring an employee without his consent may not exceed one month.

Transfer of an employee without his consent to work not stipulated by the employment contract with the same employer is also allowed in the following cases:

downtime (temporary suspension of work due to economic, technological, technical or organizational reasons);
the need to prevent destruction or damage to property;
replacement of a temporarily absent employee.

However, it should be borne in mind that for the transfer in these cases, both the simple and the need to prevent the destruction or damage of property or to replace a temporarily absent employee must be caused by the extraordinary circumstances indicated above.

Plenum of the RF Armed Forces in Resolution No. 2 noted that if, when transferring to another job in case of downtime, the need
prevention of destruction or damage to property or replacement of a temporarily absent employee, the employee will have to perform work of lower qualifications, then such a transfer will h. 3 tbsp. 72.2 of the Labor Code of the Russian Federation possible only with the written consent of the employee.

The Labor Code does not limit the number of such transfers of an employee during a calendar year, since in these cases unforeseen and urgent work is performed. But if due to extraordinary circumstances it becomes necessary to transfer an employee for a period of more than one month, the transfer is still possible only with the consent of the employee.

We emphasize: if the employer cannot prove the existence of circumstances with which the law connects the possibility of transfer without the consent of the employee, such a transfer will be recognized as illegal ( clause 17 of Resolution No. 2 ). So, since 1999, T. worked as a cardiovascular surgeon at the Pskov Regional Hospital. By order of the chief physician, he was temporarily transferred without his consent to the clinic of the regional hospital to the position of cardiovascular surgeon with reference to the need to fill the vacant position and in order to prevent threats to the life and health of the population. Believing the employer's decision to be unlawful, T. refused to perform his duties at the clinic, for which he was disciplined in the form of a reprimand. The court ruled illegal both the order to impose a disciplinary sanction and the order on temporary transfer. GBUZ did not provide evidence of extraordinary circumstances that necessitated the temporary transfer of the employee without his consent to work not stipulated by the employment contract. The translation was carried out under the pretext of production necessity in the absence of exceptional cases indicating the real need for such a translation, and therefore the said translation is illegal (Appeal ruling of the Pskov Regional Court dated 02.10.2012 in case No. 33-1580).

note

Refusal to perform work when transferring in case of emergency, committed in compliance with the law, is considered a violation labor discipline, and absence from work is absenteeism ( clause 19 of Resolution No. 2 ). It should be borne in mind that due to par. 5 h. 1 tbsp. 219, h. 7 art. 220 of the Labor Code of the Russian Federation an employee cannot be disciplined for refusing to perform work in the event of a danger to his life and health due to violation of labor protection requirements, with the exception of cases provided for federal laws, until such a hazard is eliminated, or from the performance of heavy work and work with harmful and (or) dangerous working conditions not provided for by the employment contract. Since the Labor Code of the Russian Federation does not contain norms prohibiting an employee to use this right even when the performance of such work is caused by a transfer on the grounds specified in art. 72.2 of the Labor Code of the Russian Federation, the employee's refusal to temporarily transfer to another job for the above reasons is justified.

A temporary transfer without the consent of the employee also needs to be issued. For this, a transfer order is issued indicating the reasons (disaster, industrial accident, etc.). And of course, it is better to back up such an order with appropriate documents, otherwise the employee may refuse to transfer.

Translation or relocation?

Sometimes the employer confuses a temporary transfer with a transfer and, instead of drawing up an agreement and a transfer order, issues a transfer order. We recall that due to h. 3 tbsp. 72.1 of the Labor Code of the Russian Federationmoving from the same employer to another workplace, to another structural unit located in the same locality, assigning work on another mechanism or unit, if this does not entail changes in the terms of the employment contract determined by the parties , does not require the consent of the employee.

Before making a move, carefully check the terms of the employment contract - whether it contains a workplace, a structural unit, and whether the employee's job function will change. Otherwise, labor disputes cannot be avoided. So, G., working in the PMU as a senior accountant, was moved to the position of an accountant. The PMU believed that these positions have similar labor functions. Considering the dispute on the recognition of the illegal transfer order, the court noted: from the employer's order it follows that, in fact, there was no transfer, but the transfer of G. to another position, which entailed a change in the employee's labor function. These actions were carried out without the consent of G., therefore, the order to move is illegal ( Appeal ruling of the Yaroslavl Regional Court dated 25.04.2013 in case No. 33-2536 / 2013).

Remuneration for temporary transfer

When transfers are made without the consent of the employee (in the cases named in part 2, 3 tbsp. 72.2 of the Labor Code of the Russian Federation), wages are made for the work performed, but not lower than the average earnings for the previous work. That is, if the employee's salary for the work performed is lower than his previous average earnings, then he is paid the previous average earnings, determined in accordance with the established procedure.

Well, if the salary for a new job exceeds the average salary of an employee, then he / she is paid an additional payment to the salary for the new job. So, the claims for the recovery of the lost wages were satisfied by the court: during the period of temporary transfer to another position, the plaintiff was fulfilling the duties of an employee of a higher position, therefore, the difference in salary is subject to recovery in his favor ( Determination of the Perm Regional Court of 25.09.2013 in case No. 33-8092).

When a temporary transfer is made by agreement of the parties, the remuneration is also determined by agreement of the parties, however, usually when transferring the employee, the salary is set new position... If he is transferred to a less qualified job, the parties can agree to maintain the previous salary or to assign a supplement to the previous salary.

