Many employers and their subordinates are faced with the phenomenon of transfer to another job. As a result, there are various legal issues, in particular, regarding the difference between translation and displacement. In addition, there are two types of transfer to another job - temporary and permanent, which differ from each other.

The concept of transfer to another job

According to the definition in the Labor Code, a transfer from one job to another is a change in the work functions of an employee. At the same time, the employee continues to perform labor activities for the same employer, in some cases he may be transferred to another locality. Such changes may affect not only individual employees, but the whole structural unit.

What happens to an employment contract during a transfer?

Unlike a transfer, a transfer can only be made with the written consent of the employee. In addition, the transfer can be made to another employer and not only with the consent of the employee, but also at his request. In this case, the employment relationship with the previous boss is terminated, and an agreement is concluded with the new one.

The most complicated procedure provided for by law in the course of translation is the amendment of the employment contract. However, the employer must have good reasons for making such a decision. Only in extreme necessity can a translation be associated with a change in both technological and organizational conditions.

Notification of the transfer of an employee to another job is carried out in writing for two months. In the event that the employee refuses the proposed conditions, the employer is obliged to make him a new offer in writing. It can be any job related to the profile this employee, including the underpaid.

Features of temporary translation

Temporary transfer carried out for up to one year. If the need is related to a temporary replacement of an employee, then the transfer continues until the absent employee leaves. If the term for such a transfer has expired, and the employee was not provided with his main place, this employee is assigned to this workplace.

The transfer of an employee without his consent is prohibited if the new workplace contraindicated due to medical opinion. In this case, the employer is obliged to provide such activities that correspond to the state of health of the employee. If the transfer of an employee to another job at the initiative of the employer is carried out for a short period (up to four months), and the employee refuses this transfer, he is suspended from work and not paid a salary. If the period exceeds four months, then in case of refusal, the employment relationship with the employee is terminated.

A temporary transfer may be made due to various force majeure circumstances, such as:

• man-made / natural disasters)
• fire)
• production accident)
• accident)
• flood)
• epidemic.

In such cases, a transfer to another job is often carried out at the initiative of the employer. The term of such a transfer may not exceed one month. In addition to the above reasons, there may be other factors in which it is allowed to make a transfer without the written consent of the employee. This is a suspension of production associated with technological, organizational or economic situation. However, even in this case, if an employee is transferred to a job with a lower qualification than the current one, his written consent is required.

Translation for health reasons

This possibility is considered depending on the specific situation. In accordance with Russian law, the employer is obliged to provide the employee with a new place that corresponds to his state of health, if this employee submits a medical certificate. In case of refusal of such activity, he will be suspended temporarily from work with the preservation of his main workplace. Payment of compensation during his absence from the workplace is not provided, except for some cases provided for by private contracts or agreements.

Pregnant women are transferred to another place of work, where adverse factors that may affect them will be excluded. The average income remains the same. In addition, a pregnant employee of the enterprise may remain in the same place, but with a significantly reduced production rate. Also, until she is provided with a new workplace without a negative impact on the body, she can be released from work, and average earnings will be paid for all missed days.

Differences between a transfer to another job and a business trip

The concept and types of transfer to another job do not include a business trip. A business trip is a trip to a place remote from the enterprise for a certain period of time in order to perform an official assignment. In accordance with the law Russian Federation business trips are obligatory, refusal of a trip, if it is unreasonable, may be regarded as disciplinary offense.

In addition, one of the main differences between a business trip and a transfer is the distance, since a temporary transfer can only be carried out in a certain area. Also, during a business trip, the employee performs a specific task assigned to him, while the transfer involves the assignment of any duties related to professional activity this employee.

Another difference between these concepts is that when transferring to another job, the employee is subject to local regulations. The business trip does not provide for their effect in relation to this employee when performing an official assignment, except in cases where this is provided for by the employment contract.

Features of transfer to another locality

In the event of an employee being transferred to another locality, he must compensate for the costs, namely:

• employee travel cost
• travel expenses for his family
• total cost of baggage transportation.

Also, the employer must bear all the costs associated with the arrangement of the employee in a new place. More specifically, this issue is considered in each individual case when drawing up an agreement between an employee and an employer.

If the employee refuses to be transferred to another locality, the employer has the right to terminate the employment relationship with him. However, a situation may arise in which the employee is transferred to a branch located in another locality, and the employer does not move to this locality. In this case, the refusal of the employee to transfer is not a basis for his dismissal.

When a company is reorganized and employees are transferred, as well as when staff is reduced, a particular employee does not have any advantages of remaining in the enterprise. The manager independently decides which employees to give preference to, while in priority are those who have a higher level of qualification and productivity.

With the same productivity during the transfer, the employer leaves the employee who has two or more disabled family members. Preference is also given to employees who do not have people in the family who are able to earn money on their own. The collective agreement of each enterprise considers its own conditions for leaving employees during relocation and staff reduction.

Translation by agreement of the parties

The employer may carry out a temporary transfer to another job by agreement of the parties, if both parties have reached agreement on this issue. Both the employer and the employee can make a proposal to transfer. At the same time, the labor legislation does not provide for the need for an employee to submit a written request for a temporary transfer. Although in practice such documents are drawn up as the basis for a written agreement between the parties.

If such an application is made, it must be drawn up in the form accepted within the enterprise. The document is registered in the journal of applications submitted by employees and sent to management for a decision. In addition to the head of the enterprise, only persons authorized by the management can make decisions on the transfer of employees.

After the decision on the transfer is made, the head of the enterprise or an authorized person draws up a resolution on the submitted application. If the decision is positive, then at the next stage an agreement is drawn up in addition to the main employment contract, which discusses the conditions for a temporary transfer.

Also, the concept of transfer to another job includes the proposal of the employer. The manager must issue an offer to the employee, which indicates such transfer conditions as:

• term)
• list of labor functions)
• the size of the salary.

After receiving such an offer, the employee personally puts a mark that he agrees to the transfer. Mostly this procedure similar to the admission process new job. The translation process includes various organizational issues, including a medical examination.

Medical examination during transfer

Temporary transfer of an employee to another job at the initiative of the employer or at the request of the employee includes a mandatory medical examination. The first step is to issue an employee referral. It must indicate the reasons for this referral, the term of the transfer, as well as a list of substances hazardous to health with which the transferred employee will work.

