Change of employment contract. Transfer to another job

Internal transfers: done correctly

In some cases, labor legislation allows the dismissal of employees only when it is impossible to transfer them to another job available to the employer, which the citizen can perform taking into account his state of health. We are talking here about both vacant positions or work corresponding to the qualifications of the employee, as well as vacant lower positions or lower paid work. In this case, the consent of the employee must be obtained. Please note that the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. An employer is obliged to offer vacancies in other localities only if this is provided for by a collective agreement, agreements, or employment contract (Articles 81, 83 and 84 of the Labor Code of the Russian Federation). We are talking about dismissal of employees in the following cases:

• reduction of the number or staff of employees of an organization, individual entrepreneur (clause 2 of Article 81 of the Labor Code of the Russian Federation);
• inconsistency of the employee with the position held or the work performed due to insufficient qualifications confirmed by certification results (clause 3 of Article 81 of the Labor Code of the Russian Federation);
• reinstatement at work of an employee who previously performed this work, by decision of the state labor inspectorate or court (clause 2 of article 83 of the Labor Code of the Russian Federation);
• disqualification or other administrative punishment that excludes the possibility of the employee fulfilling his duties under the employment contract (Clause 8 of Article 83 of the Labor Code of the Russian Federation);
• expiration, suspension for a period of more than two months or deprivation of an employee of a special right (license, right to drive a vehicle, the right to carry a weapon, other special right) in accordance with the law, if this entails the impossibility of the employee fulfilling his duties under the employment contract ( clause 9 of article 83 of the Labor Code of the Russian Federation);
• termination of access to state secrets if the work performed requires such access (clause 10 of Article 83 of the Labor Code of the Russian Federation);
• violation of the rules established by law for concluding an employment contract, if this violation was not the fault of the employee and excludes the possibility of continuing work (clause 11 of article 77 of the Labor Code of the Russian Federation).

We also remind you that an employee who needs to be transferred to another job in accordance with a medical report, with his written consent, the employer is obliged to transfer to another available job that is not contraindicated for this citizen due to health reasons. Meanwhile, if the specified person needs a temporary transfer for a period of up to four months, refuses the transfer, or the corresponding job is not available, then the employer must suspend the employee from work for this period while maintaining the place of work (position). However, during the period of suspension, the employee’s wages are not accrued. At the same time, if an employee needs a temporary transfer for a period of more than four months or a permanent transfer, then if he refuses the transfer or the employer does not have the appropriate work, the employment contract is terminated in accordance with paragraph 8 of part one of Article 77 of the Labor Code of the Russian Federation (Article 73 Labor Code of the Russian Federation).

As a rule, in all of the above cases, the employer sends the employee a corresponding notice or proposal to transfer the employee to his existing vacant positions (see Example 6).

Commentary on Article 72.1 of the Labor Code of the Russian Federation

Changing the terms of the employment contract that determines the employee’s place of work is made taking into account the provisions of Articles 72.1, 72.2 and 73 of the Labor Code of the Russian Federation. First of all, we draw the attention of dear readers to the fact that, in accordance with Article 72.1 of the Labor Code of the Russian Federation, transfer to another job means:

a) permanent or temporary change in the labor function of the employee and (or) the structural unit in which the employee works (if the structural unit was specified in the employment contract) - while continuing to work for the same employer;

b) transfer to work in another area together with the employer. The transfer of an employee to another workplace (to another structural unit) located in the same area does not require consent, if none of the previously determined terms of the employment contract changes. This situation, in accordance with part three of Article 72.1 of the Labor Code of the Russian Federation, qualifies as displacement.

Temporary transfer

Temporary performance of work not specified in the employment contract is permitted if:

1. mutual agreement (no more than 1 year);
2. the need to replace another employee (until the replacement returns).

If in both cases, after the expiration of the additional agreement, the employer does not offer to return to the previous place, then the temporary transfer automatically becomes permanent.

The same rule applies if the employee does not himself make a request for the return of his previous work.

Also, force majeure circumstances that pose a threat to human life can serve as a reason for an intermittent change in the field of activity, for example:

• natural disasters (flood, earthquake, hurricane, etc.);
• accident at work (production);
• accident;
• epidemic, etc.

Here, the purpose of the translation is to prevent the occurrence of emergency incidents or eliminate their consequences. But the duration of forced work should not exceed 1 month.

