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Transfer of a worker to another job. Transfer to another job is

Classification of transfers to another job . Depending on the term, permanent and temporary transfers are allocated. With a permanent translation, the terms of the contract change permanently, i.e. other work is provided for an indefinite period. Temporary transfer retains for the employee permanent job.

A permanent transfer to another job is called because the previous job is not retained by the employee, but another job, therefore, he performs constantly.

Based on the meaning of Article 72.1 of the Labor Code, all permanent transfers can be classified according to a change in job:

1) transfer to another job with the same employer;

2) transfer to work in another locality together with the employer;

3) transfer of an employee at his written request or from his written consent to work for another employer.

Based on the analysis of labor legislation, it can be concluded that the transfer of an employee to another permanent job with the same one is also carried out under the following circumstances:

1) if, in accordance with a medical report, the employee needs to be permanently transferred to another job (part 3 of article 73 of the Labor Code);

2) in the event of a change in the conditions determined by the parties employment contract for reasons related to changes in organizational or technological working conditions, if he does not agree to work in new conditions (part 3 of article 74 of the Labor Code);

3) when reducing the number or staff of employees of the organization, individual entrepreneur(part 3 of article 81 of the Labor Code);

4) if the employee does not correspond to the position held or the work performed due to insufficient qualifications, confirmed by the results (part 3 of article 81 of the Labor Code);

5) upon reinstatement at work of an employee who previously performed this work, by decision state inspection labor or court (part 2 of article 83 of the Labor Code);

6) in case of disqualification or other administrative punishment, excluding the possibility for the employee to perform duties under (part 2 of article 83 of the Labor Code);

7) in case of expiration, suspension of validity for a period of up to two months or more than two months, or deprivation of an employee of a special right (license, right to manage vehicle, the right to bear arms, other special rights) in accordance with federal laws and other regulatory legal acts Russian Federation if this entails the impossibility for the employee to fulfill the obligations under the employment contract (Article 76, part 2 of Article 83 of the Labor Code);

8) upon termination of access to state secrets, if the work performed requires such access (part 2 of article 83 of the Labor Code);

9) upon termination of an employment contract due to violation of the rules for concluding an employment contract established by the Labor Code or other federal law (part 2 of article 84 of the Labor Code).

By agreement of the parties, concluded in writing, the employee may be assigned to another job with the same employer for a period of up to one year, and in the case when such a transfer is carried out to replace a temporarily absent employee who, in accordance with the law, retains his job, until this employee returns to work. If, at the end of the transfer period, the employee is not provided with the previous job, but he did not demand its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer becomes invalid and the transfer is considered permanent.

In the event of a natural or man-made disaster, industrial accident, accident at work, 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, the employee may be transferred without his consent for a period of up to one month to unconditional work with the same employer in order to prevent these cases or eliminate their consequences.

The transfer of an employee without his consent for a period of up to one month to work not stipulated by an employment contract with the same employer is also allowed in cases of downtime (temporary suspension of work for reasons of an economic, technological, technical or organizational nature), the need to prevent the destruction or damage to property, or replacement temporarily absent employee, if downtime or the need to prevent the destruction or damage to property or to replace a temporarily absent employee is caused by emergency circumstances specified in part two of Article 72.2 of the Labor Code of the Russian Federation. At the same time, transfer to work requiring lower qualifications is allowed only with the written consent of the employee.

When transfers are made in the cases provided for in parts two and three of Article 72.2 of the Labor Code of the Russian Federation, the employee's remuneration is made according to the work performed, but not lower than the average earnings for the previous job.

Transfer to another job is a permanent or temporary change in the labor function of an employee and (or) structural unit in which the employee works (in the event that the structural unit was indicated in the employment contract), while continuing to work for the same employer, as well as transferring to work in another area together with the employer (72.1 of the Labor Code of the Russian Federation).

