Change of workplace without agreement with the employee. Relocating a worker

Differences between movement and translation

In the Labor Code there is also such a concept as transfer of an employee. How is it different from moving?

The main difference is that when moving, the worker’s labor function does not change, that is, he continues to do the same work, only to do it at a different workplace, in a different office or on a different machine.

When transferring, the actual labor function of the employee changes, and this means that the essential conditions change employment contract.

This is the main difference between movement and translation, although there are many nuances.

For example, if an employee’s employment contract specifies a specific unit (machine) on which he is obliged to perform his work, then assigning him the same work, but on a different device, will entail a change in the essential terms of the employment contract. Which, accordingly, can already be considered a translation.

Also, if an employee’s employment contract specifies his place of work as the planning department, but they want to transfer him to the economic department, this will also be a change in the employment contract.

But such nuances are quite rare. Therefore, transfer is a change in labor function, but displacement is not.

Also, when moving, there is no need to obtain the employee’s consent.

That is, the employer can move him without consent, but if the initiative to move comes from the employee, then the employer’s consent is required.

Procedure for relocating an employee

Since personnel changes occur even when moving, you should not neglect documentation.

What kind of employee movement should be documented?

It is clear that moving from one office to another is not worth registering, but the replacement of units, components and machines should be recorded.

This is necessary not only for order in personnel work, but also from the point of view of labor protection, since such a replacement implies briefings and training of the employee.

Procedure for moving:

• making a decision to move. It can come from both the employee and the employer. In the first case, you can simply write a memo. The employee must express his wishes in a statement addressed to the manager.
• direct movement of the employee. You can draw up an order in free form, since, unlike translation, there is no provision for this case unified form. Transfer order standard form T-5 can be downloaded. Also, during the transfer, an application can be submitted by the employee.

The order contains the form of movement and new equipment. New structural department, etc.

Please note that the job title should not change either. If it is changed, even if the job function remains unchanged, this will already be considered a transfer, and accordingly it will be necessary to make changes to work book, this is not required when moving.

Is there an additional agreement to the employment contract when relocating?

This depends on the type of movement, if the employee is transferred to another structural premises located in the same area, but at a different address, then the changes should be recorded, but if he simply moved to another floor, then not.

Therefore, movement is a very simple form personnel changes, which does not require global documentary preparation and changes to the employee’s documents.

A characteristic feature of an employment contract is its stability, associated primarily with the certainty and stability of the labor rights and obligations of the employee and the employer, the employee’s labor function, and the place of its performance. At the same time, developing social relations, changes in supply and demand for goods, works and services, etc. inevitably imply the possibility of changing the employment contract.

A change in an employment contract is understood as a change or transformation of one or more mandatory or additional terms of the contract determined by the parties to the employment contract upon its conclusion, carried out by mutual agreement of the parties, with the exception of cases provided for by the Labor Code of the Russian Federation.

The Labor Code provides for the following forms of changing an employment contract: changing the content of the contract by agreement of the parties (Article 72); transfer to another job (Articles 72 1, 72 2, 73); changing the essential terms of the contract without changing the employee’s labor function (Article 74).

In addition, the employment contract (its derivative terms) must be changed as a result of the adoption of a new labor law norm.

Refusal to perform work during a transfer carried out in compliance with the law is recognized as a violation of labor discipline, and absence from work is considered absenteeism.

Labor legislation prohibits requiring an employee to perform work not stipulated by the employment contract. If such a need arises due to certain circumstances, then since the essence of this work will be different, its implementation for the employee will mean a change in the labor function or other conditions of the employment contract determined by the parties when concluding it.

As stated in Art. 72 1 of the Labor Code of the Russian Federation, transfer to another job is a permanent or temporary change in the labor function of an employee and (or) the structural unit in which the employee works (if structural subdivision was specified in the employment contract), while continuing to work with the same employer, as well as transferring to work in another area together with the employer.

It is extremely important that the law states that transfer to another permanent job permitted only with the written consent of the employee. If the transfer was made without the employee’s written consent, but he began performing other work, 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 of consent to the transfer from the employee.

Thus, the following are considered as translation:

a) change in job function (promotion is also a transfer and requires the employee’s consent);

b) change in the structural unit in which the employee works (if it was specified in the employment contract);

c) change of location of the employer. In addition, at the written request of the employee or with his written consent, the employee may be transferred to a permanent job with another employer.