The legislation of the Russian Federation does not establish a specific form of referral for a medical examination. It is usually written on company letterhead. The document is signed by the director of the organization or any authorized person, for example, a personnel officer.

The examination is usually carried out in medical organization with which the employer has entered into an agreement. It is necessary to conduct a survey within a month from the date of the employee's request or notification of the transfer. After a medical examination, the employee is issued a conclusion, according to which he is allowed / prohibited from working in certain conditions potentially hazardous to health. The conclusion must contain the signature of the attending physician, as well as the seal of the medical institution in which the examination was carried out.

In the event that the employee is not recognized as fit for this work, and activities with certain substances are contraindicated for him, a copy of the conclusion is sent to the employer within three days. The examinee is given the original document. Further processing is terminated, and the employee returns to his original duties.

Acquaintance with the documentation

The Labor Code provides for an employee's familiarization period with the documentation before signing it. Temporary transfer to another job at the initiative of the employer is carried out under the signature after familiarization of the transferred employee with such documents as the collective agreement and local regulations:

• internal labor regulations)
• safety regulations)
• job description.

This procedure is provided only if the labor functions of this employee will differ significantly from the previous ones. Also, his labor activity may be associated with other conditions specified in these documents.

This procedure is similar to that which is carried out during recruitment. At the same time, neither the form nor the procedure for familiarization is provided for by Russian law. After this procedure, the employee must put a note that he is familiar with the list of acts and other documents. For this purpose, a separate familiarization log is created at the enterprise.

Supplementary agreement

When transferring an employee, an additional agreement is drawn up to the main employment contract. There is no specific unified form of this document. Therefore, each enterprise has its own form, according to which an agreement is drawn up in two copies.

The following details should be specified in the supplementary agreement:

• view this document}
• place of origin)
• details of both parties (company name, address, telephone number, employee's passport details).

The document itself indicates the position of the employee, working conditions, including the amount of salary, the transfer period, if it is temporary. An additional agreement is not drawn up if the employee refused to be transferred to work in another locality together with the employer.

One of the types of temporary transfer is a transfer due to the absence of a substitute worker. The reason for his absence may be temporary disability, vacation, business trip. In this case, the additional agreement provides for the execution of a temporary transfer for an indefinite period (more than a year). With this design, the document does not indicate the end date of the transfer, but uses the following wording: "until the replaced / absent employee leaves."

The transfer agreement is signed by both parties. The details indicate the position, surname and initials of the employer, the date of the agreement, as well as the full name of the employee. After registration in the journal of documents, one of the copies of the agreement is transferred to the employee, the second remains with the manager. At the same time, the employee puts a mark that he has received an additional agreement to the contract.

Transfer Order

After the agreement between the parties additional agreement the employer issues an order or order to transfer a subordinate. Such documentation is drawn up according to the forms T-5 and T-5a specified by law. The order must contain such information as the name of the former and new place of work, as well as the size of the new wages. If the transfer to work in another locality together with the employer is temporary, then the order also indicates the start and end dates labor activity employee.

A temporary transfer order may not contain a final date. In this case, you must specify the event in connection with which the period of such a transfer will end. The order is issued on the basis of an additional agreement concluded between the employee and the director of the enterprise. The document is signed by the head or any authorized person.

After drawing up and registering the order, the employee must familiarize himself with it in the same manner as with the additional agreement - under signature. All orders related to transfers to another job are stored separately from orders related to the main work activity of employees. At the same time, it should be remembered that information about a temporary transfer is not entered into the work book.

briefing

Russian labor legislation provides for such a procedure as instructing transferred workers to a new place. It is carried out by the employer or an authorized employee. Records about him and the signatures of all employees are contained in a separate registration book. The records must contain the date of the briefing, as well as the transcript of the signatures of the employees.

At the new place where the employee is transferred, there may be special conditions work and safety. In this case, the employee must undergo additional training - this must occur within a month from the date of his transfer. After the training, a commission is assembled, which checks the theoretical and practical knowledge of the employee. The results of the examination check are recorded in the protocol. If the employee successfully passes the test, he is given a document giving the right to independent work in specific conditions.

Information about the transfer in the work book

If carried out permanent transfer on the lower paying job at the initiative of the employer, information about this is entered in the work book. Normative acts do not determine the procedure for entering these data if the term of the temporary transfer has expired and it has been re-registered as permanent.

The information in this situation is recommended to be recorded as follows. After putting down the next serial number and the date of entering the data (in no case, not the date of the transfer, since at that moment it was temporary), information about the transfer itself is recorded in the column “Information about the work”. After that, indicate the document on the basis of which the transfer was made.

As in other cases, the employee must read this entry under the signature. It must be put in a personal card.

Personal card of the employee and accounting information in the time sheet

Upon hiring, for each employee in personnel service create a personal card. The legislation establishes a single form of this document - T-2. This document contains all the data about the employee, including his transfer.

Information about the transfer is entered in the third column, after which it is necessary to familiarize the employee with this entry. All entries, as in the work book, are made on the basis of documents such as an order or order.

Also, in the case of a transfer, the employer is obliged to continue to keep records of the time that the transferred employee works. For this procedure, a time sheet of the form T-12 or T-13 is used.

Translation transformation

It is necessary to separately consider such an issue as the transformation of a temporary transfer into a permanent one. Many cases have been recorded when none of the parties that entered into an additional agreement demanded its termination due to the fact that the term for the temporary transfer had expired. As a result, such an agreement is considered valid for an indefinite period. Also, the employee is assigned to this place if, after the expiration of the period during which he must notify the dismissal in connection with the completion of the temporary transfer, he does not notify the management about this.

Thus, the parties may not agree on any changes if both the employee and the employer are satisfied with the current situation. The transfer is considered permanent from the day following the expiration date of the temporary transfer. As a result of the transformation, the conditions in the concluded agreement automatically change.

On the day when the transfer becomes permanent, it is necessary to issue new order, as well as make an appropriate entry in the work book of the employee. But most often, the employer, in case of preventing such a transformation, proceeds in advance to formalize the return of the employee to his former place of employment. There are cases when, after the employer refuses to register this employee as a permanently transferred employee, this employee applies to certain authorities with a request to resolve this issue.