Temporary transfer for medical reasons

As we have found out, temporary transfers are carried out with or without the consent of the employee. However, according to 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 the medical opinion. Moreover, other work should not be contraindicated for the employee for health reasons.

Note

A medical certificate is issued in the manner prescribed by the Order of the Ministry of Health and Social Development of the Russian Federation dated 02.05.2012 No. 441 "" On approval of the procedure for issuing medical organizations certificates and medical reports ". A temporary disability certificate is not considered a medical certificate.

When receiving a medical certificate from an employee, first of all, you need to pay attention to the translation time specified in the certificate, since further actions of the employer depend on this.

If an employee is shown a temporary transfer to another job for up to four months, the employer must offer him another job that is suitable for health reasons. In the absence of such or refusal of the employee, the employer is obliged to suspend him from work with the preservation of his place of work (position) for the entire period specified in the medical report. For this, the employer issues an order in any form. The order should indicate the period for which the employee is suspended, if the period is still not specified, when admitting to work, an order for admitting the employee should be issued.

If, in accordance with the medical opinion, the employee needs a temporary transfer to another job for a period of more than four months or a permanent transfer, then if he refuses to transfer or if the employer does not have an appropriate job, the employment contract is terminated by item 8 h. 1 art. 77 of the Labor Code of the Russian Federation - the employee's refusal to transfer to another job, which is necessary for him in accordance with the medical certificate issued in the manner prescribed by federal laws and other regulatory legal acts RF, or the employer does not have the appropriate job. Upon dismissal on this basis, the employee is paid a severance pay in the amount of two-week average earnings ( h. 3 tbsp. 178 of the Labor Code of the Russian Federation).

Note

According to art. 254 of the Labor Code of the Russian Federation pregnant women, in accordance with a medical report and at their request, are transferred to another job, excluding the impact of adverse production factors, while maintaining the average earnings from the previous job. Before providing another job, the pregnant woman is subject to release from work with the preservation of the average earnings for all work days missed as a result, at the expense of the employer. A similar guarantee is provided for women with children under the age of one and a half years.

Athlete's temporary transfer

This is a special type of temporary transfer - it can be carried out to another employer. So, based on art. 348.4 of the Labor Code of the Russian Federation in cases where the employer is unable to ensure the participation of an athlete in sports competitions, it is allowed, by agreement between the employers, to temporarily transfer the athlete with his written consent to another employer for a period not exceeding one year. In this case, the employer at the place of temporary work concludes a fixed-term employment contract with the athlete in accordance with the requirements art. 348.2 of the Labor Code of the Russian Federation.

For the period of the temporary transfer of the athlete to another employer, the originally concluded employment contract is suspended, but the validity period is not interrupted.

note

If an athlete, during the period of temporary transfer to another employer, wants to work part-time, a permit for such work must be obtained both from the employer at the place of temporary work and from the employer with whom the employment contract was initially concluded ( part 2art. 348.7 of the Labor Code of the Russian Federation).

In case of early termination of an employment contract concluded for the period of temporary transfer of an athlete to another employer, on any of the grounds provided for by the Labor Code of the Russian Federation, the initially concluded employment contract is valid in full from the next working day after the calendar date on which the termination of the employment contract concluded on temporary transfer period.

If, after the expiry of the temporary transfer to another employer, the athlete continues to work for the employer at the place of temporary work and neither the athlete, nor the employer at the place of temporary work, nor the employer with whom the employment contract was originally concluded, require termination of the employment contract concluded for the period of temporary transfer , and the renewal of the originally concluded employment contract, the latter is terminated and the employment contract concluded for the period of temporary transfer is extended for a period determined by the agreement of the parties, and in the absence of such an agreement - for an indefinite period.

Finally

As you can see, there are plenty of types of temporary translation and each has its own characteristics. Let's outline the main points again. Firstly, temporary transfers are carried out only within the organization (with the exception of athletes). Secondly, such a transfer is carried out with the consent of the employee. But the Labor Code of the Russian Federation establishes exceptions: an employer can make a temporary transfer for up to one month in case of prevention emergencies and disasters or elimination of their consequences. And thirdly, the remuneration of workers temporarily transferred without their consent cannot be lower than the average earnings from their previous job.

Approved by the Resolution of the State Statistics Committee of the Russian Federation dated 05.01.2004 No. 1 "On the approval of unified forms of primary accounting records on labor accounting and remuneration ”.

In part 1 of Art. 72.2 of the Labor Code of the Russian Federation it is established that if, at the end of the transfer period, the employee is not provided with the previous job, and he did not demand its provision and continues to work, then the condition on the temporary nature of the transfer becomes invalid and the transfer is considered permanent. Therefore, it is important for the employer not to miss the deadline for the completion of the employee's temporary transfer. How this procedure is carried out is not established by law. But since a temporary transfer is made out primarily by an agreement to the contract and an order, the provision of the previous work must also be documented. However, required documents only in the case when the transfer period is not established by the agreement and the transfer order, when the employee is transferred to replace a temporarily absent employee, for whom, in accordance with the law, the place of work is retained.

How is a temporary transfer terminated?

