Article 72.1 of the Labor Code sets out the main nuances of moving/transferring an employee to another position.
It provides a definition of the concept of translation, describes the necessary actions for it, and also indicates restrictions on its use by the employer. Labor Code of the Russian Federation
dated December 30, 2001 N 197-FZ
Full text of the article, guides, additional information - in ConsultantPlus
Contents of Art. 72.1 TK
At the beginning, a definition of translation is given. It is indicated that it can take the following forms:
- change in labor function;
- and/or a corresponding change in the department where the employee is employed, if it is mentioned in the employment contract;
- or transfer within the organization to another territory.
It is emphasized that in all options the employee must continue to be registered with the same employer.
It is indicated that in any of the three mentioned formats, transfer is possible only on the basis of written confirmation from the employee. Exceptions apply to situations discussed in Art. 72.2 TK.
The case where an employee expresses a desire to transfer to another employer for a permanent job has also been analyzed. This is possible at the request or with the consent of the employee. In this situation, the employment contract with the previous employer is terminated under Part 1 of Art. 77 TK. In both cases, the employee wishing to transfer is required to express his opinion in writing.
Moving situations are discussed next. It differs in that the employer does not need the consent of the subordinate. This is possible if the subordinate:
- moves to another place with the same employer;
- moves to a unit of the organization geographically located in the same area;
- begins to work on equipment close to that on which he worked previously.
It is also necessary that all of the above does not entail changes in the parameters of the current employment contract.
The final part emphasizes that the employer is prohibited from transferring/moving a subordinate to a position that is contraindicated for him for medical reasons.
So, the article reviewed examines in detail the main points associated with the transfer/relocation of an employee and determines what restrictions apply to the implementation of these opportunities in practice.
The concept and types of transfers to another job
Under transfer to another job
(a type of change in the employment contract) -
a permanent or temporary change in the labor function of the employee, the structural unit in which the employee worked (if it was specified in the employment contract) while continuing to work for the same employer, as well as transfer to another location together with the employer
.
A labor function is work in a position in accordance with the staffing table, profession, specialty, indicating qualifications. The staffing table is a local regulatory legal act. There are two types of labor function: simple and complex. Simple is one that does not require special skills and knowledge. A complex work function - it requires skills and knowledge and has its own structure. Structure:
1) profession, as an occupation arising from the division of labor.
2) A specialty is a division within a family, which is determined by the presence of special knowledge, skills, and abilities.
3) Qualification - presence of a profession and specialty - official confirmation, i.e. document.
4 translation sign
:
1. Change in labor function, i.e. any element of the labor function, if it is complex, can be changed, but changing the name of the labor function is not considered a translation. To determine whether the job function has changed when the name is changed, it is necessary to analyze the job responsibilities of the person. If at the same time at least one change is discovered in the structure of the duty, then this will be considered a change in the labor function.
2. A change in the structural unit is also only if the structural unit was indicated in the employment contract as the place of work. In some cases, this transfer option can also include a change in workplace if the workplace was determined as a condition of the employment contract.
3. Changing the terrain in accordance with the administrative territorial division.
4. A change of employer is concluded in a written agreement. The previous legal relationship is terminated and a new legal relationship arises.
In the first 3 cases, the legal relationship is preserved, but modified.
The Labor Code prohibits the employer from requiring the employee to perform work not stipulated by the employment contract, therefore, transfers are allowed only with the consent of the employee, except in cases established by law.
Relocation should be distinguished from transfer to another job
an employee with the same employer to another workplace, to another structural unit in the same area, assignment of work on another mechanism or unit.
The transfer does not require
the employee's consent. It will take place if the parties, when concluding an employment contract, did not specifically stipulate a workplace (mechanism, unit), or structural unit as conditions of the employment contract.
Types of transfers:
From the consequences
Does not exclude the subjective right of the employee to demand the provision of the previous job. For temporary transfer
the original (main) obligation is suspended for a certain period with the emergence of a new (temporary) obligation. Upon expiration of the relevant period, the temporary obligation is terminated, and the main one is renewed.
Temporary transfer to another job by written agreement
parties are allowed for a period of up to one year. If the parties agreed on a transfer in order to replace a temporarily absent employee, who, in accordance with the law, retains his place of work until the replacement leaves. If the employee continues to work at the end of the period, the transfer is considered permanent.
Grounds for temporary transfer of an employee at the initiative of the employer:
Extraordinary (natural or man-made disasters, accidents, other emergency situations that threaten the life or normal living conditions of the entire population or part of it). The employer has the right to unilaterally transfer an employee, including without regard to specialty or qualifications, for a period of up to 1 month to prevent relevant circumstances or eliminate their consequences.
The second group of grounds is related to the production needs of the employer (in cases of downtime, the need to prevent destruction or damage to the employer’s property, replacing a temporarily absent employee). If such a need is caused by extraordinary circumstances (for example, downtime due to flooding of production premises due to flooding), then a temporary transfer is permitted without the consent of the employee
for up to 1 month. However, if the temporary work requires lower qualifications, the employer is obliged to obtain the employee’s written consent to such a transfer. If production needs are caused by other reasons (non-extraordinary), temporary transfer is allowed in the general manner by agreement of the parties.
