By agreement of the parties, concluded in writing, an employee may be temporarily transferred to another job with the same employer for a period of up to one year, and in the case where such a transfer is carried out to replace a temporarily absent employee, whose place of work is retained in accordance with the law , - before this employee goes to work. If, at the end of the transfer period, the employee’s previous job is not provided, and he did not demand its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer loses force and the transfer is considered permanent.
In the event of a natural or man-made disaster, industrial accident, industrial accident, fire, flood, famine, earthquake, epidemic or epizootic, and in any exceptional cases threatening the life or normal living conditions of the entire population or part of it, the employee may be transferred without his consent for a period of up to one month to work not stipulated by the employment contract with the same employer in order to prevent these cases or eliminate their consequences.
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 is also permitted in cases of downtime (temporary suspension of work for reasons of an economic, technological, technical or organizational nature), the need to prevent destruction or damage to property or temporary replacement an absent employee, if downtime or the need to prevent destruction or damage to property or to replace a temporarily absent employee is caused by emergency circumstances specified in part two of this article. In this case, transfer to a job requiring lower qualifications is permitted only with the written consent of the employee.
When transfers are made in cases provided for in parts two and three of this article, the employee is paid according to the work performed, but not lower than the average earnings for the previous job.
Article 72.1
Article 72.2
Article 73
Commentary on Article 72.2 of the Labor Code of the Russian Federation
For the first time, this type of transfer is legally regulated as a temporary transfer by agreement of the parties. The agreement is concluded in writing. Such a transfer is concluded for a period of up to one year, and if the transfer is carried out to replace a temporarily absent employee, whose place of work is retained in accordance with the law, for a period not exceeding the period of absence of the specified employee. At the end of the period established by the agreement, the employee must be given his previous job. However, if such work is not provided to the employee (and the employee did not demand its provision and continues to work), the condition on the temporary nature of the transfer loses force and the transfer is considered permanent.
Without the consent of the employee, only his temporary transfer is allowed for a period of up to one month in the presence of circumstances that threaten the life or normal living conditions of the entire population or part of it, i.e. in cases where the assignment of other work not stipulated by the employment contract cannot be considered as forced labor (see Article 4 of the Labor Code and commentary to it).
The cases listed in the commented article can be classified as emergencies, and translation - in connection with production necessity (in the event of a natural or man-made disaster, industrial accident, industrial accident, fire, flood, famine, earthquake and in any exceptional cases that pose jeopardize the life or normal living conditions of the entire population or part of it). A temporary transfer is carried out to a job not stipulated by the employment contract with the same employer, either to prevent these cases or to eliminate their consequences.
In case of downtime, i.e. temporary suspension of work for reasons of an economic, technological, technical or organizational nature, as well as if it is necessary to prevent destruction or damage to property or to replace a temporarily absent employee, it is possible to transfer without the consent of the employee for a period of up to one month to work not stipulated by the employment contract with the same employer, however, provided that the downtime or the need to prevent destruction or damage to property or to replace an absent employee is caused by emergency circumstances (see Part 2 of Article 72.2 of the Labor Code). It should be borne in mind that when transferring to a job requiring lower qualifications (for example, reducing rank, grade, category, etc.), the employee’s written consent is required. This requirement, presumably, applies only to the cases specified in Part 3 of Art. 72.2.
Temporary transfers specified in parts 2 and 3 of the commented article are classified as mandatory for the employee, and his earnings are determined by the work performed, but not less than the average earnings at his previous job.
Article TCRF 72.2. Temporary transfer to another job
Commentary on Article 72.2
1. The general principle of stability of the labor relationship (see Articles 60, 72 and the commentary thereto) also applies to cases of temporary transfers to another job. This means that, as a rule, a change in the content of the labor function and (or) the place of employment of labor stipulated by the contract is carried out exclusively by agreement of the parties, concluded in writing (for the form of the agreement during translation, see paragraph 4 of the commentary to Article 72 of the Labor Code).
At the same time, the legislator establishes some additional mandatory rules related to ensuring the principle of stability of the labor relationship. By virtue of Part 1 of Art. 72.2 if, at the end of the transfer period, the employee’s previous job is not provided, and he did not demand its provision and continues to work, then the condition on the temporary nature of the transfer loses force and the transfer is considered permanent. Thus, the very fact that the employee is admitted to work after the date indicated in the transfer agreement as the end of the transfer period means that the parties have reached a new agreement that the new job is permanent for the employee. In relation to a transfer to replace a temporarily absent employee, such an agreement is presumed to apply to the case when this employee returns to work and at the same time the transferred employee is also not exempt from performing the transfer work.