There are several classifications of translations. Thus, depending on the timing, transfers to another permanent and other temporary job (or transfers permanent and temporary) differ. Transfers to another permanent job are carried out with the consent of the employee, while temporary transfers are possible without the consent of the employee, i.e., they are mandatory for him, and refusal to transfer without sufficient grounds is considered a disciplinary offense.

Depending on the place of transfer, transfers to another job vary:

a) within the organization (a team of employees working for an individual entrepreneur);

b) together with the organization to another area;

c) to another organization in the same area.

It is also impossible to exclude the possibility of transferring an employee to another organization located in another area. Transfers also vary depending on the reason for the transfer. These reasons may be related to personal characteristics employee, his social status or be of a production nature.

Transfer to another permanent job with the same employer is possible under various circumstances. In this case, the initiative can come both from the employer (his representative), and from the employee himself (for example, in connection with improving the employee’s qualifications, and the employer can, but is not obliged to satisfy such a request), as well as from third parties (medical authorities due to employee illness, etc.).

In some cases, the employer is obliged to transfer the employee, with his consent, to another job. So, according to Art. 73 of the Labor Code of the Russian Federation, an employee in need of transfer (permanent or temporary) to another job in accordance with a medical certificate issued in the manner established by federal laws and other regulations legal acts Russian Federation, the employer is obliged to transfer to another job he has that is not contraindicated for the employee due to health reasons.

As for the transfer to a permanent job with another employer, it is carried out by agreement between the employers (their representatives) at the request or with the consent of the employee himself. When an employee is transferred to another employer, the subject composition of the employment legal relationship changes: one employment contract is replaced by another agreement concluded by the employee with another employer. The employment contract at the previous place of work is terminated according to clause 5 of Art. 77 Labor Code of the Russian Federation. Therefore, strictly speaking, there is not a transfer to another job, but a termination of the employment contract due to the employee’s transfer to another employer.

The employee’s refusal to be transferred to another location together with the employer is also grounds for termination of the employment contract with him (Clause 9, Article 77 of the Labor Code of the Russian Federation). Another locality should be understood as a locality outside the administrative-territorial boundaries of the corresponding locality (clause 16 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2). However, it should be borne in mind that quite often economic activity the employer is not limited to any one area (for example, logging, construction organizations). Since the specifics labor relations in such cases lies in the employee’s fulfillment of his labor responsibilities at facilities located in different locations, the movement of a worker from one facility to another cannot be considered as a transfer.

The concept of moving to another job should be distinguished from transfer to another job. workplace. It means moving an employee from the same employer to another workplace, to another structural unit located in the same area, entrusting him with work on another mechanism or unit, unless this entails a change in the terms of the employment contract determined by the parties (Part. 3 art. 72 1 Labor Code of the Russian Federation). The transfer does not require the employee’s consent, but it is prohibited to move (as well as transfer) an employee to a job that is contraindicated for him due to health reasons.

By general rule, moving to another workplace is not a transfer, since it does not change the labor function or other terms of the employment contract, therefore it does not require the employee’s consent. However, if the employment contract provides for the performance of work at a specific workplace, then the assignment of work to another place, mechanism, etc. is a transfer and requires the consent of the employee.

In addition, if in the employment contract the employee’s place of work was determined indicating a specific structural unit, a change in the structural unit of the organization is possible only with the written consent of the employee, since in this case this entails a change in the labor conditions determined by the parties agreement. At the same time, a structural unit of an organization should be understood as branches, representative offices, as well as departments, workshops, sites, etc.

In accordance with Part 1 of Art. 74 of the Labor Code of the Russian Federation, it is allowed to change the terms of the employment contract determined by the parties on the initiative of the employer for reasons related to changes in organizational or technological working conditions, while the employee continues to work without changing his job function. Changes in technological working conditions are expressed in changes in equipment and production technology (in the introduction of new machines and mechanisms, in changes in the processes of their operation). Changes in organizational working conditions should be understood as structural reorganization of production, as well as changes in the work and rest regime of workers, in the management of the labor process, its standardization, accounting, forms and systems wages and so on.