Types of transfers to another job

In accordance with the provisions of the Labor Code of the Russian Federation, the following types of transfers can be distinguished:

Permanent transfer to another job with the same employer;
Temporary transfer to another job with the same employer;
Permanent transfer to work in another area together with the employer;
Transfer to a permanent job with another employer;
Transfer to another job in accordance with the medical report.

1. Permanent transfer to another job with the same employer

With this type of transfer, the employee either changes his labor function on an ongoing basis, or changes the structural unit in which he works, if the structural unit was indicated in the employment contract, or two of these conditions change at once. At the same time, the employee continues to work for the same employer.

The difference between a transfer to another job and a transfer

should be distinguished from translation. moving. By virtue of h. 3 Article. 72.1 of the Labor Code of the Russian Federation, the transfer from the same employer is carried out to another workplace, to another structural unit located in the same area, or is associated with an assignment to work on another mechanism or unit. The transfer is not a transfer to another permanent job and does not require the consent of the employee.

The relocation is permissible under the following conditions: firstly, it does not entail a change in the labor function and, secondly, it does not change the terms of the employment contract determined by the parties. At the same time, moving to another structural unit with the same employer is possible if the employment contract did not stipulate a specific structural unit in which the employee who entered into this employment contract will work.

But in all cases, the employer does not have the right to transfer or move the employee to work that is contraindicated for him for health reasons (part 4 of article 72.2 of the Labor Code of the Russian Federation).

2. Temporary transfer to another job with the same employer

Significantly different from permanent transfers are temporary transfers of employees to another job with the same employer, which can be carried out:

By agreement parties;
At the initiative of the employer without agreement worker.

Temporary transfer to another job by agreement of the parties

Temporary transfer may take place by agreement of the parties in writing:

for a period of up to 1 year;
during the employee's absence when replacing his position.

In both cases, if at the end of the transfer period the previous job was not provided to the employee, but he did not demand its provision and continues to work, the condition of the agreement on the temporary nature of the transfer becomes invalid and the transfer is considered permanent (part 1 of article 72.2 of the Labor Code of the Russian Federation ).

Temporary transfer to another job without the consent of the employee

Temporary transfer of an employee is possible as an exception without his consent for a period of up to 1 month to work not stipulated by an employment contract in cases of a catastrophe, industrial accident, fire, flood and other emergency circumstances to prevent these cases or eliminate their consequences (parts 2, 3 of article 72.2 TC RF).

It is allowed to temporarily transfer an employee without his consent for up to 1 month in cases of downtime, the need to prevent the destruction or damage to property, or to replace a temporarily absent employee, but only in the presence of emergency circumstances specified in parts 2, 3 of Art. 72.2 of the Labor Code of the Russian Federation. At the same time, transfer to work requiring lower qualifications is allowed only with the written consent of the employee (part 3 of article 72.2 of the Labor Code of the Russian Federation).

3. Permanent transfer to work in another area together with the employer

Permanent transfer of an employee to another locality together with the employer is allowed only with the consent of the employee. Under "other locality" should be understood the area outside the administrative-territorial boundaries of the corresponding settlement.

The refusal of the employee to transfer to work in another locality together with the employer is the basis for the termination of the employment contract, according to paragraph 9 of part 1 of Art. 77 of the Labor Code of the Russian Federation: refusal of an employee to transfer in connection with the relocation of the employer to another locality.

4. Transfer to a permanent job with another employer

The transfer of an employee to a permanent job with another employer is carried out by agreement between the employee and the employer at the old and new place of work and is associated with a change in the employer as one of the parties to the employment contract.

Accordingly, in this case, the employment contract is terminated on the grounds enshrined in paragraph 5 of part 1 of Art. 77 of the Labor Code of the Russian Federation: transfer of an employee at his request or with his consent to work for another employer.