It should be noted that this rule also applies to those cases where a change in the labor function is expressed in the assignment of work to an employee in a different position, specialty or profession without release from the previous job, i.e. in cases of combining professions, positions or expansion of the service area (see Article 60.2 of the Labor Code and commentary thereto).
Since in Part 1 of Art. 72.2 establishes the rules for temporary transfer to another job with the same employer; these rules do not apply to cases of temporary transfer of an employee to another employer. Consequently, in the latter case, the law does not require mandatory written execution of the translation agreement (although a written form is advisable); the terms of the translation, including the condition on its duration, are determined solely by agreement of the parties; Accordingly, the rule established by this article regarding the transformation of a temporary transfer into a permanent one does not apply. If there is a need for an employee to transfer to work for the employer at the place of transfer, such a transfer must be carried out according to the rules of dismissal in the order of transfer to another employer or by dismissing the employee at his own request with the subsequent conclusion of an employment contract with the new employer.
2. The employer has the right to transfer the employee to a job not stipulated by the employment contract to prevent extraordinary cases specified in Parts 2 and 3 of Art. 72.2, or eliminating their consequences. In this regard, the Supreme Court of the Russian Federation indicates (clause 17 of the Resolution of the Plenum of March 17, 2004 No. 2) that when applying Parts 2 and 3 of Art. 72.2 of the Code, which allows the temporary transfer of an employee to another job without his consent, courts should keep in mind that the obligation to prove the existence of circumstances with which the law connects the possibility of such a transfer rests with the employer.
Transfer to another job in these cases is regulated by federal law, therefore the employer’s right to carry out such a transfer, as well as the employee’s obligation to perform a new job, follows directly from the law, regardless of whether this is provided for as a condition of the employment contract. At the same time, work not stipulated by an employment contract means work that may be outside the scope of the labor function stipulated by the employment contract.
The transfer in question falls into the category of transfers carried out at the initiative of the employer (see paragraph 6 of the commentary to Article 72.1 of the Labor Code). An employee’s refusal to transfer is a disciplinary offense entailing disciplinary liability.
Since this non-contractual obligation is fraught with the emergence of the phenomenon of forced labor, the legislator surrounds its implementation with a number of non-contractual organizational and legal conditions.
Translation in accordance with Art. 72.2 of the Labor Code: a) possible in the presence of factual circumstances of an extraordinary nature; b) is temporary; c) can only be carried out with the same employer; d) allowed if the employee retains the right to work of a certain quality.
3. The list of cases of an extraordinary nature that are the basis for the transfer of an employee is given in Parts 2 and 3 of Art. 72.2 TK. If an employer transfers an employee under the pretext of production necessity in the absence of exceptional cases indicating a real need for such a transfer, it is considered illegal.
Judicial practice proceeds from the fact that the transfer in question is possible if the employer did not have the opportunity to otherwise prevent or eliminate those specified in Art. 72.2 reasons. Deficiencies in the organization of work cannot serve as a basis for such a transfer.
4. Translation in accordance with Art. 72.2 of the Labor Code is allowed for a period of no more than one month. Since the law limits only the deadline, but not the number of transfers, such a transfer can take place more than once, but each time there is an appropriate reason of an exceptional nature.
If the reason that led to the transfer in question continues for more than a month, the employee may be assigned to perform work outside the specified labor function or place of work (structural unit), subject to his consent.
5. In accordance with the current Code, the transfer in question is permitted exclusively with this employer. In this case, it does not matter that the circumstance that led to such a transfer may arise in another economic entity.
A temporary transfer to another employer to eliminate these circumstances is possible only with the consent of the transferred employee.
At the same time, it should be noted that the legislator does not in any way limit the possibility of transfer, due to the circumstances specified in the commented article, to a unit of the employer’s organization located in another location, including to a separate structural unit.
6. When transferring in accordance with Art. 72.2 of the Labor Code, an employee cannot be assigned work that is contraindicated for him due to health reasons.
Assigning a job to a transferred employee of a lower qualification than that stipulated by the employment contract is possible only with the written consent of the employee.