The employer is obliged to notify the employee in writing of the terms of the employment contract determined by the parties, as well as the reasons that necessitated such changes, no later than two months in advance, unless otherwise provided by the Labor Code of the Russian Federation. At the same time, changes to the terms of the employment contract cannot be introduced that worsen the employee’s position in comparison with the terms of the collective agreement or agreement.

If the employee does not agree to continue working in the new conditions, then the employer is obliged to offer him in writing another job available to him (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower-paid job ) that the employee can perform taking into account his state of health. In this case, the employer must offer the employee all the vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other locations, if so provided collective agreement, agreements or employment contract. In the absence of the specified work or the employee refuses the proposed work, the employment contract is terminated in accordance with clause 7, part 1, art. 77 Labor Code of the Russian Federation.

In the event of a dispute between an employee and an employer regarding the termination of an employment contract, the employer is obliged to provide evidence confirming that the change in the terms of the employment contract was precisely a consequence of changes in the organization of labor or in the organization of production. In the absence of such evidence, termination of the employment contract under clause 7, part 1, art. 77 of the Labor Code of the Russian Federation or a change in the terms of the employment contract determined by the parties cannot be recognized as legal.

In the event that changes in organizational or technological working conditions may lead to mass layoffs of workers (the criteria for mass layoffs are determined in industry and (or) territorial agreements, but currently they are established by a decree of the Government of the Russian Federation dated February 5 1993 No. 99 “On the organization of work to promote employment in conditions of mass layoffs”), the employer, in order to preserve jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization and in the manner established by Art. 372 of the Labor Code of the Russian Federation for the adoption of local regulations, introduce a part-time working day (shift) and (or) part-time working week for up to six months. The cancellation of part-time work earlier than the period for which they were established is carried out by the employer, taking into account the opinion of the elected body of the primary trade union organization.

As you can see, the legislator assumes that the circumstances that led to the reduction in working hours are transitory and temporary in nature and after they are eliminated, employees will be given a working time regime stipulated by the employment contract. If the employee refuses to continue working under the terms of the corresponding working hours, then the employment contract is terminated in accordance with clause 2, part 1, art. 81 of the Labor Code of the Russian Federation (i.e., to reduce the number or staff of employees) with the provision of appropriate guarantees and compensation.

By agreement of the parties, the contents of the employment contract, including any of its terms determined by the parties, may be changed at any time at the initiative of any of the parties to the contract. Such an agreement must be concluded in writing. However, changes that worsen the employee’s position in comparison with the conditions contained in labor legislation and the collective agreement (agreement) should not be allowed.

Relocation of an employee is dedicated to Part 3 of Art. 72.1 of the Labor Code of the Russian Federation, which states that the employee’s consent is not required to move him from the same employer to another workplace, to another structural unit located in the same area, or to assign him work on another mechanism or unit, if this does not entail entails changes in the terms of the employment contract determined by the parties.

That is, when moving they change:

- workplace;

- structural subdivision;

- or the mechanism (unit) on which the employee works.

But! At the same time, the following remain the same (do not change):

— labor function;

- employer;

— the area in which the employee’s workplace is located;

— any other terms of the employment contract.

Determining the place of work

That is, in order to accurately qualify a change in working conditions as a movement, it is necessary to look at the employment contract with a specific employee, namely how the place of work is defined in it, which, according to Art. 57 of the Labor Code of the Russian Federation is a condition mandatory for inclusion in an employment contract.

There is no precise indication of how the place of work should be determined in the Labor Code. It is unclear from the legislation whether it is enough to indicate only the name of the employer or whether its location should also be indicated.

At the same time, the Code in Art. 57 establishes the rule according to which in an employment contract with an employee performing his labor function in a separate structural unit located in another locality, this structural unit and its location must also be indicated as the place of work. Applying this rule by analogy, we can conclude that the location of the employer should be indicated as the place of work in the employment contract. At the same time, in accordance with Art. 54 Civil Code of the Russian Federation location legal entity is his place state registration, which, in turn, is carried out at the location of its permanent executive body, and in the absence of one - another body or person having the right to act on behalf of a legal entity without a power of attorney.