5. Transfer to another job in accordance with the medical report

An employee who needs to be transferred to another job in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other legal acts of the Russian Federation, with his written consent, the employer is obliged to transfer to another job available to the employer that is not contraindicated to the employee for health reasons (h 1 article 73 of the Labor Code of the Russian Federation).

It is not uncommon for personnel officers and accountants, sometimes even experienced ones, to experience difficulties in distinguishing between the transfer of an employee and his movement. Let's consider whether there are similarities and how these two actions differ, without which the labor activity of employees of the organization is often unthinkable.

Employee transfer

The transfer of an employee to another job is one of the possible changes the terms of his employment contract. It is carried out only by agreement of the parties, except for some cases fixed in the law. An agreement is drawn up exclusively in writing (Article 72 of the Labor Code of the Russian Federation).

permanent or temporary change in the labor function of the employee;
permanent or temporary change in the structural unit in which the employee works, if it was fixed in the employment contract;
transfer together with the employer to another locality.

In this case, the employer does not change.

However, another type of transfer is also indicated there - for a permanent job with another employer. The previous employment contract with such a transfer is terminated, and a new one is concluded - with another employer.

Worker relocation

In addition to the transfer to another job, the same norms of the law regulate the movement of an employee.

The transfer of an employee can only take place with the same employer.

It is possible in the form:

moving to another workplace;
moving to another structural unit of the organization within the same locality;
an assignment to an employee to work on another mechanism (unit).

A prerequisite for the legitimacy of the movement is the absence of changes in the conditions of the employment contract concluded between the parties. In other words, when moving, the workplace fixed earlier in the employment contract, or the unit (department), or the mechanism (machine, car) should not change.

The transfer of an employee does not require his consent to this. Disagreement can be regarded as a violation labor discipline and entail the corresponding consequences in the form disciplinary action.

At the same time, the state of health of the employee should be taken into account: the law strictly prohibits moving him to a job that is contraindicated by a medical opinion.

Similarities and differences

The transfer to another job and the movement of an employee are similar in that during such a movement, the worker changes his workplace, or a structural unit in the same area, or the mechanism by which he works.

A fine line of difference is revealed when determining whether these actions change the terms of the employment contract, which the parties had previously agreed to.

If they are unchanged, then there is a displacement.

If they change, this is a transfer, which requires the consent of the employee and the introduction of written changes to the concluded employment contract.

For example, if in the employment contract with the secretary the reception of the head of the organization is indicated as his workplace, then it is impossible to move him to another office without his consent and the conclusion of an additional agreement on this to the employment contract. If, in the employment contract, the reception is not fixed as a workplace, then moving the secretary to another office without his consent is lawful.

Or a driver accepted according to an employment contract “to work on a Renault passenger car, state number A 111 TL 77 RUS”, cannot be transferred to a KIA car, but can be transferred with his written consent.

Or a salesperson accepted to work in chain store in one area of the city, it is illegal to move to work in a store in another city area. It can only be translated.

Registration of transfer to another permanent job and relocation also differs.

In the first case, an additional agreement is concluded to the employment contract, an order is issued on its basis, then an entry is made in the work book of the employee.

In the second case, only the order of the head to move the employee is issued.

During the operation of the company, its management may take actions to transfer employees on a permanent or temporary basis.

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Changes may affect the venue labor activity, positions, working hours, salaries, benefits.

Personnel can be transferred to those areas where there is the greatest need for labor resources.

In addition, such actions are taken to ensure the professional growth of employees. In this regard, one can speak of the existence various options transfers to another job.

General points

Transfer to another job is based on providing the employee with another place for the performance of labor duties, changing his job function or position within the enterprise.

All changes must be reflected in labor agreement because they touch on its key terms.

This process may involve activities such as:

Due to the fact that in market economy the change working conditions- a very common practice, then the company's management makes structural adjustments, revises functional responsibilities, corrects the mode of the working day, modifies the technological process.

In such conditions, the implementation of personnel transfers is a natural and integral process.