Does the employee's health status matter?

It happens that a transfer is necessary for the worker himself if his job duties have become impossible to perform due to a special health condition.

According to the Labor Code of the Russian Federation, the employer will have to offer other work, which, in accordance with a medical report (not a certificate of ability to work!) will not cause harm.

This option is temporary. Its maximum period can reach 4 months; the exact time frame is prescribed in a doctor’s certificate.

If an employee does not want to move to another position, the organization may suspend him from work for the period specified in the medical document. conclusion.

In this case, the workplace is retained until his recovery, but wages are not accrued, unless otherwise provided by the labor or collective agreement.

If, due to the employee’s health status, the temporary performance of other duties must last more than 4 months, the employer may terminate the employment contract if:

1. the employee refuses the transfer;
2. the organization cannot offer a suitable position due to its unavailability.

These actions are permitted by the Labor Code (clause 8, part 1, article 77).

A separate category consists of pregnant women. The enterprise is obliged to carry out a transfer to a safer job from a medical point of view.

The salary must be no lower than the average of your previous income. It is also permissible to reduce the load (productivity standards, working hours) to an acceptable level.

If an organization cannot provide a pregnant employee with a position that does not have a negative impact on the health of her and the child, then it is necessary to initiate temporary suspension from work.

In this case, forced leave will be paid for by the employer himself and will amount to the average monthly salary.

Changing the terms of an employment contract is regulated by Ch. 12 Labor Code of the Russian Federation.

Changing the terms of the employment contract determined by the parties, including transfer to another job, is allowed only by agreement of the parties to the employment contract, with the exception of cases provided for by the Labor Code of the Russian Federation. An agreement to change the terms of an employment contract determined by the parties is concluded in writing.

Changing the terms of the employment contract for reasons related to changes in organizational or technological working conditions

In the event that, for reasons related to changes in organizational or technological working conditions (changes in equipment and production technology, structural reorganization of production, other reasons), the terms of the employment contract determined by the parties cannot be preserved, they may be changed at the initiative of the employer, with the exception of changes in the employee’s labor function (Article 74 of the Labor Code of the Russian Federation).

The employee must be notified by the employer in writing of the introduction of these changes no later than 2 months before their introduction, unless otherwise provided by the Labor Code of the Russian Federation or other federal law. If the employee does not agree to continue working under the new conditions, the employer is obliged to offer him in writing:

• other work available in the organization that corresponds to his qualifications and state of health;
• in the absence of such work - a vacant lower-level position or lower-paid work that the employee can perform taking into account his qualifications and health status.

The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.

If the circumstances indicated above may lead to mass layoffs of workers, the employer, in order to preserve jobs, has the right, taking into account the opinion of the elected trade union body of the organization, to introduce a part-time working regime for a period of up to 6 months.

Concept of translation and movement

Employee transfer

Transfer to another job:

1. permanent or temporary change in the labor function of the employee and (or) the structural unit in which the employee works (if the structural unit was specified in the employment contract), while continuing to work for the same employer;
2. transfer to work in another area together with the employer.

Transfer to another job is permitted only with the written consent of the employee, except for the cases provided for in parts 2 and 13 of Article 72.2 of the Code.

Types of transfers to another job:

• permanent (the change in the employment contract has occurred for an indefinite period and the previous place and terms of the contract are not retained):

1. transfer to another enterprise, institution, organization, at least in the same area;
2. transfer to another area, at least with the same production;
3. translation at the same enterprise, institution, organization.

• temporary (the previous place of work and terms of the contract are preserved, but another job is assigned for a certain (short) period, after which the previous working conditions are restored - Article 72.2 of the Labor Code of the Russian Federation):

1. according to production needs, including substitution (Article 74 of the Labor Code of the Russian Federation);
2. pregnant women and women with children under one and a half years old for easier work;
3. for health reasons according to a medical report (Article 73 of the Labor Code of the Russian Federation);
4. at the request of the military registration and enlistment office to undergo military training without interrupting work.

• to another employer (for permanent work, at the written request of the employee or with his written consent; in this case, the employment contract at the previous place of work is terminated - clause 5, part 1, article 77 of the Code).

Consent for transfer , either permanent or temporary, must be obtained in writing. But if this did not happen, and the employee voluntarily began performing other work, then such a transfer can be considered legal. If a transfer is obligatory for an employee due to operational necessity (if it is carried out in compliance with the law), refusal to transfer is considered a violation of labor discipline, and absenteeism is considered absenteeism.

does not apply to a transfer and does not require the employee ’s consent.