It is not necessary to indicate in the employment contract a non-separate structural unit (that is, located in the same area) into which the employee is hired (department, site, workshop, faculty, department, etc.), as well as to specify the workplace in any other way. In this case, structural units should be understood as branches, representative offices, as well as departments, workshops, sections, etc., and by other locality - an area outside the administrative-territorial boundaries of the corresponding locality (clause 16 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated 17.03 .2004 N 2 “On the application by courts of the Russian Federation Labor Code Russian Federation", ed. dated September 28, 2010, hereinafter referred to as Resolution No. 2).

The answer to the question whether it is in the employer’s interests to specify in the employment contract the specific workplace of the employee, down to the department or unit (mechanism) in which the employee works, or not, is ambiguous.

To clarify or not?

For the purpose of a more efficient and rapid “transfer” of personnel from one structural unit to another within the same locality, from one unit (mechanism) to another, it makes sense not to specify this clause of the employment contract, since in this case this “transfer” will be qualified as a movement and will not require the employee’s consent.

On the other hand, indicating a specific workplace in an employment contract is necessary if the employee performs his job function at a location other than the location of the organization; this can help the employer, for example, if it is necessary to prove the absence of an employee from the workplace.

So, if, when changing the place where an employee performs a labor function, not a single condition of the employment contract changes, then this case can be qualified as a transfer and is possible without the consent of the employee.

Example. M. worked as a sales manager for financial products at Svyaznoy Logistics CJSC in Naro-Fominsk, Moscow Region. The employment contract concluded between the parties provided for the plaintiff’s work in the structural unit of CMS 299 Naro-Fominsk-5. Based on the order, M. was transferred to the structural unit of CMS 252 Naro-Fominsk-3 with the same salary and in the same position. M. filed a lawsuit against Svyaznoy Logistics CJSC, citing the fact that he was transferred to work in violation of the law, that is, without his consent.

The court rejected the claim, guided by the fact that the plaintiff’s consent to such a move was not required, since the structural divisions are located in the same city, and the plaintiff’s labor function did not change. Judicial panel for civil cases The Moscow City Court left the decision of the Simonovsky District Court of Moscow dated January 30, 2012 unchanged, and M.’s appeal was not satisfied (1).

Changing the terms of the contract

In the case when an employee, when changing his place of work (even if not specified in the employment contract), changes any condition of the employment contract (wage, job function, etc.) or the employee has additional responsibilities, then this change cannot be qualified as a transfer ( in this case, there will be a transfer or other change in the employment contract), since from the content of Art. 72.1 of the Labor Code of the Russian Federation it follows that movement without the consent of the employee is allowed only insofar as the employee continues to perform the work (labor function) stipulated by the employment contract, and no terms of the employment contract established by agreement of the parties are changed.

Example. E. was hired by the Federal State Unitary Enterprise “Departmental Security of Industrial Facilities of the Russian Federation” in the Tatarstan branch of Naberezhnye Chelny as a firefighter in fire station No. 1. 03/21/2012 E. was transferred to fire station No. 3 as a senior firefighter without his consent , while he was plan approved completing an internship, and after the plaintiff transferred to PCH-3 for further work he needed to pass a qualifying test.

The court declared E.'s move to another part illegal, since the plaintiff had additional duty in connection with the transfer - passing the test. By moving by virtue of Art. 72.1 of the Labor Code of the Russian Federation is considered to be an assignment of work on another mechanism or unit if this does not entail the emergence of additional responsibilities (that is, the previous terms of the employment contract are preserved) in the form of passing a test, exam, etc. The defendant's reference to the fact that the plaintiff's salary and job title were retained is based on an erroneous interpretation of the current labor legislation (2).

Restriction on movement

The only restriction on the movement of an employee is the prohibition to transfer or move an employee to a job that is contraindicated for him for health reasons, enshrined in Art. 72.1 Labor Code of the Russian Federation.

However, when moving, there is no obligation on the employer to request from the employee a document confirming that work is not contraindicated for the latter due to health reasons.

It seems that in in this case concealment by an employee of the fact of a prohibition to perform certain works due to health reasons may be grounds for recognizing the fact as abuse of rights on the part of the employee.

We believe that it is possible to use here, by analogy, clause 27 of Resolution No. 2, which states that when considering cases of reinstatement at work, it should be borne in mind that when implementing the guarantees provided by the Labor Code of the Russian Federation to employees in the event of termination of an employment contract with them, the general legal principle of inadmissibility of abuse of rights, including by employees, must be observed; in particular, it is unacceptable for an employee to conceal temporary disability during his dismissal from work.