Gaps in labor law

When making a translation, problems may arise due to the imperfection of the current legislation. For example, the law does not provide for the possibility of early termination labor relations formatted as a translation.

1. So, an employee who is offered by the employer to return to his previous place may refuse. At the same time, the manager cannot change the employment contract and the additional agreement for the purpose of return. This may be due not only to the inadmissibility of unlawful changes in conditions without the knowledge of the employee, but also for reasons related to organizational and technological conditions.
2. Also remains open question the possibility of concluding an employment contract with a new employee who will take the place of the transferred one. Since the transferred worker retains his job, the possibility of hiring a new employee, even for a certain time, can cause problems.
3. Often the problem arises with the most difficult issue - the level of salary of the transferred worker. Although the employee replaces another employee, the contract may not provide for any additional payments, although this is unacceptable from the point of view of Rostrud. The transferred worker has to perform only his job duties, and if he does not receive an increase in wages, he is not obliged to perform additional work for the absent employee.
4. If the transferred employee agreed for some reason to transfer to a less paid job, the manager does not have the right to violate the principle of remuneration existing at the enterprise. He is obliged to make payments in accordance with the system in force in the company.

In accordance with Art. 31 TC moving the assignment by the employer to the employee of the previous job at a new workplace is recognized both in the same and in another structural unit, with the exception of a separate one, on a different mechanism or unit, but within the limits of the specialty, qualification or position with the preservation of working conditions stipulated by the employment contract.

The movement does not require the consent of the worker.

There are 3 types of movement:

1. within the same structural unit;

2. to another structural subdivision, provided that it is located in the given locality (except for a separate one);

3. assignment of work on another mechanism (unit).

workplace is the place of permanent or temporary stay of the employee in the course of labor activity. Difference from place of work

The legislation does not define the period of movement, but it must be justified by industrial, organizational or economic reasons.

It is not allowed to transfer an employee to work that is contraindicated for him for health reasons.

In cases where, as a result of the employee's relocation, earnings are reduced for reasons beyond his control, an additional payment is made to the previous average earnings within two months from the date of relocation (Article 72 of the Labor Code).

The transfer is made out by the order (instruction) of the employer.

Differences between transfers and transfers:

1. when transferring, the labor function changes either the locality or the employer (place of work); when moving - the employee performs the previous work, i.e. workplace, mechanism changes;

2. transfer requires the consent of the employee, with certain exceptions, and when moving, consent is not required;

Changes in essential working conditions.

In accordance with Art. 32 of the Labor Code, due to justified production, organizational or economic reasons, the employer has the right to change the essential working conditions of the employee while continuing to work in the same specialty, qualification or position specified in the employment contract.

Essential working conditions systems and amounts of remuneration, guarantees, working hours, grade, profession, position, establishment or abolition of part-time work, combination of professions and other conditions established in accordance with this Code are recognized.

Production, organizational or economic reasons may be, for example, a change in production technology, the introduction of new forms of labor organization, the introduction contract system recruitment, etc.

The employer must notify the employee on changes in essential working conditions in writing no later than one month.

If the employee refuses to continue working with the changed essential conditions labor contract is terminated under paragraph 5 of Art. 35 TK.

Business trip concept.

In accordance with Art. 91 TK business trip a trip of an employee on the order of the employer for a certain period of time to another locality to perform an official task outside the place of his permanent work is recognized.

Not considered business travel business trips of employees whose permanent work takes place on the road or is traveling or mobile, as well as within the locality where the employer is located.

Employees on a business trip are subject to the working hours and rest periods established at the place of the business trip, but the average earnings are maintained for all working days of the week according to the schedule of the permanent place of work.

The direction of employees on a business trip is issued by order (instruction) of the employer with the issuance of a travel certificate of the established form.

The period of actual stay on a business trip is determined by the notes on the travel certificate on the day of arrival and departure from the place of stay.

Direction on a business trip for a period of more than 30 calendar days allowed only with the consent of the employee.

The day of departure on a business trip is the day of departure (departure) of a train, plane, bus or other vehicle from the place of permanent work of the seconded person, and on the day of arrival - the day of arrival of the specified transport to the place of permanent work. When transport departs before 24:00 inclusive, the day of departure is considered the current day, and from 00:00 and later - the next day.

The closing time on the day of departure is determined by agreement with the employer. In case of arrival before the end of the working day, the issue of the time of attendance for work on that day is resolved in the same manner.

For employees sent on a business trip, the place of work (position) and wages are retained for the entire duration of the business trip, but not lower than average earnings.

During business trips, the employer is obliged to issue an advance payment and reimburse the employee for the following expenses:

1) on the way to the place of business trip and back;

2) for renting a dwelling;

3) for living outside the place of permanent residence (daily allowance);

4) other expenses incurred by the employee with the permission or knowledge of the employer.

The procedure and amounts of reimbursement of expenses for business trips are determined by the Government of the Republic of Belarus or a body authorized by it.

Differences between a business trip and a transfer:

1. when traveling is saved permanent place work, the employee is guaranteed average salary, and the expenses associated with a business trip are compensated, and when transferring, the labor function or place of work changes;

2. when sending on a business trip, the consent of the employee is not required, with the exception of certain categories of employees (women with children from 3 to 14 years old, disabled children under 18 years old), and when transferring, consent is required.

3.Sending on a business trip is limited in time (not more than 30 days), and the transfer can be both temporary and permanent.

How is transfer different from transfer?

The movement of employees and their transfer is, in any case, certain personnel changes. How is transfer different from transfer? How not to confuse one type of change with another? Let's try to figure it out.

Transfer to another job

A transfer is considered to be such changes in working conditions under which the following changes:

• labor functions (type of work assigned to the employee in accordance with his profession, position, qualifications);
• a structural unit in one company (if such a unit was specified when hiring in an employment contract);
• the employer and the area in which the employee worked.

When moving to another locality in connection with the transfer, the employee must be paid due compensation: baggage allowance, travel expenses for the employee and his family members, accommodation expenses, etc.

Translation can be:

• temporary or permanent;
• at the initiative of the employee or employer;
• on medical indications.

The difference between translation and movement

Movement is a change in which do not change terms of the employment contract, but:

• changing workplace;
• the structural unit changes (if the new unit is located in the same area);
• work on a different unit or mechanism is entrusted (at the same time, the work performed must not change, that is, work on a new unit and mechanism cannot be other than specified in the employment contract).