When the jurisdiction of an organization changes and its reorganization, labor relations continue with the consent of the employee (Article 75 of the Labor Code of the Russian Federation).

A transfer to another locality, another locality according to the administrative-territorial division must be distinguished from a business trip to another locality. Their purpose and conditions are different. A business trip is a trip by an employee, by order of the administration, to another location for a limited period of time to perform work, usually in his specialty (official assignment). It does not require the consent of the employee (except for women with children under three years of age, etc.). The traveler retains his permanent place of work and average salary, and the expenses of the business trip are compensated to him in the form of travel allowances.

Temporary substitution, the performance of duties in the position of a temporarily absent employee, is also considered a transfer. The law classifies such a transfer as a production necessity. If an employee is entrusted with performing the duties of a temporarily absent employee without releasing him from his main job, then this will be a temporary combination of professions, and not a substitution. Substitution without the employee’s consent is limited to a month during the calendar year (Article 74 of the Labor Code of the Russian Federation).

Relocating a worker

Moving him in the same organization to another workplace, to another structural unit of this organization in the same area, or assigning work on another mechanism or unit is not considered a transfer , unless this entails a change in labor functions and changes in the essential terms of the employment contract (Article 72 of the Labor Code of the Russian Federation). The employer has the right to carry out such a move without the employee’s consent, provided that such a change is not contraindicated for him due to health reasons.

Does not require employee consent:

1. moving him from the same employer to another workplace, to another structural unit located in the same area,
2. entrusting him with work on another mechanism or unit, unless this entails a change in the terms of the employment contract determined by the parties.

It is prohibited to transfer or relocate an employee to a job that is contraindicated for him due to health reasons.

If the terms of the employment contract change, it is terminated (or terminated) in the following cases:

1. If there is no other work available in the organization that corresponds to the qualifications and health status of the employee, as well as in the event of the employee’s refusal of the offered work, it is terminated in accordance with clause 7 of Art. 77 of the Labor Code of the Russian Federation (in connection with a change in the terms of the employment contract determined by the employee and the employer).
2. If the employee refuses to continue working under the terms of the appropriate working hours, he is terminated in accordance with clause 2 of Art. 81 of the Labor Code of the Russian Federation (reduction in the number of employees) with the provision of appropriate guarantees and compensation to the employee.

Changes to the essential terms of the employment contract cannot be introduced that worsen the employee’s position in comparison with the terms of the collective agreement or agreement.

A change in the owner of an organization's property is not grounds for terminating an employee's employment contract, except for contracts with the head of the organization, his deputies and the chief accountant. The new owner can terminate employment contracts with the above three categories of organization managers within 3 months from the date he acquired ownership rights.
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What is a permanent transfer?

The most common type of transfer is permanent. It requires the written consent of the employee, since it entails significant changes to the terms of the employment contract. Changes can be of three types:

1. The employee's job function changes. Legislation, as can be seen from Art. 60 of the Labor Code of the Russian Federation, prohibits requiring an employee to perform work not stipulated by an employment contract, except in cases provided for by the Labor Code of the Russian Federation and other federal laws.
2. The labor function does not change, but the structural unit changes. Written consent to the transfer is required if the structural unit was specified in the employment contract.
3. It is required to transfer the employee to another location together with the employer. If the employee refuses to be transferred to another locality, the employment contract is terminated, the employee receives severance pay in the amount of two weeks' average earnings and a work book.

Please note that moving an employee to another workplace, assigning him to work on another mechanism, etc. does not require the employee’s consent if the moving does not change the working conditions specified in the employment contract. However, if the employment contract clearly stated in which premises or on which mechanism the employee works, then the movement of the employee entails a change in the terms of the employment contract; accordingly, it is necessary to issue an order and an additional agreement with the employee.

Is it possible to make a transfer without the employee’s consent?

Involuntary transfer to another job is possible under exceptional circumstances.

Their list includes:

1. situations that pose a danger to life and arise for any reason;
2. stopping the production processes of the enterprise (due to the economic crisis, technical
3. breakdown, organizational changes);
4. protection of company property from destruction or damage;
5. no differences between new and previous job responsibilities;
6. temporary absence of an employee who must be replaced without fail.

