Kinds
The temporary transfer of an employee in case of production necessity is regulated by Article 72.2 of the Labor Code of the Russian Federation.
Based on the provisions of the current labor code, we can roughly distinguish three types of temporary transfers .
First type : to eliminate the consequences of disasters, accidents and other emergencies (fire, flood, explosion and others), if the consequences of such an event threaten the normal living conditions of a population group. Transfer is allowed for a period of up to one month . Please note two features of this translation:
- it is used only in emergency situations , when delay can lead to serious consequences for citizens;
- the law does not require obtaining the employee’s consent to such a transfer due to the above circumstances. Therefore, if a person refuses to perform the work assigned to him, this will be considered absenteeism.
The second type: transfer to other areas in case of downtime or to prevent the destruction of material assets or their damage.
The term “downtime” means a temporary absence of work in an organization for a certain circle of employees due to objective reasons - there are no raw materials, the necessary tools, there are difficulties with the sale of finished products, and so on.
It is always necessary to obtain the employee’s consent for a temporary transfer of this type, however, there are cases when consent is not required:
- if the named events were caused by natural disasters or man-made disasters;
- if the transfer involves work in a higher position or an equivalent position.
Third type: temporary transfer to another position until the main employee leaves or, in other words, temporary performance of other work for the same employer (up to one year) when replacing an absent employee for the period until he begins to perform his duties again (for example, for a while maternity leave). In this case, it is necessary to obtain the consent of the transferred employee.
Step-by-step procedure for temporarily transferring an employee to another job
TEMPORARY TRANSFER: SAMPLE STEP-BY-STEP PROCEDURE (GENERAL)
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According to Part 1 of Art. 72.2 Labor Code of the Russian Federation:
“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 position is retained in accordance with the law work - until this employee goes to work."
1. One of the parties (employee or employer) comes up with the initiative to temporarily transfer the employee to another job.
The initiative can be “oral”. And the parties to the negotiations come to an agreement on a temporary transfer.
The idea of a temporary transfer may also be in writing, but this is not necessary.
1.1. If the employee himself comes up with the initiative to temporarily transfer to another job, then he can write an application for his temporary transfer to another job (position). The employee’s application is registered in the manner established by the employer, for example, in the employee applications register.
1.2. If the employer comes up with the initiative to temporarily transfer an employee to another job, then he can make a written offer to the employee for a temporary transfer to another job (position). The proposal is made in two copies. The proposal is registered in the manner established by the employer, for example, in the register of notifications and proposals to employees. One copy of it is given to the employee. On the second copy (the copy that remains with the employer), the employee writes that he has read the proposal, received one copy of it, puts the date of receipt, and signs. If the employee agrees to the transfer, then he can put an “agreement note” on the employer’s proposal or write a statement of consent to the transfer. The employee’s application is registered in the manner established by the employer, for example, in the employee applications register.
2. Familiarization of the employee with his job description
(for a new position), other local regulatory legal acts directly related to his new work activity.
The procedure for familiarizing yourself with local regulations is not defined by the code; in practice, there are various options:
• familiarization sheets are attached to the local regulatory act, on which employees put signatures confirming familiarization and the date of familiarization (such sheets are stitched together with the local regulatory act),
• maintaining logs of familiarization with local regulations, in which employees put signatures confirming familiarization and indicate the dates of familiarization.
A certain procedure for familiarizing yourself with local regulations may be enshrined in the act itself. Find out your employer's procedures for familiarizing employees with local regulations before you begin introducing them to the employee.
3. Signing a written translation agreement
between the employee and the employer (to the employment contract) and, if there are grounds, signing an agreement on full financial responsibility.
The agreement and contract are drawn up in two copies (one for each party), unless more copies are provided for a given employer.
4. Registration of the transfer agreement
and an agreement on full financial liability in the manner established by the employer. For example, an agreement can be registered in the register of agreements for employment contracts with employees, and an agreement on full financial liability - in the journal of registration of agreements on full financial liability with employees.
5. Handing the employee his copy of the transfer agreement.
The employee’s receipt of a copy of the agreement should be confirmed by the employee’s signature on the copy of the agreement, which remains in the custody of the employer. We recommend that you put the phrase “I have received a copy of the agreement” before your signature.