7. A transfer to replace a temporarily absent employee is a special case of temporary transfers of the type under consideration. Unlike the previously existing procedure, it is currently carried out on the basis of the general rules established for temporary transfers of Art. 72.2 TK.
8. Transfer to another job in the cases specified in Art. 72.2 of the Labor Code, is formalized by an order (instruction) of the employer, which must indicate the basis and term of the transfer, the work assigned to the employee and the terms of payment (for the work performed, but not lower than the average earnings for the previous job).
9. The employer’s order for a transfer is mandatory for the employee, and an unjustified refusal to do so is a disciplinary offense entailing disciplinary liability.
In the event that an employee does not go to work or goes to his previous workplace, such actions should be considered as absenteeism. If an employee enters a new workplace, refusing to perform the corresponding work, such actions should be interpreted as a continuing disciplinary offense, for which several disciplinary sanctions may be announced, including dismissal for repeated failure to fulfill job duties (clause 5 of Article 81 of the Labor Code) .
However, it should be taken into account that, by virtue of para. 5 tbsp. 219, part 7 art. 220 of the Labor Code, an employee cannot be subject to disciplinary action for refusing to perform work in the event of a danger to his life and health due to violation of labor protection requirements, except in cases provided for by federal laws, until such danger is eliminated or from performing heavy work and work with hazardous and (or) dangerous working conditions not provided for in the employment contract. Since the Code does not contain rules prohibiting an employee from exercising this right even when the performance of such work is caused by a transfer on the grounds specified in Art. 72.2 of the Code, the employee’s refusal to temporarily transfer to another job in accordance with Art. 72.2 of the Code for the above reasons is justified (clause 19 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).
Comments to the Labor Code of the Russian Federation
Publishing House "Gorodets", 2007
Source: SPS Consultant
Article 72.2. “Labor Code of the Russian Federation” dated December 30, 2001 N 197-FZ (as amended on December 29, 2020)
1. Article 72.2 is specifically devoted to temporary transfer to another job. It provides for the possibility of temporary transfer to another job by agreement of the parties (Part 1) and at the initiative of the employer without the consent of the employee in cases provided for by law (Parts 2, 3).
2. In accordance with Part 1 of the commented article, by agreement of the parties, concluded in writing, an employee may be temporarily transferred to another job with the same employer. The law does not name specific grounds on which such a transfer is allowed, and therefore it is possible for any reason, incl. both for a vacant position (place of work) with a given employer, and to replace a temporarily absent employee within the period established by law. As a general rule, this period should not exceed one year. An exception is established for cases of transfer to another job to replace a temporarily absent employee, who, in accordance with the law, retains his place of work. In this case, the transfer period may be more than one year. It depends on the time the replaced employee returns to work.
However, within the one-year period established by law, the parties must determine a specific period during which the employee will perform work not stipulated at the conclusion of the employment contract.
It should be noted that in practice this rule is not always observed. There are often cases when the following entry is made in an order for transfer to another job: “transfer to a position ... for a period of up to one year.” This practice cannot be considered legal, because it does not comply with Part 1 of Art. 72.2, which directly states the end of the transfer period. Moreover, it places the employee in a very uncertain position for a long period.
Upon expiration of the period of temporary transfer to another job determined by the parties, the employer may, and at the request of the employee is obliged to provide him with the previous job. However, if the temporary transfer period has expired, and the employee does not insist on providing the previous job and continues to work, then the condition on the temporary nature of the transfer loses force. In this case, work in the position (profession, specialty) to which the employee was temporarily transferred is considered permanent for him and the employer does not have the right to transfer him to his previous or another job without the employee’s consent.
3. A temporary transfer to another job to replace an absent employee should be distinguished from the performance by an employee, on behalf of the employer, of the duties of a temporarily absent employee, along with work stipulated by an employment contract. If a temporary transfer to another job is allowed both for a vacant position (place of work) and to replace a temporarily absent employee whose position (place of work) is retained, then the employee’s performance of the duties of a temporarily absent employee without release from his main duties is allowed only for replacement an employee whose position (place of work) is retained (for example, during a business trip, vacation, temporary disability). The performance by an employee, on behalf of the employer, of the duties of a temporarily absent employee, along with the work stipulated by the employment contract, in contrast to a temporary transfer to another job, is not limited by any period. This period is determined by agreement of the parties. An agreement between the parties on a temporary transfer to another job cannot be terminated early unilaterally by the employee or the employer, as is the case when the employee, along with his work, performs the duties of a temporarily absent employee (see commentary to Article 60.2). However, this does not exclude the employee’s right to terminate the employment contract with the employer at his own request in accordance with the rules established by Art. 80 TK (see commentary to it).