A transfer can be, like a transfer, temporary or permanent.

The main condition for the transfer, in which the consent of the employee is not required, is the absence of changes in the employment contract. For example, if a specific workplace was indicated in the employment contract, then the employer is not entitled to force the employee to work at a new workplace without his consent. This also applies to moving to another structural unit. If it was originally specified in the employment contract, then its change will already be considered a transfer and it will require the consent of the employee.

If the employment contract stipulates work on a specific unit or mechanism as a condition, then changing this condition will also require the consent of the employee.

The difference between transfer and movement in labor law
Translation	moving
Changes in the terms and conditions of the employment contract	The terms of the employment contract do not change
The consent of the employee is required, except for a temporary transfer of up to one month in exceptional cases (natural disasters and life-threatening circumstances to prevent such circumstances)	Employee consent is not required
If the employee is transferred to another position on a permanent basis, an entry is made in the work book	No workbook entry
To make a translation you need: conclude an additional agreement with the employee; issue an order; familiarize the employee with the order.	To make a transfer, you need: issue an order; familiarize the employee with the order.

As you can see, the differences between transferring to another job and moving are significant. But there are also similarities between them. So, in both cases, something changes for the worker. In addition, the legislation contains a ban on any movement or transfer of an employee if this may adversely affect his health or is contraindicated for him for medical reasons. For example, a pregnant employee should not be moved to a new workplace if such a place could in any way harm the normal development of the pregnancy.

For various reasons, the employer has to transfer employees to another position, to another structural unit or another locality. At the same time, the Labor Code of the Russian Federation names cases when an employer in without fail offers the employee a translation. In this article, we recall the rules regarding the transfer to another locality when the location of the institution changes.

Transfer to another job in accordance with Art. 72.1 of the Labor Code of the Russian Federation recognizes a permanent or temporary change in the labor function of an employee and (or) the structural unit in which he works (if the unit was specified in the employment contract), while continuing to work for the same employer, as well as transfer to work in another locality, along with employer.

Recall that the transfer to another locality, together with the institution, belongs to the category of permanent ones.

Transfer to another job is allowed only with the written consent of the employee, with the exception of certain cases. In particular, an employee can be transferred without his consent for a period of up to one month to work not stipulated by an employment contract with the same employer:

in the event of a natural disaster or technogenic nature, industrial accident, industrial accident, fire, flood, famine, earthquake, epidemic or epizootic and in any exceptional cases that endanger the life or normal living conditions of the entire population or part of it (part 2 of article 72.2 of the Labor Code of the Russian Federation);

- in cases of downtime (temporary suspension of work due to economic, technological, technical or organizational reasons), the need to prevent the destruction or damage to property or replace a temporarily absent employee, if the downtime or the need to prevent the destruction or damage to property or replace a temporarily absent employee is caused by emergency ( part 3 article 72.2).

Differences of transfer to another locality from other types of transfers

Transfer to work in another locality together with the employer should be distinguished from other movements (relocations) of employees:

- from the movement of employees working on a rotational basis. In this case, moving from one facility to another cannot be considered as a transfer, since the fact that the employee works at facilities located in different areas is a condition of his employment contract;

- from the transfer of an employee from one structural unit of the institution to another located in a different locality, if the institution itself does not move, since in this case there is a transfer to another job, and not to another locality together with the employer, since the location of the latter does not change. Let us clarify that changing the location of a separate subdivision is not regulated by Art. 72.1 of the Labor Code of the Russian Federation and cannot be considered as the employer's relocation to another locality. In addition, according to paragraph 3 of Art. 55 of the Civil Code of the Russian Federation, branches, representative offices and other separate structural subdivisions are not legal entities, and, accordingly, cannot be considered employers in relation to employees. That is, a change in their location and transfer to work in another separate subdivision is not considered a transfer in connection with the relocation of the employer to another locality. Therefore, in the event of a change in the address of a branch or representative office, Art. 72 of the Labor Code of the Russian Federation, according to which a change in the terms of an employment contract determined by the parties is allowed only by agreement of the parties. In this case, it is necessary to conclude in writing an additional agreement to the employment contract on changing the terms of this contract determined by the parties. If an employee refuses to be transferred to another location together with a branch, representative office or other separate subdivision, the employment contract with him is terminated in accordance with paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation (refusal to continue work due to a change in the terms of the employment contract determined by the parties);

- from the rotation of personnel, which is the movement of specialists or executives from one position to another in the same or in another institution, taking into account the level of their qualifications, vocational education and length of service (service) in the specialty. The purpose of rotation may be to promote an employee in a position with the expansion of powers and scope official duties; raising the level of qualifications, accompanied by an assignment to a manager or specialist of more complex tasks, without promotion, but with an increase in wages; change of tasks and responsibilities in connection with the transfer to an equivalent position without promotion and salary. In addition, rotation implies the transfer of an employee to a new job or position in order to obtain additional qualifications and expand professional experience.

It should also be noted that in accordance with Part 6 of Art. 60.1 federal law dated 27.07.2004 N 79-FZ "On the state civil service of the Russian Federation" position civil service, to which a civil servant is appointed in the order of rotation, is replaced for a period of three to five years. This is also indicated in the Letter of the Ministry of Labor of the Russian Federation of September 18, 2012 "On Methodological Recommendations" (together with the Recommendations of April 30, 2013 " Guidelines- 2.0. Organization of the rotation of federal state civil servants in federal bodies executive power").

Features of transfer to another locality

So, a transfer to work in another locality together with the employer includes a transfer to a locality outside the administrative-territorial boundaries of the corresponding settlement in which the employer was located (paragraph 16 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2 "On the application by the courts of the Russian Federation Labor Code Russian Federation"). It should be remembered that the employer needs to inform employees about the decision to transfer the activities of the institution to another locality. It is not legally determined when and in what form the employer should offer employees to transfer to another locality. Therefore, we believe that it is necessary be guided by Article 74 of the Labor Code of the Russian Federation and warn them, in order to avoid problems, two months before the planned move, in writing, for example, in the form of a notice, which will reflect:

— the new address of the location where the activity will be carried out;

- the term for transferring the institution to a new location and, accordingly, the date the employee starts working in a new place (the employer must clearly determine the timing of the move; if the employer has not moved within the established time frame, then a second notification is made);

- guarantees provided to the employee in connection with the relocation, including the composition, method and amount of expenses reimbursed to the employee;

- the period during which the employee must notify the employer of consent to the transfer or refusal of it;

- the consequences of the employee's refusal to transfer together with the employer to another locality (in this case, a dismissal is issued in accordance with clause 9, part 1, article 77 of the Labor Code of the Russian Federation).