The head of the company is obliged to notify the employee about the transfer and changes in key conditions at least two months in advance.

The employee has the right to consent to such a decision or upon changes in the basic conditions of employment ().

Basic concepts

Transfer to another job	This is a change of function, position or department, which acts as the place of the current activity of the employee, on permanent or temporary terms.
The key feature of translation	There is an amendment to the employment contract, which involves the signing of a new copy of it or additional agreement acting as an annex to the agreement
Under the workplace	understood part production area, which is used by the employee to perform his job duties, secured necessary equipment, mechanisms and tools
Permanent translation	Assumes that the essential working conditions of the employee change for a period of more than one month
Temporary transfer	Provides for changes in the labor function, position, salary, etc. within the framework of this organization at the initiative of the employer for a period of up to a year
The transfer of an employee can be easily distinguished from a transfer	In the first case, the employee's labor function remains unchanged and no adjustments are made to his contract with the employer.

Current scheme

Transfer to another job is submitted solely by mutual agreement of the employer and employee () on the basis of the step-by-step scheme below.

The employee or employer initiates the process of transfer to another job, arguing this decision with specific circumstances	If the initiative comes from the employee, then he prepares an application addressed to the head of the company; if from the employer, then he submits a written proposal to the employee two months before the actual transfer
The employee gets acquainted with local regulations and job descriptions that relate to his new place of work	In work journals, he puts a signature on the fact of familiarization
Employer and employee sign an agreement	Which will act as an annex to the employment contract. If necessary, it is also included. One copy of each of the documents is given to the employee
The organization issues a transfer order	Which is signed by the head
The employee gets acquainted with the content	This document against signature
Transfer Information	Transferred to the employee's work book ()
Information is entered	To the employee's personal card ()

Legal regulation

All aspects related to the transfer of employees to another job are described in detail in the labor legislation of the Russian Federation, namely:

	Considers the procedure for changing the terms of the employment contract in the process of transfer, as well as settling this issue between the employee and the employer
	Describes in detail the essence of a permanent transfer and specifies the definitions of transfer and movement of employees
	Describes general terms and Conditions temporary transfer of an employee
	Settles the issues of transferring a citizen in connection with a medical opinion issued in relation to him
	Reveals the nuances of changes in the employment contract in connection with the variable organizational or technological conditions at the enterprise
	Describes the process of change of ownership and reorganization of the enterprise, which may also involve the transfer of an employee

The issues of formalizing the process of transferring an employee in personnel documentation are described in specialized regulations relating to work books and personal matters.

Types of transfer of an employee to another job

Considering the variety of factors that may become the basis for the transfer of an employee, the following types of transfers of employees can be distinguished:

Temporary transfers	Assuming a change in labor function or place of work for a short period (up to 1 year)
Permanent transfers from one employer	Expressed in a change in the meta-performance of duties, salaries, positions, powers while maintaining labor relations with the same employer
Transfer to another employer	Which involves a long process of termination of labor activity of an employee at this employer(dismissal) and employment in a new place;
Translation together with the employer	It is based on the possibility of moving the entire production complex of a particular enterprise to another location, which also requires a change in the essential terms of the employment contract

In light of such a wide variety of transfers and their types, it seems worthwhile to consider in more detail the characteristics and reasons for such activities.

For what purpose is

The goals of transferring employees to other organizations, to new positions and to other areas can be identified on the basis of a thorough analysis of labor legislation.

Availability	Requiring the transfer of an employee to a place with less severe and less harmful conditions labor
Change in organizational and technological features of the production process	Assuming the formation of new working conditions
Downsizing at the employer	Working on IP terms
Certification results	Which determine the inconsistency of the person with the position, the need for advanced training
Reinstatement to this position	By decision of the labor protection inspectorate, who previously performed duties within its framework and was illegally removed from it
The fact of administrative punishment	Regarding an employee
Termination of access to state secrets	If such a right of the employee was stipulated in the employment contract

The goals of the transfer can be not only the fulfillment of the provisions provided for by labor legislation, but also the encouragement conscientious employee, rationalization production activities which is carried out at the initiative of the employer.