If the term for a temporary transfer depends on a specific event, for example, the main employee leaves vacation, return from a business trip, the end of the period of incapacity for work, etc., then in this case we advise you to do otherwise. In the agreement, it is necessary to indicate precisely the condition upon the occurrence of which the employee returns to the workplace, and not a specific date. This circumstance is due to the fact that the release date of the main employee may be changed in connection with early withdrawal from parental leave, extension of a business trip or extension of a certificate of incapacity for work.

And in order not to subsequently draw up additional documents with changes, it is more convenient to indicate: “The additional agreement is valid until the date of leaving for work from the parent's parental leave planning department I.E. Vorontsova ". Temporary transfer order.

End of term for temporary transfer

The notification is intended to inform the opponent that:

the employer no longer needs the employee's services;
the employee does not want to continue working in the organization.

It is worth noting that, as with indefinite labor relations, the employee, on his own initiative, has the right to terminate the employment contract, without waiting for its end, notifying the manager in advance. Points to pay attention to If an employment contract is concluded for a certain period without sufficient grounds, the supervisory authorities will be interested in the legality of such labor relations and finding out whether such paperwork is not an attempt by the employer to evade providing the worker with the stipulated rights and guarantees for persons who work on a permanent basis, that is, who have entered into permanent contracts.

Temporary transfer to another job

URGENTLY FROM THE EDITORIAL! Subscribe today and get a 10% discount and 4,000 rubles to your account! Phone: 8 800 550-15-57 Download invoice Employee returns to previous work The Labor Code does not contain any requirements for how the return of an employee to his previous place of work after the end of the temporary transfer period should be formalized. Substitute employee notification. Before the end of the transfer period, it will not be superfluous to send a temporary employee a notification about the imminent departure of the main employee to work. See below for a sample notice. Notification of the withdrawal of a temporarily absent employee. New supplementary agreement.

The end of the temporary work and the return to the previous work with a new supplementary agreement to the employment contract are not drawn up.

Receive and sign: notify the employee about ...

Attention

MinimizeShow On the right to refuse a business trip Labor legislation prohibits sending employees on business trips during the period of the apprenticeship agreement, if the business trip is not related to apprenticeship (Article 203 of the Labor Code of the Russian Federation); pregnant women (Article 259 of the Labor Code of the Russian Federation); minors under the age of 18, with the exception of creative employees (Article 268 of the Labor Code of the Russian Federation). But there is a category of persons who can be sent on a business trip if certain conditions are met, namely, when they are familiarized with the right to refuse a business trip, a business trip is not prohibited in accordance with a medical report, there is a written consent to a business trip. It:

workers caring for sick members of their families in accordance with a medical certificate (Art.

259 of the Labor Code of the Russian Federation);

workers with disabled children or disabled children from childhood to 18 years of age (Art.

Do I need to notify the employee about the end of the employment contract?

On his own initiative, an employee can resign at any time by notifying management at least two weeks in advance of the decision... In order for the dismissal not to contradict the legislative norms, if the company does not need the permanent work of an employee hired for a certain period, he should be notified in writing three days before the end of the contractual relationship under the conditions fixed by the documents. General concepts The legislator does not impose any special requirements for the preparation of a written notice of the termination of labor relations in the near future.

The contract can even be prolonged if the parties come to a general agreement.

Info

There are no unified forms for filling out, if necessary, to notify the employee about the termination of employment. In organizations, I usually develop my own forms, approving them by local legal acts of internal use. It should be clear from the notification who is sending the message and to whom, that is:

the name of the organization is reflected (when using letterhead, there is no need to repeat it), the personal data of the employee with whom the term of the contractual relationship comes to an end, indicating the position (profession) held, clarifying the structural unit.

The text part reflects the essence of the notification, recalling the imminent termination of labor relations, referring to the terms of the employment contract with reliable details of the date of its conclusion and registration number, clause providing for the admission of an employee to certain period time.

This follows from part 4 of article 66 of the Labor Code (it refers to the transfer to another permanent job), as well as from paragraph 4 of the Rules for maintaining and storing work books, making forms of work books and providing employers with them, approved by the decree of the Government of the Russian Federation of 04/16/2003 № 225 "On work books". Combining employment record in the work book. Other documents. Before an employee starts a new job, he should be familiarized with the job description against signature.
Depending on the nature of the work, it may be necessary to conduct a safety briefing with him, conclude an agreement on material liability.
The Labor Code of the Russian Federation and other federal laws. Despite the fact that when concluding a fixed-term employment contract, the period of its validity is stipulated in Art. 58 of the Labor Code of the Russian Federation, the legislator focuses on:

if, after this time, the person continues to perform his functional duties;
the parties did not initiate the termination of the employment relationship, the contract automatically goes into the category of unlimited.

If the contract specified a validity period from 01.04.2017 to 30.06.2017, but in July the employee continued to go to work and perform the indicated job duties, an employer who decides to terminate employment with him in August has no right to refer to the termination of an employment contract upon expiration. It is now possible to dismiss an employee only in accordance with Art. 81 of the Labor Code of the Russian Federation, in the manner prescribed by law.
On the issue of using the prepositions "before" and "by" there are many directly opposite opinions, both lawyers and linguists. I will not voice them, I will try to formulate my own. The Labor Code does not stipulate the prepositions “before” and “on” in any way, although some legal acts contain such an indication (in particular, part 5 of Art.
16 of the Law "On Enforcement Proceedings"). However, the analogy of law does not apply here. Some scientific minds nevertheless express their position that if the deadline is indicated before October 31 (in our case), then the last day of the deadline would fall on October 30 and October 31, our employee would really need to provide the previous place of work, that is, 31 October he would have to work in his previous position. But this state of affairs is not legally fixed.