For optimization documentation it is more expedient to issue a single order (notice) on moving the organization to another locality and bring it to the attention of all employees against receipt. If the employee refuses to sign, an act of refusal to familiarize is drawn up. Consent or refusal to transfer should be obtained from each employee individually in any written form.

New address

Note that if employees carry out labor activities not at the location executive body employer, then it will not matter to them where this body has moved, since on their implementation job duties it won't have any effect. In addition, the location of the organization is not prerequisite employment contract, in contrast to the place of work, especially for employees who work in branches, representative offices or other separate structural divisions (Article 57 of the Labor Code of the Russian Federation).

We clarify that the location of the employer - legal entity in accordance with paragraph. 2, 3 Article. 54 of the Civil Code of the Russian Federation is determined by the place of its state registration. The address of its location is recorded in the constituent documents, as well as in the Unified State Register of Legal Entities. That is, after the issue with the address is resolved, it is necessary to make changes to founding documents and register the changes in the prescribed manner.

When changing legal address it should be borne in mind that the address is considered changed from the moment the corresponding entry is made in the Unified State Register of Legal Entities. This is due to the fact that, according to "in" paragraph 1 of Art. 5 of the Federal Law of 08.08.2001 N 129-FZ "On State Registration of Legal Entities and individual entrepreneurs"The Unified State Register of Legal Entities contains information and documents about a legal entity, in particular, the address (location) of its permanent executive body (in the absence of such, another body or person entitled to act on behalf of a legal entity without a power of attorney), through which communication is carried out with a legal entity If a legal entity has a manager or managing organization along with this information, the place of residence of the manager or the location of the managing organization is indicated. In addition, the mandatory entry into the Unified federal register information about the facts of the activities of legal entities is subject to a record of a change in the address (location) of the legal entity (clauses "and" clause 7 of article 7.1 of the said law).

Guarantees and compensation

If the employee agrees to be transferred to another locality together with the employer, then the employer needs to discuss with him not only the terms of the transfer, but also the procedure for fulfilling the guarantees established by labor legislation. We add that by virtue of Art. 57 of the Labor Code of the Russian Federation, an employment contract may provide for additional conditions that do not worsen the position of the employee in comparison with those established by law. Such conditions include, for example, the obligation of the employer to reimburse travel and accommodation costs.

Articles 164 and 165 of the Labor Code of the Russian Federation establish a list of guarantees and compensations (cash payments) related to reimbursement to employees of the costs incurred by them in the performance of labor or other duties provided for by the Labor Code of the Russian Federation and other federal laws, in particular, when moving to work in another locality . However, such guarantees and compensations are not included in the salary. A similar opinion is presented in the resolutions of the FAS UO dated 06/08/2012 N F09-3304 / 12, FAS MO dated 03/21/2011 N KA-A40 / 1449-11 and 08/21/2008 N KA-A40 / 7732-08.

Note. When providing guarantees and compensations, the corresponding payments are made at the expense of the employer. If it is not possible to accurately determine in advance the amount of reimbursable expenses in connection with the employee’s relocation to work in another locality, an advance payment is issued to him, by prior agreement with the employer (clause 2 of Decree of the Government of the Russian Federation N 187).

They are defined in more detail in Art. 169 of the Labor Code of the Russian Federation. So, when employees move, by prior agreement with the employer, to work in another locality, the latter is obliged to reimburse the following expenses:

- for the movement of the employee, his family members and the transportation of property (except for cases when the employer provides the employee with appropriate means of transportation);

- to settle in a new place of residence.

The specific amounts of reimbursement of expenses are determined by agreement of the parties to the employment contract, minimum dimensions compensation is not legally established. However, at the same time, it is still necessary to be guided by the decisions of the Council of Ministers of the USSR N 677 and the Government of the Russian Federation N 187. In addition to compensating the cost of travel and expenses for transporting property, they provide for the payment of daily allowances to employees for each day on the road, a lump-sum allowance in the amount of monthly salary at a new place of work and 1/4 of the employee's monthly salary for each moving member of his family.

Due to the fact that Art. 169 of the Labor Code of the Russian Federation does not oblige the employer to pay daily allowances for travel time, and also does not mention the payment of a lump sum allowance to the employee and his family members and wages for the days of gathering on the road and settling in a new place, these amounts are paid to employees only by agreement of the parties.

Note! When hiring a new employee, payment for his travel to the place of work specified in the employment contract is not recognized as compensation, since before the conclusion of the employment contract, the norms of Art. 169 of the Labor Code of the Russian Federation do not apply.

The condition for compensation for renting a dwelling should be reflected in the employment contract (additional agreement) with the employee, as well as in the local normative act institutions. In addition, paragraph 3 of Decree of the Council of Ministers of the USSR N 677 establishes that employees who have moved in connection with their transfer to work in another area and members of their families are provided with living quarters on the terms stipulated by the employment contract. This resolution is valid to the extent that it does not contradict the Labor Code of the Russian Federation (Article 423 of the Labor Code of the Russian Federation). And, as we see, there are no contradictions with the Labor Code of the Russian Federation in this provision. And nowhere is it established what relates to the costs of settling in a new place of residence.

Refusal to move with the employer

If an employee refuses to be transferred to another location with the employer, then he must send a written refusal to the latter. Only if such a document is available, it is possible to terminate the employment contract under paragraph 9 of part 1 of Art. 77 of the Labor Code of the Russian Federation. In this case, the dismissed person must be paid severance pay in the amount of a two-week average earnings (Article 178 of the Labor Code of the Russian Federation). In the order to terminate the employment contract, in the line (column) "Basis (document, number, date)" the following details should be indicated:

— Decisions by the authority to move the facility to another location;

- refusal of the employee to transfer to another job.

Let us dwell separately on the issue of refusing to move to another locality for women with children under the age of three, single mothers raising a child under the age of 14 (a disabled child under 18), and other persons raising such children without a mother.