Employee's duty

The employee must obey the employer's lawful order to move; The Constitutional Court has repeatedly pointed out that the employer, in order to implement effective economic activity and rational property management has the right to independently, under his own responsibility, make the necessary personnel decisions (selection, placement, dismissal of personnel) (3), and the employee’s refusal to comply with the employer’s order to move may be grounds for imposition on the employee disciplinary action according to Art. 192 Labor Code of the Russian Federation.

Example. Due to production needs, the forwarding driver M. ZAO Ostrovsky Bread Factory was transferred from a GAZ-33022 car to a GAZ-53 car. However, M., being on the territory of the enterprise, did not comply with the order of the head of the motor transport section O. to carry out repair work in a GAZ-53 car, in connection with which an order was signed to announce M.’s remark. The fact that M. did not begin repairing the car assigned to her was not disputed by her.

The court came to the conclusion that this order does not contradict the requirements of Part 3 of Art. 72.1 of the Labor Code of the Russian Federation, since the GAZ-33022 car was not specified as the plaintiff’s workplace. According to the terms of the employment contract, M. assumed the obligation to manage trucks(road trains) of all types and carry out Maintenance car, not related to engine disassembly and repair.

Refusal to perform work when moving in compliance with the law is a violation of labor discipline (4).

Legal consequences

Often, in order to avoid a more complex procedure for changing the terms of an employment contract, which involves obtaining the written consent of the employee on the basis of Art. Art. 72 and 72.1 of the Labor Code of the Russian Federation, employers replace the actual transfer with the concept of “movement”, formalizing it with an order without obtaining the employee’s consent. However, this practice is illegal and may have a number of consequences. negative consequences for the employer.

In particular, in judicial procedure worker movement may be declared illegal, the employee may demand payment of the difference in wages for the time he performed lower-paid work or wages for the period of forced absence, as well as compensation for moral damage.

Example . On January 10, 1999, an employment contract was concluded with plaintiff B. to work as a nurse in the 4th department of the Magadan Regional Psychoneurological Dispensary full time, with shift work, for an indefinite period. By order of the chief physician of the Magadan Regional Psychoneurological Dispensary dated June 27, 2011, the plaintiff was transferred to work in the same position in department No. 2 to serve children.

Satisfying the claims, the court came to the conclusion that in this case the employer transferred the plaintiff to work from department No. 4 to department No. 2, and not moved her, since the specific structural unit (department No. 4) specified in the employment contract was changed B. The court indicated that the essential terms of the plaintiff’s employment contract had changed, therefore, in this situation, a move to another structural unit should be considered a transfer, which is possible only with the consent of the employee. The plaintiff did not give written consent for her transfer to department No. 2. Under such circumstances, the court declared the order of the State Department of Health of June 27, 2011 to move B. illegal. Having established a violation of the employee’s labor rights, the court, in accordance with Part 9 of Art. 394 of the Labor Code of the Russian Federation recovered compensation for moral damage in favor of B. (5).

Moreover, refuse work not provided for by the employment contract, resorting to self-defense of your violated rights on the basis of Art. 379 TK. This means that in the event of an illegal transfer, the employee can, by warning the employer in writing, suspend work (with the exception of those types of work for which there is a direct ban on self-defense by federal law). The legislation does not resolve the issue of whether the employee has the right to leave the workplace until the violations are eliminated.

Disciplinary responsibility

However Art. 379 of the Labor Code of the Russian Federation specifically provides that for the time an employee refuses to perform work, he retains all labor rights. At the same time, according to Art. 380 of the Labor Code of the Russian Federation, the employer does not have the right to prevent employees from exercising self-defense of labor rights, including bringing these employees to disciplinary liability.

This period of time will not be qualified as absenteeism (according to pp. “a” clause 6, part 1, art. 81 According to the Labor Code of the Russian Federation, absenteeism is the absence of an employee from the workplace without good reason during the entire working day (shift), regardless of its duration, as well as absence from the workplace for more than 4 hours in a row), since the employee has a good reason for absence from work . Moreover, the time an employee refuses to work as part of self-defense must be paid to the employee as time of forced absence.