Article 14 of the Labor Code establishes that the course of the terms with which this Code binds the termination of labor rights and obligations begins on the next day after the calendar date that determines the end of the labor relationship. Considering that the prepositions "before" and "by" are not defined in any way in the Labor Code, and the employer clearly meant a temporary transfer until the end of the month, and not one day before its end, I believe that in our case there is an indication of October 31 exactly as on the last day of the term and our employee had to take up duties in his previous position precisely from November 1. I ask you to comment on this answer. PS. In addition, October 30 was Sunday - a non-working day.
In accordance with the same Art. 14 of the Labor Code, if the last day of the term falls on a non-working day, then the next working day following it is considered the end of the term.

Important

About the start time of the vacation The employee must be notified of the start time of the vacation by personal signature no later than two weeks before its start (part three of article 123 of the Labor Code of the Russian Federation). CollapseShow About attracting to overtime work Overtime is work performed by an employee on the initiative of the employer outside of the working hours established for the employee (part one of article 99 of the Labor Code of the Russian Federation). As a general rule, to involve an employee in overtime work, you must obtain his written consent.

Without consent, you can involve an employee, for example, to prevent or eliminate the consequences of accidents, disasters, circumstances that endanger the life or normal living conditions of people (part three of article 99 of the Labor Code of the Russian Federation). CollapseShow About the introduction of part-time work Part-time working time can be installed both upon hiring and subsequently (part one p.

"Personnel officer. Labor law for a personnel officer", 2012, N 12

TEMPORARY TRANSLATION UNDER AGREEMENT TO REPLACE A TEMPORARILY ABSENT WORK

The article is devoted to the peculiarities of a temporary transfer carried out in order to replace a temporarily absent employee. The author examines in detail the procedure for processing this type of translation, as well as the specifics of its payment. Particular attention is paid to the issues of termination of the transfer in various circumstances, including the dismissal of a substituted employee.

The current legislation provides for two types of temporary transfers to replace a temporarily absent employee, for whom, in accordance with the law, a place of work is retained:

1) by agreement of the parties, concluded in writing - until the temporarily absent employee leaves for work (part 1 of article 72.2 of the Labor Code of the Russian Federation);

2) the transfer of an employee without his consent for a period of up to one month to a job not stipulated by an employment contract with the same employer - if the need to replace a temporarily absent employee is caused by extraordinary circumstances specified in Part 2 of Art. 72.2 of the Labor Code of the Russian Federation, that is, in the event of a natural or man-made disaster, industrial accident, industrial accident, fire, flood, hunger, earthquake, epidemic, epizootic and in any exceptional cases that endanger the life or normal living conditions of the entire population, or parts of it. At the same time, transfer to work requiring a lower qualification is allowed only with the written consent of the employee (part 3 of article 72.2 of the Labor Code of the Russian Federation).

Agreement of the parties

Most often, in practice, it is the first type of such transfers that causes difficulties - a temporary transfer to replace a temporarily absent employee by agreement of the parties.

So, as a general rule, a temporary transfer to another job involves a temporary change in the labor function and (or) the structural unit in which the employee works, if the structural unit was specified in the employment contract (part 1 of article 72.1 of the Labor Code of the Russian Federation).

In this case, any temporary transfer is allowed only with the written consent of the employee, with the exception of the cases provided for in parts 2 and 3 of Art. 72.2 of the Labor Code of the Russian Federation (part 1 of Article 72.1 of the Labor Code of the Russian Federation).

Some scholars draw attention to the fact that from the point of view of the interests of the parties to the employment contract, a temporary transfer by agreement of the parties is primarily a transfer in the interests of the employer, since the possibility of this transfer depends on the employer.

At the same time, it should be noted that the employee may be no less interested in such a transfer, for example, from the point of view of disclosing his creative potential, gaining new competencies, developing a career in this organization, or receiving a higher salary in a certain period of time.

The legislator does not oblige the employer to replace a temporarily absent employee, respectively, making a decision on the need for replacement in terms of ensuring continuity production process completely depends on the employer. He, as a rule, must offer the employee an appropriate temporary transfer. Theoretically, one can imagine a situation when employees come up with a proposal for a temporary transfer, especially when, due to the absence of the main employee, his duties without any legal registration additional burden falls on the shoulders of other people in the organization.

It should be noted that, despite the general limitation of the duration of a temporary transfer to a one-year period, for cases of temporary transfer to replace a temporarily absent employee, as an exception, this limitation has been lifted. That is, in cases of replacement of a temporarily absent employee, when the end date, as a rule, cannot be determined by a specific date, the duration of the transfer is limited by a legal fact related to the employee's departure to work, for whom, in accordance with the law, the place of work was retained for a certain period.

Indeed, one of the main legal properties of a temporary transfer is its urgent nature. So, in part 1 of Art. 72.2 of the Labor Code of the Russian Federation expressly stipulates that a temporary transfer to replace a temporarily absent employee, for whom, in accordance with the law, a place of work is retained, is carried out before this employee leaves work. Thus, the day of the end of the temporary transfer in case of the main employee leaving for work will in all cases be the last working day preceding the day of the main employee leaving.

