The structure of all government institutions has its own divisions, departments, that is, structural units. And most of them have separate divisions - branches and representative offices, including in other cities. And sometimes employers need to transfer employees from one department to another, from the head office to a branch, etc. In some cases, for example, when staffing is reduced, the employer is obliged to offer the employee a vacant position from those available both directly in the organization and in the branch. In the article we will look at how to transfer an employee to another structural unit, including a separate one and located in a different area.
The concept of a structural unit
First, let's figure out what a structural unit of an organization is. Neither labor nor civil legislation provides an “official” definition. In the generally accepted sense, a structural unit of an organization is its officially designated part that performs certain tasks established by the organization.
At the same time, there is a term “separate division”. To such divisions of Art. 55 of the Civil Code of the Russian Federation includes branches and representative offices. A representative office is a separate division of a legal entity, located outside its location, which represents the interests of the legal entity and protects them. A branch is a separate division of a legal entity located outside its location and performing all or part of its functions, including the functions of a representative office.
Representative offices and branches are not legal entities. They are endowed with property by the legal entity that created them and act on the basis of the provisions approved by it.
By virtue of clause 16 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as Resolution of the Armed Forces of the Russian Federation No. 2), branches and representative offices belong to the structural divisions of the organization. These are also other structures of the organization - its departments, services, workshops, sections, etc. Each structural unit has its own name and is reflected in the organization’s staffing table.
Accordingly, the organization has internal structural units (sections, departments) and there may be separate structural units (branches and representative offices), which can be located either in the same area with the employer or in another.
The Labor Code also mentions other separate divisions that are not branches and representative offices. And here we turn to tax legislation. A separate division of an organization is any division territorially isolated from it, at the location of which stationary workplaces are equipped. Recognition of a separate division of an organization as such is carried out regardless of whether its creation is reflected or not reflected in the constituent or other organizational and administrative documents of the organization, and on the powers vested in the specified division. The territorial isolation of a unit from an organization is determined by an address that differs from the address of this organization.
Constant
A permanent transfer of an employee without his consent is impossible. This type is associated with a change in the actual place of performance of functionality, salary, and powers. Occurs when:
- the wishes of both parties;
- written contract.
For a temporary appointment to become permanent, the following conditions must be met:
- the transfer period has expired;
- the employee’s previous position was not provided;
- the employee did not demand his previous position;
- the employee continues to work.
With the simultaneous implementation of these conditions, the transition to another position loses its temporary nature and becomes permanent. Now the employer does not have the right to transfer an employee to his previous job without obtaining his consent.
ConsultantPlus experts examined whether it is possible to transfer an employee to another position corresponding to his qualifications due to the epidemiological situation due to coronavirus, and if he refuses, to fire him. Use these instructions for free.
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Place of work in the employment contract
Speaking about structural units, it is necessary to decide on such a condition of the employment contract as the place of work. In accordance with Art. 57 of the Labor Code of the Russian Federation, the employment contract must indicate the place of work, and in the case when an employee is hired to work in a branch, representative office or other separate structural unit of the organization located in another area, the place of work indicating the separate unit and its location.
It is not specified what is meant by the term “place of work”. Therefore, someone indicates the name of the organization, someone a city or other locality, and someone the exact address.