The third group of grounds includes temporary transfers of an employee to another job due to a medical report. If the conclusion of a medical and social examination institution establishes that the employee needs a temporary transfer to another job for a certain period (but not more than 4 months in a row), and the employee refuses the transfer or the employer does not have a suitable job, then the employee for the entire period , specified in the conclusion, is subject to suspension from work.
If, in accordance with a medical report, an employee needs a temporary transfer to another job for a period of more than four months or a permanent transfer, then if he refuses the transfer or the employer does not have the corresponding job, the employment contract is terminated.
An employment contract with the heads of organizations (branches, representative offices), their deputies and chief accountants who, in accordance with a medical report, need a temporary or permanent transfer to another job, if the transfer is refused or the employer does not have the corresponding job, is terminated. The employer has the right, with the written consent of these employees, not to terminate their employment contract, but to remove them from work for a period determined by agreement of the parties. During the period of suspension from work, wages are not accrued to these employees, except for the cases provided for by this Code, other federal laws, collective agreements, agreements, and employment contracts.
Temporary transfer to another job at the initiative of the employee
is an exception to the general rules and is provided by law as a guarantee primarily for pregnant women (Article 254 of the Labor Code of the Russian Federation), if, according to a medical report, continued work in certain production conditions may adversely affect the health of the mother or child. Such a transfer is carried out on the basis of a medical report at the request of a pregnant woman while maintaining the average salary. If the employer does not have a job suitable for a pregnant woman, then she is released from it while maintaining the average wage for all working days missed in connection with this.
Temporary transfer to another job should be distinguished from the concept of a business trip
:
Firstly, a business trip is a trip by an employee by order of the employer for a certain period of time to carry out an official assignment outside the place of permanent work.
It is mandatory for the employee and an unreasonable refusal of it can be considered a violation of labor discipline, and temporary transfer, as a general rule, is possible only with the consent of the employee (by agreement of the parties).
Secondly, unlike a business trip, a temporary transfer can be carried out in the same area and place of work.
Thirdly, a business trip involves the fulfillment of a specific official assignment, and not the assignment of any other duties. In turn, a temporary transfer to another locality or to another place of work means that he must regularly perform a labor function.
Fourthly, in the case of a business trip, the provisions of local regulations of the organization where the official assignment is carried out do not apply to the employee. In the case of a temporary transfer, local regulations apply to the employee in the general manner.
Permanent transfer to another job is usually carried out by agreement of the parties to the employment contract. The subjective right to demand a refund is excluded. Motives for a permanent transfer may include job promotion at the request of the employee; the employer's need to strengthen the department's staff; assessment of the employee’s professional achievements or, on the contrary, his insufficient qualifications; decrease in the employee’s ability to work and others.
From the basis of translation
a. By agreement of the parties
b. At the initiative of the employee (transfer of a pregnant woman to an easier job)
c. At the initiative of the employer
d. At the initiative of third parties (medical and social examination may require the transfer of a person to easier work)
By purpose
— Due to production needs (during downtime, to replace an absent employee)
— Extraordinary circumstances
— To strengthen staffing
— To prevent disability
— Assessing the employee’s merits
Article 72.1. Transfer to another job. Moving
Commentary on Article 72.1
1. In Art. 72.1, introduced by Federal Law No. 90-FZ of June 30, 2006, defines the concepts of “transfer to another job” and “relocation”. Proposed Art. 72.1 the concept of “transfer to another job”, in contrast to the previous one contained in Art. 72 of the Labor Code, formulated more clearly and definitely, but significantly narrowed compared to the previous one. In accordance with the new edition, transfer to another job is a permanent or temporary change in the labor function of the employee and (or) the structural unit in which the employee works (if the structural unit was specified in the employment contract), while continuing to work for the same employer, as well as transfer to work in another area together with the employer. As follows from the content of the above norm, a change in other conditions determined by the employment contract (for example, working hours, wages) does not constitute a transfer to another job, as was the case before. The grounds and procedure for changing the terms of the employment contract determined by the parties are provided for in Art. 74 of the Labor Code, set out in the new edition (see commentary to it).
Transfer to another job is possible only with the written consent of the employee. An exception to this rule is allowed only in the cases specified in Parts 2 and 3 of Art. 72.2 (see commentary to them).
If a transfer to another permanent or temporary job with the same employer is carried out without the written consent of the employee, but he has started performing another job, such a transfer may be considered legal. However, the employee's performance of other work does not relieve the employer of the obligation to obtain written confirmation from the employee of such consent to the transfer.
In cases where an employee transferred to another job with the same employer has begun performing this work, but believes that the transfer was carried out in violation of current legislation, he can appeal the illegal transfer to the labor dispute resolution authorities.