To offer an employee a temporary transfer to replace another absent employee, the employer must first legally complete the previous temporary transfer, usually returning the employee to the previous job, and then negotiate a new temporary transfer with the employee.

Here it is necessary to pay attention to the fact that such a temporary transfer can be quite lengthy in time, for example, for the period when the main employee is granted parental leave up to 3 years old (part 1 of article 256 of the Labor Code of the Russian Federation). In this regard, many employees pay attention to the fact that their rights are limited in a certain way, since the time of temporary transfer is not reflected in the work book. Some experts consider this to be the main drawback of such translations. At the same time, it is even believed that the employer can make an entry in the work book at the request of the employee.

It is difficult to agree with such a position. Part 4 of Art. 66 of the Labor Code of the Russian Federation provides that only information about transfers to another permanent job is entered in the work book, therefore, even by mutual agreement, it is not possible to reflect the temporary transfer in the work book. But at the same time, the employee can confirm the fact of replacement both by the corresponding orders and by a written agreement. Thus, it seems that in this case one should not talk about the restriction of the employee's rights or the disadvantageous nature of the replacement for the employees of the organization.

Saving the workplace

At the same time, one of the most difficult problems in law enforcement practice last years it remains for the parties to make a decision on a temporary transfer to replace a temporarily absent employee, who, in accordance with the law, retains a place of work.

Part 1 of Art. 72.2 of the Labor Code of the Russian Federation requires the conclusion of written agreements of the parties for such translations. At the same time, the Code does not specify in any way the legal nature of such agreements. As a result, science and practice have developed two directly opposite approaches to such agreements.

Some experts believe that a temporary transfer should be formalized by concluding an agreement on changing the terms of the employment contract determined by the parties (Article 72 of the Labor Code of the Russian Federation). This position is based on the fact that since a temporary transfer is a type of transfer to another job (part 1 of article 72.1 of the Labor Code of the Russian Federation) and implies, albeit a temporary, change in the labor function and (or) the structural unit specified in the employment contract, then there is a change in the terms of the employment contract in force with the employee.

Such an approach seems to the author to be somewhat straightforward and does not fully take into account both the totality of the requirements of the current legislation and the specifics of temporary translation as a legal phenomenon. At the same time, a number of specialists in recent years have been actively paying attention to the fact that temporary transfers by agreement of the parties imply the conclusion of an independent type of legal agreement, which is more justified.

Indeed, in order to determine the legal nature of temporary transfers to another job by agreement of the parties, it is necessary not only to analyze in detail a number of norms of the current legislation, but also to systematically and comprehensively evaluate their entire set.

The legal nature of temporary transfers

So, firstly, the legislator himself uses various legal constructions, talking about changing the terms of the labor contract determined by the parties (Article 72 of the Labor Code of the Russian Federation) and about temporary transfer by agreement of the parties (Part 1 of Article 72.2 of the Labor Code of the Russian Federation). In one case, we are talking about the conclusion in writing of an agreement on changing the terms of the employment contract determined by the parties, in the other - about the written agreement of the parties.

It seems that during temporary transfers by agreement of the parties, the legislator does not accidentally use a legal structure that differs from the general rules for changing the terms of an employment contract. In this particular case, he emphasizes that it is not just about changing the terms of the employment contract that we are not talking here, and this agreement is an independent type of agreement, separate from the agreements on changing the terms of the employment contract.

In the Resolution of the Plenary The Supreme Court RF of 28.12.2006 N 63, which set out completely in new edition Resolution of the Plenum of the Supreme Court of the Russian Federation of 17.03.2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" (hereinafter - Resolution N 2), it is also noted that in accordance with Art. Art. 60 and 72.1 of the Labor Code of the Russian Federation, the employer does not have the right to transfer the employee without his written consent, with the exception of cases expressly provided for in parts 2 and 3 of Art. 72.2 of the Labor Code of the Russian Federation. At the same time, the Supreme Court of the Russian Federation speaks precisely about the written consent of the employee, and not about the conclusion of an agreement on changing the terms of the employment contract.

Secondly, a change in such conditions of an employment contract as a labor function or a structural unit is possible only with the consent of the parties, which always requires a new agreement on changing the terms of an employment contract (Articles 72, 72.2 of the Labor Code of the Russian Federation). But when the temporary transfer is terminated, which the legislator associates with the legal fact of the end of its term, the employee has an unconditional right to return to his previous place of work, that is, to demand from the employer to provide it, and the employer has the same unconditional obligation to return the employee to this place work in the event of a similar requirement (part 1 of article 72.2 of the Labor Code of the Russian Federation).

Interestingly, the Labor Code of the Russian Federation does not establish a special form of implementation of such a requirement. The legislator also does not provide in this case the need to conclude another agreement on changing the terms of the employment contract, which implies the return of the employee to the main place of work, since entering into a contractual relationship involves the free expression of the will of the parties, their independent choice, and in this case there are protective legal mechanisms and guarantees that do not leave the parties the opportunity to agree on anything. The employer is simply obliged to fulfill the employee's request. It seems that it can be formalized in any legal way, including by filing an appropriate written application.