Recall that it is not allowed to terminate the employment contract at the initiative of the employer with an employee during the period of his temporary disability and during his vacation (part 6 of article 81 of the Labor Code of the Russian Federation), with a pregnant woman, as well as a woman with a child under the age of three years , a single mother raising a child under the age of 14 (a disabled child - up to 18 years), other persons raising these children without a mother (parts 1, 4 of article 261 of the Labor Code of the Russian Federation), except for the cases specified in these articles .

However, the employer's move to another locality actually means the termination of the employer's activities in this locality, and we are talking about the transfer of not a specific employee to another job, but the entire institution to another locality. It is no coincidence that the basis for terminating the employment contract is provided not in connection with the refusal to transfer in general, but in connection with the refusal to transfer to work in another locality (clause 9, part 1, article 77 of the Labor Code of the Russian Federation). Termination of an employment contract on this basis refers to the general grounds for termination and is not the initiative of the employer. Accordingly, these persons, in case of their refusal to move to another locality, can be dismissed on a general basis.

Here is an example of filling out a work book.

				Information on hiring, transfer to another permanent job, qualifications, dismissal (with reasons and a link to the article, paragraph of the law)	Name, date and number of the document on the basis of which the entry was made
				Dismissed due to refusal to transfer	Order dated 16.08.2013
				to work in another area together
				with the employer, point 9 of part 1
				article 77 of the Labor Code
				Russian Federation.

If the employee did not show up for work at the new location of the employer or refused to start it without good reasons, and also if he left before the end of the term of work (and in the absence of a term - before the expiration of one year) own will without good reason or was dismissed for guilty actions, then he is obliged to return to the institution in full the funds paid to him in connection with moving to another locality, minus travel expenses.

Personnel documents

Upon receipt of consent to transfer to another location and on the basis of an additional agreement, an order is issued to transfer the employee to another job. Recall that the Decree of the State Statistics Committee of the Russian Federation dated 05.01.2004 N 1 approved for these purposes unified forms T-5 and T-5a. But you can also use self-designed forms.

Based on the order, no later than a week's time, an entry about such a transfer must be entered in the employee's work book (Articles 66, 72.1 of the Labor Code of the Russian Federation, clauses 4, 10, 12 of the Rules for maintaining and storing work books). The entry must exactly match the text of the order. In addition, it is necessary to make a similar entry in the employee's personal card (form T-2).

In the event that an employee refuses to be transferred to another locality, the dismissal is formalized by an order to terminate the employment contract in the form of T-8 or T-8a, which the dismissed person must be familiarized with. If it is impossible to bring the order to the attention of the employee, a record of this is made on it.

Upon dismissal, an employee is issued a work book with a record of dismissal (Article 84.1 of the Labor Code of the Russian Federation), and the correctness of the entries in the work book must first be certified by the signature of the employee (clause 35 of the Rules for maintaining and storing work books).

In addition, the employer is obliged to make a record of the dismissal, similar to the entry in the work book, in a personal card and ask the dismissed person to sign both in the personal card and in the book of accounting for the movement of work books and inserts in them (clause 41 of the Rules for maintaining and storing work books ).

The Russian legislator, taking into account the needs of the employer for the prompt and effective management of the organization, the production process, the effective use of the labor of employees, constantly improves labor legislation.

Federal Law No. 90 FZ of June 30, 2006, Ch. 12 “Changing the employment contract” of the Labor Code of the Russian Federation was supplemented by article 72 2 “Temporary transfer to another job”. However, this article does not give the concept of temporary translation. It can be deduced from the content of Art. 72 1 “Transfer to another job. Relocation".

Note! Another locality is usually understood as an area outside the administrative-territorial boundaries of the corresponding settlement (clause 16 of the Decree of 17.03.04 No. 2)

A temporary transfer from the same employer is: 1) a temporary change in the labor function of an employee, which is defined as work in a specific position, profession, specialty, indicating qualifications or a specific type of work assigned. The fixing in the employment contract of the worker's profession and his qualifications indicates that the assignment of work in the same profession, but with a different qualification, will also be a change in the labor function; 2) a temporary change in the structural unit in which the employee works, if the structural unit was indicated in the employment contract 3) a temporary change in both the employee's labor function and the structural unit where the employee works, if the structural unit was indicated in the employment contract.

Unlike a temporary transfer, a business trip in accordance with Art. 166 of the Labor Code of the Russian Federation is called the trip of an employee by order of the employer for a certain period to perform an official assignment outside the place of permanent work, that is, the performance of work in this case can take place both in the same locality where the employer is located, and in another locality.

Grounds for transfer and business trip

The grounds for the need for a business trip and temporary transfer are different.

The official task performed by an employee during a business trip is determined by the need to ensure the functioning of the employer, which corresponds to the subject and goals of his activity. For example, it is required to conclude commercial contract, get acquainted with the experience of the organization, etc. The work performed during the business trip must correspond to the labor function of the employee, determined by the employment contract. The direction of an employee on a business trip is always carried out at the initiative of the employer.

Meanwhile, the grounds that determine the need for a temporary translation are more capacious. As a rule, during a temporary transfer, the employee’s labor function changes (with the exception of cases where the transfer is associated with a change in the structural unit, if it was indicated in the employment contract).

While sending an employee on a business trip is carried out at the initiative of the employer, temporary transfer to another job is possible:

• at the initiative of the employer; at the same time, in some cases, the employer has the right to offer the employee a transfer to another job, while in others he is obliged to do so;
• at the initiative of the employee, when, at the request of the employee, the employer is obliged to transfer him to another job he has (in particular, if there is a medical certificate that it is necessary to transfer to another job);
• by agreement of the parties.

Let's consider an example when the transfer should be carried out at the initiative of the employee.

I. worked at OAO Mondi Business Paper of the Syktyvkar LPK as an electric and gas welder. While on duty, he was injured at work.

The medical and social expert commission, during the examination, established I. 3rd disability group with loss of professional ability to work 50% per year. According to the medical report, he is contraindicated for severe physical work and work at moving mechanisms, the work of a toolmaker is recommended. However, the employer did not have such an opportunity, because in staffing there is no toolmaker organization. The employee was dismissed under paragraph 8 of part 1 of Art. 77 of the Labor Code of the Russian Federation, because he needed a temporary transfer for a period of more than four months, and the employer did not have a job corresponding to a medical report.