This position is also shared by the Chairman of the Judicial Panel for Labor and Social Cases of the Judicial Collegium for Civil Cases of the Armed Forces of the Russian Federation, Gorokhov B.A. : “...in this situation, refusal to work is a forced measure of the employee to self-protect his rights.

And for him it is a forced absence. If this is a forced absence, then it must be paid in full. Article 236 of the Labor Code of the Russian Federation speaks of full compensation for property damage caused to an employee by the illegal actions of the employer” (6, p. 59).

Example. K. filed a lawsuit against Krasnoborsky Lespromkhoz OJSC for reinstatement at work and recovery of wages for the period of forced absence. In support of the claim, he indicated that he worked as a mechanic repairing logging equipment in the Novoshinsky workshop of the OJSC. On September 10, 2003 he was fired pp. “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation - for absenteeism committed on 09.09.2003, which he did not commit, since on that day the head of the workshop S. sent him to work on a delimbing machine. He refused to comply this work, which was not part of his job duties. In addition, he did not have permission to operate a delimbing machine. S. removed him from work, saying that there was no other work, and therefore he was free. Due to this, he left his job.

The court of first instance granted the claim, which the court of second instance found correct (7).

Bibliography

1. Appeal ruling of the Moscow City Court dated May 30, 2012 in case No. 11-8200 [ Electronic resource]. SPS "ConsultantPlus". Access mode is limited.

2. Appeal ruling of the Supreme Court of the Republic of Tatarstan dated September 13, 2012 in case No. 33-9332/2012 [Electronic resource]. SPS "ConsultantPlus". Access mode is limited.

3. Determination of the Constitutional Court of the Russian Federation dated July 15, 2008 N 412-О-О [Electronic resource]. SPS "ConsultantPlus". Access mode is limited.

4. Cassation ruling of the Pskov Regional Court dated March 3, 2009 in case No. 33-154 [Electronic resource]. SPS "ConsultantPlus". Access mode is limited.

5. Cassation ruling of the Magadan Regional Court dated January 31, 2012 No. 33-101/12 in case No. 2-5510/11 [Electronic resource]. SPS "ConsultantPlus". Access mode is limited.

6. Gorokhov B.A. Labor disputes. What they don’t teach students: Educational and practical guide. M.: Prospekt, 2010.

7. Review of cassation and supervisory practice of consideration of civil cases by the courts of the Arkhangelsk region for the IV quarter of 2003 [Electronic resource]. SPS "ConsultantPlus". Access mode is limited.

N. Chetvergova K. Yu. Sc., Associate Professor, Department of Civil and labor law Faculty of Law Russian University Friendship between nations

Relocating an employee means continuation of work in the same organization and in the same area, but at another workplace, in another department or on other equipment, while maintaining the labor function provided for by the contract.

This rather cumbersome definition can be derived on the basis of Article 72.1 of the Labor Code.

Displacement is inextricably linked with another legal phenomenon, in which there is a change in working conditions - transfer.

Article 72.1 of the Labor Code of the Russian Federation. Transfer to another job. Moving
(introduced Federal law dated 06/30/2006 N 90-FZ) Transfer to another job - a permanent or temporary change in the labor function of an 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.

Transfer to another job is permitted only with the written consent of the employee, except for the cases provided for in parts two and three of Article 72.2 of this Code.

At the written request of the employee or with his written consent, the employee may be transferred to permanent work with another employer. In this case, the employment contract at the previous place of work is terminated (clause 5 of part one of Article 77 of this Code).

The employee’s consent is not required to move him from the same employer to another workplace, to another structural unit located in the same area, or to assign him work on another mechanism or unit, unless this entails a change in the terms of the employment contract determined by the parties. It is prohibited to transfer or relocate an employee to work that is contraindicated for him due to health reasons.
.

What is the difference between movement and translation?

Based on the norms of labor law, we can distinguish three main points that distinguish a transfer from a relocation.

The working conditions stipulated in the employment contract change only upon transfer. Relocation is provided for cases when the provisions of the contract remain unchanged.

The employee's job function does not change. The labor function consists of fulfilling a certain list of responsibilities assigned to the employee by the employment contract, as well as local regulations.