Translation procedure and its execution

And now let's imagine a situation that the temporary transfer of an employee is not formalized by agreement of the parties, but by an agreement on changing the terms of the employment contract. At the same time, the employee or employer at the end of the transfer period refuse to sign a new agreement on changing the terms of the employment contract. Would the worker lose because of this his right to demand the provision of the previous job? Or will the employer be able to transform the temporary transfer into a permanent one without the employee's consent?

Thus, when making temporary transfers, it seems necessary to distinguish between written agreements between the parties (part 1 of article 72.1 of the Labor Code of the Russian Federation) and agreements on changing the terms of an employment contract (article 72 of the Labor Code of the Russian Federation).

The analysis also allows us to conclude that a temporary transfer to replace a temporarily absent employee, for whom, in accordance with the law, a place of work is retained, requires the conclusion of a written agreement of the parties, which is an independent special type of agreements in labor law that temporarily (for a certain period) suspends conditions of the main employment contract, but in no way changing its content.

The legislator does not impose any special requirements on the content of the parties' agreements on temporary transfer to replace a temporarily absent employee who retains his place of work. Moreover, in this case, it seems correct to rely on the norms of Art. 57 of the Labor Code of the Russian Federation, which determines the content of the employment contract. This first of all follows from the very definition of temporary transfer as a change in the labor function and (or) structural unit.

Indeed, a change in the labor function and (or) structural unit almost always presupposes a change in both the mandatory and additional conditions of the employment contract. Accordingly, in the agreement of the parties on the temporary transfer, it is necessary to indicate all the conditions of the employment contract that will apply during the period of the temporary transfer. It seems that the list of mandatory conditions of an employment contract should be presented in the relevant agreements in full.

When carrying out this type of temporary transfers, an employer must be fully aware that, in fact, a temporary transfer involves carrying out almost all procedures related to hiring. This is due not only to the direct prohibition to transfer an employee to work that is contraindicated for health reasons (part 4 of article 72.2 of the Labor Code of the Russian Federation).

So, in some cases, a temporary transfer by agreement of the parties may require a mandatory medical examination (surveys), education and training in the field of labor protection (Article 225 of the Labor Code of the Russian Federation), providing the employee with personal protective equipment (Article 221 of the Labor Code of the Russian Federation), etc.

Translation transformation

At the same time, one of the most controversial legal mechanisms in recent years is the transformation of temporary translation by virtue of the law into permanent translation.

So, in part 1 of Art. 72.2 of the Labor Code of the Russian Federation enshrines the rule that if, at the end of the transfer period, the employee is not provided with the previous job, and he did not demand it and continues to work, then the condition of the agreement on the temporary nature of the transfer becomes invalid and the transfer is considered permanent.

Here I would like to note that labor legislation really knows a number of cases when transformation occurs by virtue of the law, for example, when none of the parties demanded termination of a fixed-term employment contract due to the expiration of its validity and the employee continues to work after the expiration of the employment contract , the condition on the urgent nature of the employment contract becomes invalid and the employment contract is considered concluded for an indefinite period (part 4 of article 58 of the Labor Code of the Russian Federation), or if, after the expiration of the notice of dismissal on on their own the employment contract has not been terminated and the employee does not insist on dismissal, then the employment contract continues (part 6 of article 80 of the Labor Code of the Russian Federation).

As already noted, the main property of transformation by virtue of law is its imperative nature. The parties have nothing to agree on. Automatically the next day after the end of the temporary transfer by agreement of the parties, if the employee performed work to which he was transferred temporarily, his transfer becomes permanent. Thus, an agreement on a temporary transfer based on a direct legal requirement is transformed into an agreement to amend the terms of an employment contract for a permanent internal transfer.

This also confirms the conclusion about the need to reflect in the temporary transfer agreement by agreement of the parties to replace the temporarily absent employee of all the mandatory conditions of the employment contract, since the transformation does not provide for the conclusion of a new special agreement on changing the conditions of the employment contract, therefore, the absence of mandatory conditions of the employment contract in agreement can be regarded as administrative offense (Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

At the same time, the author sees no obstacles to concluding, at the request of the parties, an agreement on changing the terms of the employment contract in the manner provided for in Art. 72 of the Labor Code of the Russian Federation, to clarify certain conditions of the employment contract with a permanent transfer that has already occurred. But this agreement must take into account the fact of transformation that took place.

The date of the permanent transfer during the transformation will be the first business day following the end of the temporary transfer by agreement of the parties. On this day, it will be necessary to issue an order for permanent transfer in a unified form and make an entry on the permanent transfer in the work book.

IN similar situations for the employer, the need to return the replacement employee to his previous place of work in a timely manner in order to prevent automatic transformation becomes especially urgent.

Indeed, many employers would prefer the vacancy to remain vacant rather than to be filled by an employee who was acting as an absent temporary transfer by agreement of the parties. To avoid the occurrence of labor disputes, the employer should, on the last day of the temporary transfer (or earlier), issue a corresponding order to return the substitute employee to the main job and bring this order to him against his signature (in case of refusal to draw up a corresponding act).

The question also remains open about the possibility of the employer to refuse the employee who performed the corresponding work in the order of temporary transfer by agreement of the parties, in the permanent transfer to this vacant position, if the employer decided to fill the corresponding vacancy and the employee showed such interest.