If a new, albeit temporary, job is characterized by a reduction in position, then the employer is obliged to request the written consent of the employee.

IMPORTANT! The period of transfer without the employee’s consent cannot be more than 1 month. At the same time, the employer has the right to draw up an agreement an unlimited number of times.

The salary in the new position cannot be less than the average salary in the previous position.

Change of employment contract. Transfer to another job

Labor legislation (Article 60 of the Labor Code) prohibits an employer from requiring an employee to perform work not stipulated by an employment contract.

Change of employment contract

possible only with the consent of its parties. This prohibition applies to all types of employment contracts (unless special legislation stipulates otherwise), except for two cases of temporary transfers - due to production needs and due to downtime. Unilateral changes to the employment contract are not allowed. Changing the employment contract means transferring the employee to another job and vice versa. Transfer to another job means a change in the essential terms of the employment contract. The essential terms of an employment contract are all the conditions directly stipulated in the written text of the employment contract (Article 57 of the Labor Code), as well as derivatives provided for by law, except in cases where they are changed by the legislator himself.

Transfer to another job

called a change in the employee’s activity, i.e. providing him with a different job compared to that agreed upon in the employment contract. Other work means a change in one of the essential terms of the contract (place of work, job function, remuneration, etc.) or other essential working conditions (degree of harmfulness of working conditions, work regime, volume of work, etc.). This concept of translation is enshrined in Art. 70 TK.

Transfer to another job at the same enterprise, institution, organization or to another enterprise, institution, organization or to another locality, at least together with the enterprise, institution, organization is allowed only with the consent of the employee, except for the cases specified in Art. 74 TC (production necessity).

It is not considered a transfer to another job and therefore does not require the employee’s consent to move him at the same enterprise, institution, organization to another workplace, to another structural unit in the same area, or to assign work on another mechanism or unit without changing the essential terms of the employment contract ( Article 72 of the Labor Code). Moving to another workplace without changing the essential terms of the employment contract does not change the employment contract, therefore it does not require the employee’s consent.

Article 73 of the Labor Code allows the employer to change essential working conditions without the employee’s consent while continuing to work in the same labor function, only if this is due to a change in organizational or technological working conditions, for example, if the production process has changed. But in these cases, the employee must be notified in writing no later than 2 months about changes in essential working conditions: systems and amounts of remuneration, working hours, benefits, working hours, combination of professions, changes in grades and job titles, etc. If, in this case, the employee does not agree to continue working, then the employer is obliged to offer him in writing another job available in the organization that corresponds to his qualifications and state of health, and in its absence, a vacant lower position or lower paid work that the employee can perform taking into account his qualifications and health status. In the absence of such work or if the employee refuses the offered work, his employment contract is terminated under clause 7 of Art. 77 Labor Code (in case of refusal to change essential working conditions).

If changes in organizational or technological working conditions may lead to mass layoffs of workers, the employer, in order to preserve jobs, has the right, taking into account the opinion of the elected trade union committee of the organization, to introduce part-time work for a period of up to six months. If an employee refuses to continue working part-time, then his employment contract is terminated by clause 2 of Art. 81 TK, i.e. to reduce the number (staff) of employees.

Changes to the essential terms of the employment contract cannot be introduced that worsen the employee’s position in comparison with the terms of the collective agreement or agreement (Article 73 of the Labor Code).

A change in the owner of an organization's property is not grounds for terminating an employee's employment contract, except for contracts with the head of the organization, his deputies and the chief accountant. The new owner can terminate employment contracts with the above three categories of organization managers within three months from the date he acquired ownership rights.

If the jurisdiction of the organization changes and its reorganization, labor relations with the consent of the employee continue (Article 75 of the Labor Code).

A transfer must be distinguished from a transition to another job, when an employee quits his previous job and starts a new one.

A transfer to another location, even with the same enterprise, institution, or organization, requires the consent of the employee, and if he refuses the offer to move with the organization, he may be dismissed under clause 9 of Art. 77 TK.

Temporary substitution, the performance of duties in the position of a temporarily absent employee, is also considered a transfer. The law classifies such a transfer as a production necessity. If an employee is entrusted with performing the duties of a temporarily absent employee without releasing him from his main job, then this will be a temporary combination of professions, and not a substitution. Substitution without the employee’s consent is limited to a month during the calendar year (Article 74 of the Labor Code).