Law does not require the employer to obtain the employee’s consent to the so-called intra-company transfer. The employer must notify his employee in advance about the upcoming changes, but he does not have the right to refuse to work in a new place or in a new structural unit.

Kinds

There are three types of movements.

Relocating a worker from one workplace to another. Often, in small companies Such movements are not formalized at all. A person moves to another table or continues to work in another office, and rarely any friction arises with the management of the organization. As for large enterprises and factories, this type of movement may be associated with work in another building, about which the employee must be informed in advance.

Moving to another structural unit. A structural unit can be a department, department, service, or branch of an organization. As you know, such structures are not always located at the same address. In order for an employee’s transfer to another organizational unit, or the so-called “job-related transfer,” to remain moving, such a unit must be located in the same area. By “terrain” we mean the entire territory within the boundaries of a populated area.

A populated area can be a city, an urban settlement, a rural settlement (village, village, hamlet, village). Districts and regions are administrative-territorial entities, not populated areas.

Employee work is assigned to another unit, mechanism, equipment, etc.. For example, the driver of the organization is assigned a new car, in which he will also deliver passengers or cargo, as in old car. His work function will not change in any way.

The main thing is that such a change in the tool of labor does not contradict the list of job responsibilities established by the employment contract and job description.

In the employment contract, the parties can indicate the structural unit or workplace where the employee will work. In the event that these conditions change, it will not be a displacement, but a transfer.

Decor

As already noted, moving an employee without his consent is quite possible and the Labor Code of the Russian Federation allows this. Therefore, it is drawn up accordingly act of the head of the organization(for example, by order or instruction). This document must indicate where the employee was transferred, what conditions of his work will change and from what date.

There is no need to increase the organization’s document flow and issue notices of movement or other similar papers. Still, moving an employee is not dismissal. It will be much easier hand over a copy of the relevant order to the employee against signature.

The employee should be familiarized with this document in advance. If the employee is not properly informed about the move and its basis, then the manager will not have the opportunity to demand that he comply with the new working conditions.

Ban

The Labor Code does not establish any conditions that would prevent the transfer of an employee. It is possible, however, based on the provisions, to imagine a situation where an employee has any medical health restrictions confirmed by the relevant document. And this circumstance prevents him from working, for example, at another workplace or with another unit. The practical application of the provisions of this article, however, is not a reason for dismissal.

Therefore, you should familiarize yourself with the employee’s personal file before issuing an order to move him. Perhaps his health does not allow him to work in new conditions.

It is always better to find a compromise between the interests of the employee and the employer. If an employee is upset about his transfer, then no legal provisions will force him to work with full dedication. The atmosphere in the team should be protected.

Relocating a worker often confused with its translation and vice versa. In this article we will look at what movement is, how it is carried out and how it differs from translation.

The concept of movement according to the Labor Code of the Russian Federation

Under the concept employee movements Labor Code of the Russian Federation in Part 3 of Art. 72.1 combines several possible actions:

1. Changing an employee's workplace. Its definition is given in Art. 209 of the Labor Code of the Russian Federation is a place where an employee must be or where he must arrive in connection with the work function performed and which is controlled by the employer directly or indirectly.
2. Transfer of the staff unit in which the employee works to another structural unit. Such a division refers to both separate divisions (branches, representative offices) and other components organizational structure the enterprise as a whole or a separate division (divisions, sections, workshops). Such a transfer, in order to be recognized as a movement, must be within the same area (within the boundaries of the populated area where the workplace is located).
3. Assignment to work on another unit/mechanism.

All specified actions will be recognized movement of an employee only if none of the terms of the employment contract changes as a result of their implementation. Moreover, this means any conditions, and not just those that are required to be agreed upon in the text of the contract (Article 57 of the Labor Code of the Russian Federation).

Otherwise, the listed movements of the employee are recognized as changes to the agreed terms of the employment contract, and for their implementation the Labor Code of the Russian Federation provides for a more complex procedure than for employee movements(v. 72).

For example, the driver’s employment contract states that he is obliged to work on a specific car (indicating the make, model, etc.). It is not at all necessary to specify such conditions under the Labor Code of the Russian Federation. But an order to perform work on another car will already constitute a change in the terms of the employment contract and will require complicated registration.