Existing classification

The current Russian labor legislation proposes to classify transfers to another job according to the following criteria:

by term;
at the place of further labor activity;
according to the source of the initiative to transfer, etc.

In the table below, the types of transfers to another job are presented in more detail, taking into account the criteria for their classification.

Types of transfers to another job

Separate types of transfers

The most well-known types of transfers to another job are permanent and temporary transfers. In this regard, it makes sense to consider their characteristics in more detail.

Permanent transfers are possible only by mutual agreement of the parties to the employment contract and in the presence of a written agreement.

Coercion in this process is prohibited by law. published within 3 days from the date of such decision.

Otherwise, the employee with the provision of severance pay.

There are two specific cases:

Temporary transfer involves a conclusion between the employer and the employee for up to one year.

Most often, this kind of event takes place if there is a need to replace a temporarily absent employee.

In this case, the same formal procedures are followed. As with constant translation.

New edition Art. 72.1 of the Labor Code of the Russian Federation

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 indicated in the employment contract), while continuing to work for the same employer, as well as transfer to work in another locality along with the employer. Transfer to another job is allowed only with the written consent of the employee, except for the cases provided for by 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 a permanent job with another employer. In this case, the employment contract at the previous place of work is terminated ().

It does not require the consent of the employee to move him from the same employer to another workplace, to another structural unit located in the same area, entrusting him to work on another mechanism or unit, if this does not entail a change in the terms of the employment contract determined by the parties.

It is forbidden to transfer and move an employee to work that is contraindicated for him for health reasons.

Commentary on Article 72.1 of the Labor Code of the Russian Federation

A change in the terms of an employment contract that determines the place of work of an employee is made taking into account the provisions of Articles 72.1, 72.2 and 73 of the Labor Code of the Russian Federation. First of all, we draw the attention of dear readers to the fact that, in accordance with Article 72.1 of the Labor Code of the Russian Federation, transfer to another job means:

a) a permanent or temporary change in the labor function of the employee and (or) the structural unit in which he works this worker(if the structural unit was specified in the employment contract), - while continuing to work for the same employer;

b) transfer to work in another locality together with the employer. The transfer of an employee to another workplace (to another structural unit) located in the same locality does not require consent, if none of the previously defined terms of the employment contract is changed. Such a situation, in accordance with part three of Article 72.1 of the Labor Code of the Russian Federation, is qualified as a displacement.

Another commentary on Art. 72.1 of the Labor Code of the Russian Federation

1. Article 72.1 of the Labor Code of the Russian Federation interprets transfer to another job and transfer (to another workplace), which is not a transfer.

As follows from Part 1 of Art. 72.1, transfer to another job is a special case of changing the employment contract, and the concept of transfer is associated with a change in the terms of the employment contract determined by the parties (see article 72 of the Labor Code of the Russian Federation and commentary thereto). In other words, translation is primarily an innovation in the content of an employment contract. At the same time, on the one hand, not any change in the content of an employment contract is recognized by the legislator as a translation, and on the other hand, not every translation is associated with a change in the terms of the employment contract established by the parties, i.e. is an innovation in its content.

By virtue of Art. 72.1 of the Labor Code of the Russian Federation, a transfer to another job means a change in: a) the labor function of an employee and (or) b) a structural unit (if this unit was determined by the parties as a condition of the employment contract). In this case, there is a transfer to another job associated with the novation of one or two conditions that make up the content of the employment contract.

A transfer to another job is also recognized as the transfer of an employee to another locality together with the employer. Based on the definition of the concept of a place of work as a condition of an employment contract (see Article 57 of the Labor Code of the Russian Federation and a commentary to it), it should be recognized that in this case there is a change in one of the conditions that make up the content of the employment contract.