It seems that in this case, the employee may raise the issue of an unjustified refusal to hire, since a refusal to transfer internally in a broad sense is a refusal to hire new job... This broad interpretation is based on paragraph "c" of Art. 7 of the International Covenant on Economic, Social and Cultural Rights of 12/16/1966 ( Russian Federation is a party to the Covenant), which provides for the same opportunity for everyone to advance in work to the corresponding higher levels solely on the basis of seniority and qualifications.

At the same time, in accordance with paragraph 10 of Resolution No. 2, if the court finds that the employer refused to hire due to circumstances related to business qualities this employee, such a refusal will be justified. But the employer must take into account here that the very fact of the successful completion of work by the employee in the order of temporary transfer by agreement of the parties is one of the proofs of the employee's compliance with this work in terms of business qualities.

Gaps in legislation

the legal mechanism for temporary transfers by agreement also has a number of shortcomings associated with the presence of certain gaps in the legislation.

Thus, the legislator did not provide for the possibility of early termination of a temporary transfer at the initiative of one of the parties, which causes significant difficulties in law enforcement practice. For example, the head of the human resources department is temporarily transferred to the position of the director of personnel for the period of leave of the last to care for a child until he reaches the age of 3 years.

The employer offers the employee to return early to the main place of work and sign the corresponding agreement, but the employee refuses. It is not possible to carry out the procedure for changing the terms of the employment contract for reasons related to changes in the organizational or technological working conditions, since it is unacceptable for transfers that are carried out solely by mutual agreement of the parties. It turns out that the only possible way for the employer is to wait until the end of the temporary transfer or early exit of the main employee.

The possibility of early termination by mutual agreement of the parties is also not specifically spelled out, but in this case it can be concluded that the parties can always agree with each other by drawing up an appropriate agreement.

Another problem is the possibility of concluding a fixed-term employment contract with an employee who was accepted to the place of an employee, transferred to replace a temporarily absent employee, for whom, in accordance with the law, a place of work is retained. Whether there is a reason for concluding a fixed-term employment contract in this case is an extremely controversial question.

Indeed, in Part 1 of Art. 59 of the Labor Code of the Russian Federation states that a fixed-term employment contract is concluded for the duration of the performance of the duties of an absent employee, for whom, in accordance with labor legislation and other regulatory legal acts containing labor law norms, collective agreement, local regulations, the employment contract retains the place of work. But the question arises, how to understand the legal construction of "fulfilling the duties of an absent worker"? In this case, two interpretations are possible:

1) an employee who is absent from the organization, for example, in case of temporary incapacity for work;

2) an employee who does not perform work in his main job function or in his unit, enshrined in the employment contract, including in connection with a temporary transfer by agreement of the parties to replace a temporarily absent employee.

Unfortunately, this question did not receive coverage in the acts of interpretation of law adopted by the Supreme Court of the Russian Federation, which gave rise to a very contradictory judicial and law enforcement practice.

Salary

At the same time, the most difficult question legal regulation Temporary transfer by agreement of the parties to replace a temporarily absent employee is traditionally remuneration for the time of transfer.

Here, in practice, one has to deal with a multitude of opinions and positions, which in a number of cases, obviously, are unfounded. So, in the Letter of Rostrud dated May 24, 2011 N 1412-6-1, it is noted that "... there may be cases when the job description of certain categories of workers provides that during the absence of another employee with a similar job function at the workplace, they perform duties of the absent employee. job descriptionsbeing integral part employment contracts do not imply additional payments, because in this case this work (fulfillment of the duties of a temporarily absent employee) is carried out within the framework of the concluded labor contract. "

This position of Rostrud appears to be unacceptable as it directly contradicts the current labor legislation.

So, firstly, in accordance with Art. Art. 56 and 57 of the Labor Code of the Russian Federation, an employment contract implies that the employee performs work exclusively for one job function (by position in accordance with the staffing table, profession, specialty, indicating qualifications; specific kind the work entrusted to the employee), which is a prerequisite of the employment contract. Moreover, in Art. 60 of the Labor Code of the Russian Federation, it is prohibited to require an employee to perform work that is not stipulated by the employment contract, with the exception of cases provided for by the Labor Code of the Russian Federation and other federal laws.

Secondly, in Labor Code RF provides only two legal way replacement of an absent employee:

1) temporary transfer to another job (Article 72.2 of the Labor Code of the Russian Federation);

2) fulfillment of the duties of a temporarily absent employee without release from work specified in the employment contract (Articles 60.2, 151 of the Labor Code of the Russian Federation).

Thus, the concept of temporary substitution as an execution official duties according to the position of a temporarily absent employee, when it is caused by production needs, on the basis of an order (instruction) for an organization, institution, enterprise, provided for by the Clarification of the State Committee of Labor of the USSR and the Secretariat of the All-Union Central Council of Trade Unions dated December 29, 1965 N 30/39 "On the procedure for payment of temporary substitution" (approved. By the resolution of the USSR State Committee for Labor and the All-Union Central Council of Trade Unions Secretariat dated December 29, 1965 N 820/39) (as amended on December 11, 1986), according to the author, should not be applied as contrary to labor legislation.