Relocation order - how to fill out and where to get a sample

To implement employee movements it is enough for the employer to issue an administrative document, for example an order. There is no need to ask the employee for consent. There is no standardized form for a movement order, so it should be issued in free form.

1. Usually orders are issued on company letterhead (if available at the enterprise). Mandatory details of orders are date, serial number and name.
2. The order consists of a preamble and a main part. The preamble should refer to the document in connection with which the transfer is being made (if any), and also indicate that the terms of the employment contract do not change.
3. The order must be signed by an authorized person: without a power of attorney - by the head of the organization or another employee, if his ability to sign such documents without it is provided for by the charter; or by any person with the appropriate power of attorney.
4. The order should provide a place for the employee in respect of whom the order is issued to mark familiarization.

A sample relocation order can be found on our website.

Order for worker movement must be brought to the attention of the latter against receipt. If he refuses to sign for familiarization, then this should be recorded in the order itself, attesting to the fact of refusal with the signatures of several witnesses.

A worker’s refusal to comply with an order to move can be regarded as a disciplinary offense (determination of the RF Armed Forces dated June 18, 2010 No. 25-B10-3).

The difference between moving to another workplace or another department and transfer

The designated procedures differ in legal consequences and conditions for their implementation.

The term “translation” in the Labor Code of the Russian Federation is used in relation to several different situations (Part 1 of Article 72.1):

1. Change job responsibilities(labor function).
2. Change of unit when it is specified in the employment contract.
3. Transfer to work in another locality (due to a change in the location of the employer or its branch).

The listed situations are combined common feature- changing the terms of the employment contract. This is the fundamental difference between displacement and translation.

Moreover, translation, unlike employee movements, as a general rule, requires the written consent of the employee - the employer’s order alone is not enough (although it will also need to be issued). Moreover, the employee’s will must be expressed by signing the appropriate additional agreement to the employment contract. Involuntary transfer is allowed only temporarily and in exceptional cases - for example, to eliminate the consequences emergency situations(Article 72.2 of the Labor Code of the Russian Federation).

Horizontal relocation to another office - what rules are provided by the Labor Code of the Russian Federation?

As can be seen from the above, an action such as changing a structural unit may in one case qualify as a transfer, and in another - as worker movement.

Many employers have not one, but several offices in the territory of one locality (which may or may not have the status of separate divisions). And when the need arises movement of an employee to another office, the following situation is possible: the employee does not agree with the move and refuses to go to work at the new address. The legality of such a refusal depends on specific circumstances:

1. The employment contract specifies the structural unit. This means that translation rules apply. This means that an employee has every right to refuse to go to work in another office, and he cannot be punished for this (decision of the Moscow Regional Court dated June 15, 2010 in case No. 33-11570, determination of the Moscow City Court dated April 16, 2012 in case No. 33-9062).
2. The employment contract does not contain information about the unit. In this case, the employee’s consent to work in another office is not required, and for failure to comply with the order to move, he can be brought to disciplinary liability in accordance with Art. 193 Labor Code of the Russian Federation.

Should the structural unit be indicated in the employment contract?

Thus, the need for the employee’s written consent depends on whether the structural unit is indicated in the employment contract. It will be much more convenient for an employer to make personnel movements if the employment contracts do not include information about the specific department where the employee is to work. It is enough to indicate the locality as the place of work.

But let us recall that, according to para. 2 hours 2 tbsp. 57 of the Labor Code of the Russian Federation, when hiring in separate division(for example, a branch or representative office) that is located in a location other than the parent organization, locality, be sure to indicate the department and its address in the text of the employment contract. Accordingly, such employees can be transferred to an office at a different address only with their consent.

And, even if the structural unit is not specified in the contract, you need to answer the question: will at least one of its conditions change when moving to another office? For example, a change in work mode or job responsibilities is possible. If the answer to this question is positive, it is impossible to do without obtaining the worker’s consent and concluding an agreement with him.

Thus, the court declared it illegal worker movement to another office, since as a result of this event he had an additional responsibility ( appellate ruling Supreme Court of the Republic of Tatarstan dated September 13, 2012 in case No. 33-9332/2012).

Thus, when making any personnel movements, the employer should carefully study the terms of the employment contract. After all, the qualification of the employer’s actions and their legality depend on whether at least one of these conditions changes.