Finally, in accordance with part 2 of the commented article, a transfer is the transfer of an employee to another employer. However, since in this case the subject composition of the contract changes, such a transfer means the termination of one labor relationship and the emergence of a new one.

So, a transfer to another job means either a change in the type of work stipulated by the employment contract (type of labor and its qualifications), or a change by the agreed parties of the place of employment.

Accordingly, as the Supreme Court of the Russian Federation states, a transfer to another job should be considered 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 indicated 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. At the same time, structural subdivisions should be understood as branches, representative offices, as well as departments, workshops, sections, etc., and under another locality - the area outside the administrative-territorial boundaries of the corresponding settlement (parts 2 - 3 of paragraph 16 Resolution of the Plenum of March 17, 2004 N 2).

This change can be either permanent or temporary. A change in the subject composition of an employment contract, strictly speaking, is not a transfer, because it is associated with the termination of the employment contract as a whole when the employee transfers to another employer (see to her).

2. Describing this type of transfer as “transfer to another locality together with the employer”, it should be borne in mind that quite often the economic activity of the employer is not limited to any one locality (for example, organizations practicing shift method organization of work, logging, construction organizations etc.). Since the specificity of labor relations in such cases lies in the performance by the employee of his labor duties at facilities located in different areas, the movement of an employee from one facility to another cannot be considered as a transfer.

Thus, in such cases one must distinguish between economic activity and, accordingly, the use of the employee’s labor and the location of the organization, which should be understood as its legal address(as in the case of a transfer due to a change of employer, in this case, both the employer-organization and the employer-individual may move to another location). Moving the location of the organization to another location should be interpreted as the transfer of the employee, together with the organization, to another location. The concept of the location of the employer (as an organization - legal entity, and an individual entrepreneur - an individual), i.e. its legal address is determined taking into account the norms of civil law.

As follows from the Federal Law of August 8, 2001 N 129-FZ "On state registration legal entities and individual entrepreneurs", state registration of a legal entity is carried out at the location indicated by the founders in the application for state registration of a permanent executive body, in the absence of such - at the location of another body or person entitled to act on behalf of a legal entity without a power of attorney (Article 8).

State registration of an individual entrepreneur is carried out at the place of his residence. By virtue of paragraph 1 of Art. 20 of the Civil Code of the Russian Federation, the place of residence is the place where a citizen permanently or predominantly resides. According to paragraph 18 of the Rules for the registration and removal of citizens of the Russian Federation from registration at the place of stay and at the place of residence within the Russian Federation, approved by Decree of the Government of the Russian Federation of July 17, 1995 N 713, registration of citizens at the place of residence is carried out by making an appropriate mark in their passports . According to paragraph 1 of the Decree of the President of the Russian Federation of March 13, 1997 N 232, the passport of a citizen of the Russian Federation is the main document proving the identity of a citizen of the Russian Federation on the territory of the Russian Federation (letter of the Federal tax service dated October 24, 2005 N 06-9-09 / 39@ "On registration of cash registers").

In the event that an employee is employed by an employer - a large legal entity, his place of work is a structural unit (enterprise or institution) as an element of the production and technological structure of this legal entity (see clause 3 of the commentary to article 57 of the Labor Code of the Russian Federation). Under such conditions, the transfer together with the organization should be considered the movement of this structural unit to another location (despite the fact that the location of the employing organization has not changed).

Finally, this type of transfer occurs if the location of separate structural subdivisions (branches and representative offices) in which the labor of workers is used changes.

An employee who is transferred to work in another locality is reimbursed for the costs of moving (see Article 169 of the Labor Code of the Russian Federation and commentary thereto).

If the employee refuses to transfer due to the employer's relocation to another locality, the employment contract with him is terminated in accordance with paragraph 9 of Art. 77 of the Labor Code of the Russian Federation.