By decision of the Ezhvinsky District Court of Syktyvkar, the claim for the reinstatement of I. was dismissed.

It should be noted that on the basis of Art. 73 of the Labor Code of the Russian Federation, the transfer of an employee with his consent to another job in accordance with a medical report is the responsibility of the employer. The absence of the profession of a toolmaker in the staff list of the organization did not relieve the employer from the obligation to offer other jobs and positions that the employee can and agrees to perform for health reasons, taking into account the medical report.

The Judicial Collegium for Civil Cases overturned the decision of the district court.

By general rule the employee cannot refuse to be sent on a business trip (with the exception of certain categories), since the necessity of the trip, its purpose and the content of the assignment are determined by the employer himself.

As for the temporary transfer to another job, as a general rule, it is carried out by agreement of the parties. However, the legislator in Parts 2 and 3 of Art. 72 2 of the Labor Code of the Russian Federation establishes cases when a temporary transfer at the initiative of the employer is mandatory for the employee (in the presence of emergency circumstances). According to paragraph 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 04 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, when an employee is temporarily transferred to another job without his consent, the obligation to prove the existence of circumstances with which the law associates the possibility of such a transfer is assigned on the employer.

The order of the director of the plant prescribed to transfer accountant N. to the workshop for processing raw materials as a packer from October 12 for a period of 7 working days. The temporary transfer order indicated that the transfer was caused by the need to eliminate the idle time in the work of the raw material processing shop, which arose for technological reasons.

Disagreeing with the order, N. refused the transfer and continued to fulfill her duties as an accountant. Since the manager's order was not complied with, the employer regarded her refusal to transfer as a disciplinary violation and, by order, imposed a disciplinary sanction on her in the form of a reprimand.

N. applied to the district court with a claim for recognition disciplinary action illegal. By the decision of the district court, the order issued by the employer to transfer N. to the raw materials processing workshop was recognized as not meeting the requirements labor law. Temporary suspension of work in the raw materials processing workshop did take place, however, the order did not name the emergency circumstances that led to the downtime. In addition, Part 3 of Art. 72 2 of the Labor Code of the Russian Federation requires obtaining the consent of the employee when transferring to work with a lower qualification. The employer transferred N. without taking into account her position, without obtaining consent for the transfer.

The worker's claim was granted.

The duration of the transfer depending on the basis

Thus, the employee has the right to refuse a temporary transfer when the employer has no legal grounds for the transfer or the requirement to comply with the transfer procedure has not been met (for example, the employee’s consent has not been obtained, the transfer is carried out for a period of more than one month).

Term limit

When issuing an order for a business trip or temporary transfer, the employer indicates the specific period for which the employee is sent or transferred. But if during a business trip the term is determined by the employer based on the official task to be performed, then during a temporary transfer there is a limitation on its duration at the level of the legislator (see table).

In some cases, such a restriction is provided for by the Labor Code of the Russian Federation, in others, the transfer period is determined by a medical report.

Restriction on the circle of persons

Both in the case of temporary transfer of an employee to another job, and in case of sending on a business trip, there is a restriction on the circle of persons in respect of whom the transfer or sending on a business trip is carried out.

The employer does not have the right to transfer the employee to work that is contraindicated for him for health reasons. When sent on a business trip, there is no such restriction, since, as a general rule, during the business trip, the employee continues to perform labor function provided for in the employment contract.

At the same time, they cannot be sent on a business trip, even with their consent, underage workers and pregnant women. In this case, it does not matter whether the employer to whom the employee is sent is located in another area or in the same area as the employer who sent him on a business trip.

Direction to business trips women with children under the age of three are required to follow a certain procedure: familiarizing the employee in writing with her right to refuse to be sent on a business trip; obtaining written consent and a medical opinion that there is no travel ban. This guarantee is also provided to mothers and fathers raising children under the age of five without a spouse; employees with disabled children; employees caring for sick family members in accordance with a medical report; fathers raising children without a mother; guardians, guardians of minors (Articles 259 and 264 of the Labor Code of the Russian Federation).

Expert opinion

E. V. Orlova, deputy CEO CJSC "ASM Audit" Travel dates: restrictions lifted Almost all organizations in the course of their activities are faced with the need to send their employees on business trips. According to part 2 of Art. 166 of the Labor Code of the Russian Federation, the specifics of sending employees on business trips are determined in the manner approved by the Government of the Russian Federation. Since such a procedure was not established until recently, organizations had to use the Instruction of the Ministry of Finance of the USSR, the State Committee for Labor of the USSR and the All-Union Central Council of Trade Unions of 07.04.88 No. 62 “On business trips within the USSR” (hereinafter referred to as the Instruction) in part that does not contradict the Labor Code of the Russian Federation. In particular, clause 4 of the Instruction contained strict restrictions on the duration of a business trip: its maximum duration within Russia could not exceed 40 days (not counting travel time). In turn, the period of business trips for workers, managers and specialists sent to perform installation, commissioning and construction works across the country, could not exceed one year. At the same time, the maximum terms for business trips abroad have not been legally determined. For business trips abroad, only daily allowances were approved, which can be included in expenses when taxing profits. And these norms are differentiated by the duration of stay on a business trip: up to 60 days and over 60 days (Decree of the Government of the Russian Federation of 08.02.02 No. 93). The Ministry of Finance of Russia believed that the maximum period for which an employee could be sent on a business trip abroad was the same as for business trips in Russia. That is, 40 days, and when performing installation, commissioning and construction work - no more than a year (letters of the Ministry of Finance of Russia dated September 28, 07 No. The previously established limitation on the duration of business trips directly affected the value travel expenses, which the organization was entitled to take into account for the purposes of calculating income tax. So, for example, if the employee performed the labor duties stipulated by the employment contract outside the place of permanent work for a period exceeding the maximum business trip time established by the Instruction, the corresponding expenses could not be qualified as business trip expenses for tax purposes (letter of the Ministry of Finance of Russia dated March 28, 2008 No. 03 03 06/2/30).