If an agreement on full financial responsibility is signed with the employee, then one copy of it is also given to the employee.
6. Issuance of an order (instruction) on the transfer of an employee to another job.
7. Registration of this order (instruction)
in the order established by the employer, for example, in the log of orders (instructions).
8. Familiarization of the employee with the order (instruction) against signature.
Notes.
* Information about temporary transfer is not entered into the employee’s work book. Therefore, it is recommended to resolve with the employee the issue of issuing him a copy of the temporary transfer order, duly certified, so that the employee can in the future, if necessary, confirm that he performed this work.
** The issue of entering information about a temporary transfer into a personal card is controversial in practice.
*** Upon expiration of the temporary transfer period, an order may be issued to terminate the temporary transfer period.
We recommend:
- The book “HR Course. Self-instruction manual" Vol. 1 >>
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- Database of 140 step-by-step procedures in the ICS online reference database (base for subscribers of the HR Practitioner magazine) >>
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Target
Having familiarized yourself with the types of temporary transfers, you can already imagine a typical situation in which this legal instrument can be used: in a certain area of the organization’s activities, there is an acute shortage of personnel and the employer does not have the opportunity to invite new employees to solve this problem.
To overcome this situation, employees are transferred from less stressful areas that were performing other work. Thus, transferring an employee to another position within the organization temporarily covers the shortage of personnel in a certain area of the company’s activities.
Ways to solve the problem
Often employers have the intention of transferring an employee to another place. Lack of consent on the part of the employee confronts his superiors with the need to find alternative ways to carry out the planned relocation within the framework of labor legislation.
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Ways out of the situation:
- assigning a higher salary to an employee in a new place. In this case, with a high probability, after a month of work, the employee will not require a return to his previous place, since for him the factor of increasing the level of income received will be significant. In such a case, the transfer will automatically be recognized as permanent.
- monthly transfer. An employer can transfer an employee from position to position an unlimited number of times within one year. Each transfer must be made for a period not exceeding a month. In this case, the movements will be considered temporary and the employee’s consent will not be required. It should be borne in mind that this method is not used if it is necessary to replace an absent employee. Such a measure is allowed only once a year.
Decor
Changing a job function for a certain period requires a certain procedure for registration.
A similar algorithm is applicable when transferring temporary employee to a temporary position.
You should start by notifying the employee that it is planned to assign him another job as a temporary transfer.
This may be an order or instruction that will set out the circumstances that served as the reason for the upcoming transfer of the employee to another job (read about how to draw up an order to transfer an employee to another position, job or place).
It is recommended to appoint persons responsible for processing the transfer and indicate the date by which all formalities must be resolved.
The employee agrees on paper with the upcoming transfer. For example, in the form of an application addressed to the director.
An additional agreement to the employment contract is concluded, where the parties will specify the terms of the temporary transfer, the name of the new position, the department and the amount of remuneration.
The transfer procedure is completed by issuing an order in form T-5, which the employee must be familiar with before the day of the temporary transfer .
Depending on who makes the decision to transfer and for what reason, the need to obtain consent is determined.
If the law does not require the employee’s consent, then the entire registration will consist of only the last stage. For example, in case of production necessity .
Production necessity is a situation in an organization caused by emergency events, the occurrence of which is difficult to predict: disaster, accident, fire, epidemic and others.
In a situation where a temporary transfer is carried out to replace an employee who is on maternity leave, the documents cannot specify the exact end date of such a transfer .
In fact, an employee “on maternity leave” can, at his own request , resume his duties, and then the replacement employee should be returned to his previous place of work.
In this case, the employer needs to show maximum flexibility to avoid violating the rights of each employee.
We suggest that you familiarize yourself in more detail with the transfer procedure, in particular at the initiative of the employee and the director, to part-time work, from part-time work to the main place of work and to light work for medical reasons.
The difference between translation and displacement
We have decided on the above concept. Now let’s look at the accompanying term “movement”. This is also a transfer, but in its case there will be no contradictions with the current employment contract, both the employee’s qualifications and his specialty and position are preserved. There is no need to obtain his consent. So, it will be:
- when changing jobs at the same company,
- when changing a structural unit within the same territory where he worked,
- when performing their own functions on a new mechanism, different from the old one.