3. Transfers to another job may differ for other reasons.

4. From the point of view of who initiates the transfer, one can distinguish between transfers carried out on the initiative of the parties to the employment contract and on the initiative of third parties. In turn, the initiative of the parties to transfer can be mutual and one-sided (i.e. come either from the employee or from the employer).

From general principle contract law - "contracts must be fulfilled" - it follows that a change in the content of an employment contract (its innovation) is possible in the same manner and in the form in which it was concluded. Just as the conclusion of a contract is an act of the will of the two parties, so changing it should imply a corresponding expression of the will of these parties. By general rule transfer to another job is possible if there is a mutual will of the parties to the contract. Given general rule enshrined in Part 1 of Art. 72.1 of the Labor Code, according to which transfer to another job is allowed only with the written consent of the employee.

5. The initiative for the transfer may come from the employee. However, as a general rule, this kind of initiative of the employee should be considered only as a request for a transfer, which the employer has the right (but not the obligation) to satisfy. There are exceptions to this general rule when the employee's demand for a change in essential working conditions is mandatory for the employer. For example, in accordance with the request of a pregnant woman, one of the parents (guardian, guardian) who has a child under the age of 14 (a disabled child under 18), as well as a person caring for a sick family member in accordance with a medical report , the employer is obliged to establish a part-time or part-time working week(see article 93 of the Labor Code of the Russian Federation and commentary to it). In the same way, if an employee refuses to perform work in the event of a danger to his life and health, with the exception of cases provided for by federal laws, the employer is obliged to provide the employee with another job while such danger is eliminated (see Article 220 of the Labor Code of the Russian Federation and commentary to it ).

6. From a similar standpoint, transfers carried out at the initiative of the employer should also be evaluated. As a general rule, an employer's proposal to change essential working conditions implies a counter-expression of the employee's will; changing the specified conditions by the employer unilaterally is not allowed. However, there are exceptions here too, when the employer's order to transfer is mandatory for the employee and refusal to comply with it is considered a disciplinary offense. But under such conditions, the principle of stability of the labor relationship is called into question and a threat is created to use the worker's labor forcibly, which is a violation of the constitutional principle of the freedom of the individual to control himself, including the disposal of his abilities to work. Therefore, the possibility of using the labor of an employee on terms that go beyond the agreement of the parties is subject to a number of restrictions provided for by law. Transfer without the consent of the employee is possible, firstly, if there are reasons of an extraordinary nature, the list of which is specified in the law, and, secondly, if it is temporary (see article 72.2 of the Labor Code of the Russian Federation and commentary thereto). In addition, an essential guarantee that excludes the possibility of forced labor is the right of the employee, enshrined in law, to freely terminate the employment contract at his own request.

At the same time, the legislation provides for the possibility of permanent changes in the essential terms of the employment contract by the employer unilaterally. However, such a change is allowed only by certain categories of employers. For example, an employer - an individual (see Article 306 of the Labor Code of the Russian Federation and a commentary thereto) and an employer - religious organization(see Article 344 of the Labor Code of the Russian Federation and commentary thereto), subject to a written warning to the employee, respectively, at least 14 and 7 calendar days before the introduction of new working conditions.

7. The initiative for the transfer may come from third parties, i.e. entities that are not employees or employers. For example, a medical body can act as such a subject, which, based on the results of a medical examination of an employee, gives a conclusion that, due to medical indications specified worker needs to provide work with more light conditions labor. For the employer, this prescription is mandatory: he is obliged to offer the employee a job with easier working conditions. In relation to an employee, the conclusion of a medical authority cannot be considered mandatory. Thus, the employer, in accordance with the medical report, is obliged to offer the employee another job, while the latter, in turn, has the right to agree to the transfer, but also has the right to refuse it (see Article 73 of the Labor Code of the Russian Federation and commentary thereto).