In this case, payments to a seconded worker could be included by the tax authority in the tax base for income tax. individuals, unified social tax, pension contributions and contributions for insurance against accidents and occupational diseases (clause 1 of article 210 of the Tax Code of the Russian Federation, clause 1 of article 237 of the Tax Code of the Russian Federation, clause 2 of article 10 of the Federal Law of December 15, 2001 No. 167 FZ “On Compulsory Pension Insurance in the Russian Federation”, clause 3 of the Rules for the Calculation and Disbursement of Funds for the Implementation of Compulsory social insurance from accidents at work and occupational diseases, approved Decree of the Government of the Russian Federation of 02.03.00 No. 184). Moreover, according to the opinion of the Ministry of Finance of Russia, set out in letters No. 03 04 06–01/335 of 28.09.07 and No. 03 04 06–01/1 of 12.01.07, the establishment of a limitation on the duration of a business trip is due to the fact that the employee for a period exceeding the established one, leads to the inability to perform labor duties at the place of work specified in the employment contract, since the employee actually performs his labor duties at the place of business trip. For example, if an employee is sent to work abroad for a long period of time, when the employee performs all his labor duties stipulated by the employment contract at the place of work in a foreign state, the actual place of work of the employee will be located in a foreign state, and such an employee cannot be considered those on a business trip. And the remuneration received by the worker in this case, is a remuneration for the performance of labor duties in the territory of a foreign state, which does not apply to income from sources in the Russian Federation. Now, when sending employees on a business trip, one should be guided by the Regulations on the Peculiarities of Sending Employees on Business Trips, approved. Decree of the Government of the Russian Federation of October 13, 2008 No. 749 (entered into force on October 25, 2008). According to paragraph 4 of this document, the term of a business trip is no longer limited. The duration of a business trip both in Russia and on the territory of foreign states is determined by the employer, taking into account the volume, complexity and other features of the assignment. In accordance with Art. 8 and 9 of the Labor Code of the Russian Federation, the maximum terms of business trips, including abroad, can be established by an employment contract, agreement, collective agreement, local acts organization (order, order). Thus, starting from October 25, 2008, the minimum and maximum terms of a business trip both on the territory of Russia and on the territory of foreign states are determined by the order of the head of the organization or a local document, for example, the Regulations on business trips approved by the head of the organization, a collective agreement, an employment contract .

When setting the maximum travel time in the relevant local document, we recommend that the employer consider the following factors. First, the economic and organizational validity of the duration of business trips. This is primarily due to the fact that for the purpose of taxing profits, the organization will be able to take into account travel expenses, subject to the requirements of paragraph 1 of Art. 252 of the Tax Code of the Russian Federation (economic feasibility and documentary evidence of such expenses, their focus on generating income). Secondly, it is necessary to take into account the restrictions on the duration of the labor activity of a foreign citizen outside the constituent entity of the Russian Federation, on the territory of which he was issued a work permit, a temporary residence permit, established by subpara. "a" p. 1 and sub. "a" paragraph 2 of the Decree of the Government of the Russian Federation of February 17, 2007 No. 97 "On the establishment of cases of employment by a foreign citizen or stateless person temporarily staying (living) in the Russian Federation, ext. Accordingly, if a foreigner temporarily staying in Russia is sent on a business trip, the business trip period should not exceed 10 calendar days during the period of validity of the work permit. If a foreigner temporarily residing in Russia is sent on a business trip, the business trip period should not exceed 40 calendar days within 12 calendar months. Thirdly, when traveling abroad, one should keep in mind tax implications for a seconded worker and the potential loss of the status of a Russian tax resident (in terms of applying the rate of 30% instead of 13% for all income received by an individual) in relation to foreign business trips, the duration of which exceeds 183 days within 12 consecutive months. This is due to the fact that, according to paragraph 2 of Art. 207 of the Tax Code of the Russian Federation, individuals are recognized as tax residents of the Russian Federation only if they actually stay on the territory of the Russian Federation for at least 183 calendar days within 12 consecutive months. In this case, the nationality of an individual does not matter. Consequently, individuals sent on a business trip abroad for a period of less than 183 days within 12 consecutive months are recognized as tax residents of the Russian Federation. Recall that a tax resident of the Russian Federation is subject to all the obligations of taxpayers (clause 2, article 11 of the Tax Code of the Russian Federation and article 207 of the Tax Code of the Russian Federation), but he also acquires all the rights of taxpayers - individuals, incl. the right to standard deductions (Article 218 of the Tax Code of the Russian Federation).

Salary

During the period of being on a business trip, the employee is guaranteed the preservation of average earnings.

In the event of a temporary transfer to another job, the maintenance of average earnings is provided to pregnant women.

In case of a temporary transfer due to exceptional circumstances that endanger the life or normal living conditions of the entire population or part of it (parts 2 and 3 of article 72 2 of the Labor Code of the Russian Federation), remuneration is made according to the work performed, but not lower than the average earnings for the previous work.

Similarly, the issue of remuneration is regulated when transferring a woman with children under the age of one and a half years, in case of impossibility to perform the previous job, as well as when transferring an employee for a break in work due to a suspension or temporary ban on activities due to violation of state regulatory requirements for labor protection. through no fault of the employee.

Article 220 of the Labor Code of the Russian Federation establishes guarantees for the right of employees to work in conditions that meet the requirements of labor protection, determining the obligation of the employer to provide the employee with another job while the danger to his life and health that has arisen during the performance of work is eliminated. However, this article does not contain a provision on wage guarantees provided to an employee upon transfer to another job. The legislator has established a guarantee for such employees in the event that the provision of other work for objective reasons is impossible. The downtime that arose in this case through the fault of the employer is paid in accordance with Part 1 of Art. 157 of the Labor Code of the Russian Federation in the amount of at least two thirds of the average salary of an employee.

Article 72 1 of the Labor Code of the Russian Federation allows the transfer of an employee, with his written consent or at his written request, to a permanent job with another employer (in this case, the employment contract at the previous place of work is terminated). The possibility of temporary transfer of an employee to another employer is excluded as a general rule. Temporary transfer of an employee implies the continuation of work for the same employer.

ON No. 12‘2008

The Decree of the Government of the Russian Federation of October 13, 2008 approved the Regulations on the Peculiarities of Sending Employees on Business Trips. Explanation of changes in personnel work in connection with the adoption of this document and an analysis of the changes that have occurred, read in the next issue.