In paragraph 16 of Resolution No. 2, as already mentioned above, it is also directly noted that in accordance with Art. Art. 60 and 72.1 of the Labor Code of the Russian Federation, the employer does not have the right to transfer the employee without his written consent, with the exception of cases provided for in parts 2 and 3 of Art. 72.2 of the Labor Code of the Russian Federation, but a transfer by agreement of the parties to replace a temporarily absent employee, for whom, according to the law, the place of work is retained, even for production needs, is not a translation associated with parts 2 and 3 of Art. 72.2 of the Labor Code of the Russian Federation, therefore, in any case, always requires the consent of the employee. It should be especially noted that the concept of temporary substitution we are considering does not apply to the exceptions provided for by law.

At the same time, it is necessary to recognize the advisability of introducing a norm in the Labor Code of the Russian Federation obliging staff deputies to fulfill the duties of an absent manager on the basis of appropriate written orders that would not require their special consent, which is, first of all, extremely important to ensure the continuity of the production process.

Also, some employers believe that for temporary transfers by agreement of the parties, it is necessary to apply the norm enshrined in part 4 of Art. 72.2 of the Labor Code of the Russian Federation, which provides that an employee must be paid for the work performed, but not lower than the average earnings. One of the arguments is the situation when an employee is transferred by agreement of the parties to replace a temporarily absent employee for a lower-paid position (profession) compared to the main position.

It should be noted that in this case, such argumentation is inadmissible. The provisions of Part 4 of Art. 72.2 of the Labor Code of the Russian Federation are applicable exclusively to temporary transfers to replace a temporarily absent employee, provided for in Part 3 of Art. 72.2 of the Labor Code of the Russian Federation.

So, when transferring an employee without his consent for a period of up to one month to work not stipulated by an employment contract with the same employer, if the need to replace a temporarily absent employee is caused by extraordinary circumstances specified in Part 2 of Art. 72.2 of the Labor Code of the Russian Federation, that is, in the event of a natural or man-made disaster, industrial accident, industrial accident, fire, flood, hunger, earthquake, epidemic, epizootic and in any exceptional cases that endanger the life or normal living conditions of the entire population, or part of it, the employee will indeed be paid for the work performed, but not lower than the average earnings for the previous job.

But if the employee himself agreed for certain reasons, for example, for the purpose of planning further career growth, to perform lower-paid work when replacing, the employer cannot violate the principle of remuneration for work and is obliged to pay in accordance with the payment systems adopted in the organization.

Thus, we see that the legislator did not provide for a special provision in the Labor Code of the Russian Federation for paying for temporary transfers by agreement of the parties, including for replacing a temporarily absent employee, for whom, in accordance with the law, a place of work is retained. This is due to the fact that in this case they will always act and apply general rules wages existing in the organization.

So, the implementation of the principle of wages according to work assumes that the wages of each employee depend on their qualifications, the complexity of the work performed, the quantity and quality of the work performed (Article 132 of the Labor Code of the Russian Federation).

In this case, the salary of the employee is set in accordance with the wage systems in force for this employer (Article 135 of the Labor Code of the Russian Federation).

Consequently, in all cases of temporary transfer by agreement of the parties to replace a temporarily absent employee, for whom, in accordance with the law, a place of work is retained, the remuneration of the substitute employee must fully comply with the remuneration systems of this organization, established by the collective agreement, agreements, local regulations.

This is not only about the size of tariff rates and (or) salaries ( official salaries), but also on additional payments and bonuses of a compensatory nature, including for work in working conditions deviating from normal, additional payments and bonuses of a stimulating nature, as well as incentive payments (bonuses, etc.).

For example, if an employee in a certain period for which the bonus is calculated, part of the time worked in his main job function, and part of the time was replaced by a temporarily absent employee by agreement of the parties, the bonus should be calculated in proportion to the time worked in accordance with the bonus systems provided for each of the respective positions.

A similar legal position was also supported in the Decision of the Supreme Court of the Russian Federation of March 11, 2003 N KAS03-25, which notes that "according to Article 21 of the Labor Code of the Russian Federation, an employee has the right to full payment of wages in accordance with qualifications, labor complexity, and the quality of the work performed. It is quite obvious that the complexity of work and the amount of work performed ... during the absence of the employee being replaced is much higher than during the period when the brought workers perform work with a working manager ... ".

Bibliographic list

1. The rights of employers in labor relations / Institute of legislation and compare. jurisprudence under the Government of the Russian Federation / Ed. A.F. Nurtdinova, L.A. Chikanova. M .: Eksmo, 2010.

2. Khnykin GV Procedures for changing the labor contract // Legislation. 2009. N 1.

3. Mironov VI Labor law: Textbook for universities. SPb .: Peter, 2009.

4. Orlovsky Yu. P., Kuznetsov D. L., Belitskaya I. Ya., Koryakina Yu. S. HR administration (legal basis): Practical guide / Otv. ed. prof. Yu. P. Orlovsky. M .: Law firm "Contract", 2009.

D. Kuznetsov

Vice-rector

for scientific and methodological work

and innovations of CINO,

director

Graduate School of Law

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Additional agreement on early termination of the transfer. Temporary transfer by agreement to replace a temporarily absent employee. Athlete's temporary transfer

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How is a temporary transfer terminated?

End of term for temporary transfer

Temporary transfer to another job

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Temporary transfer with the consent of the employee

Temporary transfer without the consent of the employee

Translation or relocation?

Temporary transfer for medical reasons

Athlete's temporary transfer

How is a temporary transfer terminated?

End of term for temporary transfer

Temporary transfer to another job

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Do I need to notify the employee about the end of the employment contract?

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