2. Transfer to another permanent job or temporary transfer to another job with the same employer, as well as transfer to permanent work in another locality together with the employer, are formalized by order (instruction) of the employer. The corresponding entry about the transfer is made in the work book.
When transferred to work in another area, employees are paid appropriate compensation: the cost of travel for the employee and his family members, the cost of transporting luggage, expenses for settling in a new place, etc. The specific amounts of reimbursement of expenses are determined by agreement of the parties to the employment contract (Article 169 of the Labor Code).
Another area should be understood as an area outside the administrative-territorial boundaries of the corresponding locality (clause 16 of the Resolution of the Plenum of the RF Armed Forces of March 17, 2004).
A transfer to work from one locality to another, even within the same administrative district, is considered as a transfer to another locality, regardless of the availability of a bus or other regular service between these points.
The employee’s refusal to be transferred to another location together with the employer is grounds for termination of the employment contract with him under clause 9 of Art. 77 TK. Refusal to transfer to a branch or representative office located in another locality cannot be grounds for termination of an employment contract with an employee if the employer himself does not move to this other locality (see commentary to Article 77).
When employees are dismissed due to refusal to be transferred to another location together with the employer, they are paid severance pay in the amount of 2 weeks of average earnings (Part 3 of Article 178 of the Labor Code).
3. A transfer to work for another employer can be carried out at the request of the employee, stated in writing, or with his written consent, if the initiative for the transfer comes from the employer.
Transfer to a permanent job with another employer entails a change in one party to the employment contract, therefore it is considered by the legislator as an independent basis for termination of the employment contract (clause 5 of Article 77 of the Labor Code). An employee invited to work in writing by way of transfer from another employer by agreement between the heads of organizations cannot be denied an employment contract (see commentary to Article 64). In this case, records of dismissal and hiring are made in the employee’s work book, indicating the order in which the dismissal was carried out in connection with the transfer - at the request of the employee or with his consent (clause 6.1 of the Instructions for filling out work books).
4. Transfer to another permanent job or temporary transfer to another job with the same employer is possible under various circumstances. In this case, the initiative for transfer can come from both the employer and the employee himself (for example, due to the fact that he has improved his qualifications).
In a number of cases, the employer has an obligation to transfer the employee with his consent to another job, for example, in the case when the employee needs, in accordance with a medical report, to be provided with another job (see commentary to Article 73).
In cases where the job to which the employee is transferred in accordance with a medical report is lower paid, the employee retains his previous average earnings for a month from the date of transfer, and in the case of transfer due to a work injury, occupational disease or other damage to health, related to work - until permanent disability is established or until the employee recovers (Article 182 of the Labor Code).
If an employee refuses to be transferred to another job in accordance with a medical report, as well as if the employer does not have a recommended job, the employment contract with the employee is terminated on the basis of clause 8 of Art. 77 of the Labor Code, i.e. due to health conditions (see commentary to paragraph 3 of Article 77).
In certain cases provided for by law, the employer is obliged to offer the employee a transfer to another job. Such an obligation may arise, for example, in the event of a reduction in staff, if the employer has another job for the employee subject to reduction (see commentary to Part 2 of Article 81). The employer is obliged to offer another job available to a person who, based on the results of certification, is recognized as not suitable for the position held (see commentary to Article 81).
5. From the transfer of an employee to another job, one should distinguish him from moving from the same employer to another workplace, to another structural unit located in the same area, or being assigned to work on another mechanism or unit. Such a move, in accordance with Part 3 of the commented article, does not require the consent of the employee, unless this entails a change in the terms of the employment contract determined by the parties (see commentary to Article 57).
In other words, a change in a workplace or structural unit can be recognized as a relocation only if, when concluding an employment contract, this specific workplace (mechanism, unit) or structural unit was not specified and is not provided for in the employment contract. If a specific workplace (mechanism, unit) or structural unit is specified in the employment contract, then it is its mandatory condition and, therefore, can only be changed with the written consent of the employee.
This position was expressed in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004. As explained by the Supreme Court of the Russian Federation, if in the employment contract the employee’s place of work was determined indicating a specific structural unit, then it must be assumed that a change in the structural unit of the organization is possible only with written consent of the employee, since in this case this entails a change in the essential terms of the employment contract. A structural unit of an organization should be understood as branches, representative offices, as well as departments, workshops, sections, etc. (clause 16 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004).
Commentary on the Labor Code of the Russian Federation as of July 10, 2006 Executive editor Yu. P. Orlovsky
The difference between transfer to another job and relocation
So, to summarize, let’s note the main differences between translation and movement:
- Essential terms of the agreement. When translated, they change, but when moved, they do not. Therefore, a transfer may require the employee to have additional skills, qualifications or education that are not needed when relocating.
- Labor function. It also changes with translation and remains the same if moved.
- Place of work. The employee cannot be moved outside the locality, while transfer to another area is possible.
- Consent of the employee himself. When transferring, it is mandatory, with rare exceptions, and the transfer does not depend on the will of the employee.
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