The situation is somewhat different in the case when a court acts as a third party, imposing a punishment on the guilty employee in the form of deprivation of the right to occupy certain positions or engage in certain activities(Articles 44, 47 of the Criminal Code). It is clear that the specified legal act of the court is binding on all persons to whom it is addressed, first of all, of course, to the employee and the employer. However, this does not exclude the right of the employer to offer the employee a job that is not subject to the restriction imposed by the court, as well as the right of the employee to agree with the transfer to such work. A similar approach is also possible in the case of an administrative penalty in the form of deprivation of a special right (Article 3.8) or disqualification (Article 3.11 of the Code of Administrative Offenses) in the prescribed manner.

8. Legislation provides for the possibility of transferring to another job at the will of the parties to the employment contract and a third party. In the case of a transfer of an employee to another employer, in addition to the request or consent of the employee himself, the consent to such a transfer of the former employer and the invitation (or consent to the transfer) of the new employer are also required.

At the same time, the law prohibits refusing to conclude an employment contract for employees invited in writing to work by transfer from another employer within one month from the date of dismissal from their previous place of work (see article 64 of the Labor Code of the Russian Federation and commentary thereto).

9. Transfers to another employer differ depending on the place of transfer: a) within the employer's organization; b) to another employer in the same locality; c) together with the employer to another locality. In addition, the possibility of transferring an employee to another employer located in another area cannot be ruled out.

Transfer to another employer, as a rule, is carried out temporarily. If it is permanent, then there is no reason to talk only about the transfer: here the subject composition of the employment contract changes (one employer is replaced by another). Accordingly, one ceases to exist employment relationship and something new emerges. This is not about the transfer as such, but about the termination of the employment contract in the order of transfer to another employer (clauses 1 - 2 of the commentary to this article). Such a transfer involves the coordination of the wills of all interested parties, including the employee.

10. Depending on the terms, transfers to another permanent and other temporary work (or transfers permanent and temporary) are distinguished. 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. are binding on him, and the refusal to transfer without sufficient grounds is considered as a disciplinary offense.

11. Transfers vary depending on the reason for the transfer. These reasons may be related to the personal characteristics of the employee, his social status or be industrial. For example, the state of health of an employee may serve as the basis for transferring to another job (see Article 73 of the Labor Code of the Russian Federation and commentary thereto); the grounds for the transfer of an industrial nature are the occurrence of cases of an extraordinary nature (see article 72.2 of the Labor Code of the Russian Federation and commentary thereto).

12. Closely related to the concept of "transfer to another job" is the concept of "transfer to another job". By virtue of the commented article, it does not require the consent of the employee to move him from the same employer to another workplace, to another structural unit located in the same area, entrusting him to work on another mechanism or unit, if this does not entail a change in the working conditions determined by the parties contracts.

Therefore, as a general rule, assigning an employee to work on another mechanism, unit, machine (without changing the terms of the employment contract) is not a transfer to another job and does not require the consent of the employee. If the employment contract provides for the performance of work at a specific workplace, then the assignment of work on another unit, mechanism or machine is a transfer. For example, a driver can be hired both without specifying the brand of the car on which his work is supposed to be used, and with the indication of this brand. In the latter case, assigning him work on a car of a different brand should be considered as a transfer to another job.

In the same way, the movement of an employee from one structural unit of an organization to another is usually not considered a transfer (unless the terms of the employment contract change). but this rule valid in the case of finding structural units in the same area according to the existing administrative-territorial division. As shows arbitrage practice, moving from one structural subdivision to another, even if these subdivisions are located in the same locality, is treated as a transfer if the transport accessibility for the employee significantly worsens during the transfer new job. The formal criterion for distinguishing between translation and displacement in this case can be the criterion transport accessibility, statutory RF dated April 19, 1991 N 1032-1 "On employment in the Russian Federation", and taken into account when deciding on a suitable or inappropriate work employment of a person recognized as unemployed.

In any case, it is not allowed to assign an employee to perform work that is contraindicated for him for health reasons.