We conclude that translation and movement differ in aggregate characteristics:
- “old” and “new” labor formats,
- territorial location of the “former” and “new” place of work,
- the actual presence of the employee at the “former” and “new” place of work.
Important! There are often cases when movement seems to correspond to its basic characteristics, but can have an impact on the health of the worker. Then this is illegal, except in situations where this is stipulated in advance in the employment contract.
Entry into the work book
The law does not provide for the inclusion in work books of notes about cases of transfers of this kind.
A situation may arise when a person worked, for example, as a manager as a temporary transfer, and he needs to confirm this fact for further employment.
To confirm his experience, the employee can use a copy of the order for his transfer or an additional agreement to the contract.
Situations often arise when an employee remains to work in a new place even after the end of the temporary transfer period. It turns out that the employee will actually work in a new position from one date, and the information in the work book will be entered when the order for permanent transfer is issued. Some HR specialists deal with this situation as follows:
- in column 3, where the unit and position are indicated, they also write the date from which the temporary transfer was made;
- in column 4, reference is made to both orders of the director of the legal entity, approving both temporary and permanent transfer.
Payment upon transfer based on production needs
The very concept in Art. 74 is not disclosed. However, there is a list of cases of production necessity.
This list must be considered as exhaustive, since the law excludes the words “and in other exceptional cases,” as was previously the case. Such cases include: – preventing a catastrophe, industrial accident or eliminating the consequences of a catastrophe, accident or natural disaster; – accident prevention; – prevention of downtime (temporary suspension of work for reasons of economic, technological, technical or organizational nature); – prevention of destruction or damage to property; – replacing an absent employee. Transfer in case of production necessity is possible only in the same organization.
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Return to previous responsibilities
A temporary transfer, like everything non-permanent, involves the return of the employee to his normal work function .
Most often, the employer issues an order describing which employee, from which date and in which department, will continue to work after the end of the transfer period.
But the absence of such a local document will not prevent the employee from returning to his previous position. The fact is that the director’s order, according to which the employee was transferred, had already lost force . Consequently, the parties return to their previous position.
The employer is obliged to provide the opportunity to work in his specialty to an employee who was previously transferred to another job for a certain period.
The manager should always remember that a temporary transfer is an emergency measure . This method of solving personnel and production problems is best used only in extreme cases . In the end, each person must work in his own position that corresponds to his knowledge and qualifications.
What is production necessity
Organizational management now uses the phrase “production necessity” too often to justify unlawful actions on their part when transferring an employee.
What, according to the legislation of the Russian Federation, is a production necessity?
Production necessity should be considered the occurrence of force majeure circumstances that could not be foreseen in advance.
In Art. 74 of the Labor Code of the Russian Federation provides a list of cases of production necessity:
- prevention of accidents at work;
- elimination of fires, accidents and man-made disasters;
- eliminating the consequences of natural disasters: floods, famines, earthquakes and other natural phenomena;
- elimination of epidemics or epizootics that threaten the life or living conditions of the population or part of it;
- prevention of downtime caused by economic, technological, technical or organizational processes;
- destruction or damage to the organization's property;
- replacing an absent employee.
The presence of these emergency circumstances is necessary in all cases of temporary transfer to another job due to production needs, which is confirmed by the decision of the Supreme Court of the Russian Federation.
PRODUCTION NEED is
institution, organization (but in the same area) with wages for the work performed (but not lower than the average earnings for the previous job). Transfer due to PRODUCTION NECESSARY is not allowed to prevent or eliminate a natural disaster, industrial accident or immediately eliminate their consequences; to prevent accidents, downtime, loss or damage to state or public property and in other exceptional cases, as well as to replace an absent worker or employee.
Thus, the employer’s order to perform work in a different profession, specialty, position, or qualification than that which was determined upon hiring is in all cases recognized as a transfer to another job. Without the consent of the employee, a temporary transfer to another job is allowed only in cases provided for by law: in case of production necessity; when idle; if necessary, replacing a temporarily absent employee. In case of production necessity, the employer has the right to transfer the employee to a job not stipulated by the employment contract (in another profession, specialty, qualification, position), as well as to work for another employer. Now we need to find out whether there is actually a production need.