Transfers are divided by term into permanent and temporary. A permanent transfer means that the change in the employment contract has occurred for an indefinite period and the previous place and terms of the contract are not preserved. During a temporary transfer, the previous place of work and terms of the contract are preserved, but another job is assigned for a certain (short) period, after which the previous working conditions are restored.

Permanent and temporary transfers, in turn, are also classified. A permanent change of place of work can be of three types: 1) transfer to another enterprise, institution, organization, at least in the same area; 2) transfer to another area, at least with the same production; 3) translation at the same enterprise, institution, organization.

Temporary transfer is classified according to the reasons for the transfer:

1) for production needs, including substitution (Article 74 of the Labor Code);

2) pregnant women and women with children under 1.5 years old for easier work;

3) for health reasons according to a medical report;

4) at the request of the military registration and enlistment office to undergo military training without interrupting work (from two to three shifts of work in one shift).

The first type does not require the employee’s consent and is mandatory for him, the last three types are mandatory for the administration.

With written consent, an employee can be transferred to a job requiring lower qualifications (Part 3 of Article 74 of the Labor Code).

Consent for transfer, either permanent or temporary, must be obtained in writing. But if this did not happen, and the employee voluntarily began performing other work, then such a transfer can be considered legal. If a transfer is obligatory for an employee due to operational necessity (if it is carried out in compliance with the law), refusal to transfer is considered a violation of labor discipline, and absenteeism is considered absenteeism.

Due to production necessity, the employer has the right to transfer an employee to another job without his consent for a period of up to one month in the same organization. In this case, remuneration is made according to the work performed, but not lower than the average earnings for his main job. Production necessity refers to exceptional, unforeseen cases in production operations. Their list is given in Art. 74 Labor Code: to prevent or eliminate a catastrophe, natural disaster, accident, accidents, downtime, loss or damage to production property, as well as to replace an absent employee. The law does not limit how many times a year an employee can be transferred for production reasons (except for cases of replacement). With this transfer, in certain emergency cases, an employee may work outside his specialty or qualifications.

For all types of transfer, other work should not be contraindicated for the employee due to health reasons. It is also prohibited to transfer women and minor workers to jobs prohibited for them.

If a transfer due to production necessity was carried out in compliance with the rules, and the employee did not return to another job without good reason, then this qualifies as absenteeism and the employee may be fired for absenteeism. If the rules of this transfer were violated, then absence from a new job cannot be considered absenteeism, and the employee is subject to reinstatement at his previous job.

The transfer of pregnant women and women with children under 1.5 years of age to easier work, while maintaining their average earnings from their previous work, is provided for in Art. 254 TK. According to medical reports, pregnant women are subject to reduced production standards, service standards, or are transferred to easier work. Until the issue of providing a pregnant woman with easier work and work that excludes the impact of unfavorable production factors is decided, the administration is obliged to release her from work while maintaining the average earnings for all working days missed because of this at the expense of the employer. Women with children under the age of 1.5 years, if it is impossible to perform their previous work, are transferred at their request to another job while maintaining their previous earnings (for example, if her work is harmful to the health of the child or the nursing mother herself).

For medical reasons, a temporary or permanent transfer with the employee’s consent to easier work is possible, which is mandatory for the administration. The medical report also indicates the period of such transfer. But during this transfer, the previous salary is retained only for the first two weeks, and then the employee receives according to the work performed, except in cases of labor injury due to the fault of the employer, when the average salary is maintained for the entire duration of the transfer to an easier job.

For some employees, labor legislation has established additional guarantees when transferring to another job (both permanent and temporary). Cannot be transferred to another job:

- members of trade union committees who are not exempt from production work, without the prior consent of the trade union body of which they are members, heads of trade union bodies in divisions of an enterprise, institution, organization without the consent of the trade union committee of the enterprise, institution, organization, and the heads of these trade union committees - without the consent of a higher body them associations of trade unions;

– deputies of representative bodies of power without the consent of the body of which they are deputies.

Only a permanent transfer is noted in the employee’s work book; a temporary transfer is not noted. If an employee is transferred in violation of the transfer rules, he can challenge it and the body considering this dispute will reinstate him at work with pay for forced absence.

A new type of transfer - secondment - is the transfer of a civil servant, which is possible with his consent in case of official necessity by sending him to another state body in his specialty to perform duties in a public position for up to two years.