4. Part 2 of the commented article provides the grounds on which the employer has the right to temporarily transfer an employee to another job not stipulated by the employment contract, without his consent. The law does not establish an exhaustive list of such grounds, but clearly defines their nature: these are exceptional cases that threaten the life or normal living conditions of the entire population or part of it. These include, in particular, natural or man-made disasters, industrial accidents, accidents, floods, and earthquakes.
Only in the presence of the specified emergency circumstances is it possible to temporarily transfer an employee without his consent to another job and in case of downtime, which is understood as a temporary suspension of work for reasons of an economic, technological, technical or organizational nature, as well as if it is necessary to prevent destruction or damage to property or to replacing an absent employee (Part 3 of Article 72.2). In other words, a temporary transfer of an employee without his consent to a job not stipulated by an employment contract can be considered justified only if it is necessary due to emergency circumstances that threaten the life or normal living conditions of the entire population or part of it. If the need for a temporary transfer of an employee to another job is caused, for example, by reasons such as equipment breakdown, untimely delivery of raw materials, and this is not caused by emergency circumstances provided for in Part 2 of the commented article, then such a transfer is allowed only by agreement of the parties.
At the same time, as explained in the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2, when applying Parts 2 and 3 of Art. 72.2 of the Labor Code, which allows the temporary transfer of an employee to another job without his consent, courts should keep in mind that the obligation to prove the existence of circumstances with which the law connects the possibility of such a transfer rests with the employer (clause 17).
5. The duration of one (each) transfer to another job without the employee’s consent in cases where such a transfer is necessary due to emergency circumstances threatening the life or normal living conditions of the population should not exceed one month. However, such a translation may be repeated. This rule also applies to cases of temporary transfer to another job to replace an absent employee, i.e. transfer to another job to replace an absent employee due to emergency circumstances is not limited to one month during the calendar year.
The job to which the employee is transferred due to the above circumstances (including to replace a temporarily absent employee) must correspond to his qualifications. If in this situation a transfer to another job requiring lower qualifications is necessary, then such a transfer is permitted only with the written consent of the employee.
6. Temporary transfer of an employee to another job in all cases provided for in Art. 72.2, is allowed only with the same employer with whom he has an employment relationship. Moreover, when transferring an employee to another job without his consent, i.e. in cases provided for in Parts 2 and 3 of Art. 72.2, wages must be paid according to the work performed, but not lower than the average earnings for the previous job.
In all cases, transfer to another job that is contraindicated for the employee for health reasons is unacceptable.
7. Article 72.2 gives the employer the unconditional right to transfer employees without their consent to work not stipulated by the employment contract in exceptional cases that threaten the life or normal living conditions of the population. In this regard, the employee cannot refuse such a transfer if it is carried out in accordance with established requirements and the employee does not have valid reasons for refusing the transfer.
Refusal to perform work during a transfer carried out in compliance with the law is recognized as a violation of labor discipline, and absence from work is considered absenteeism.
However, it should be taken into account that by virtue of para. 5 tbsp. 219, part 7 art. 220 of the Labor Code, an employee cannot be subject to disciplinary action for refusing to perform work in the event of a danger to his life and health due to violation of labor protection requirements, except in cases provided for by federal laws, until such danger is eliminated or from performing heavy work and work with hazardous and (or) dangerous working conditions not provided for in the employment contract. Since the Labor Code does not contain rules prohibiting an employee from exercising this right even when the performance of such work is caused by a transfer due to emergency circumstances, the employee’s refusal to temporarily transfer to another job in accordance with Art. 72.2 for the above reasons is justified (see paragraph 19 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).
ORLOVSKY Y.P., CHIKANOVA L.A., NURTDINOVA A.F., KORSHUNOVA T.YU., SEREGINA L.V., GAVRILINA A.K., BOCHARNIKOVA M.A., VINOGRADOVA Z.D.
Rep. ed. Yu.P. Orlovsky “COMMENTARY ON THE LABOR CODE OF THE RUSSIAN FEDERATION”, 6th ed.
year 2014
