Transfer of an employee from branch to branch. Transfer of an employee to a separate division. How to arrange a transfer from a branch to the main office

If a company opens a branch in another constituent entity of the Russian Federation and decides to transfer its employee there, the organization should pay attention to a number of significant points. Consider how to competently transfer an employee to a branch of the company.

Table of contents:

Essence of translation

The Labor Code considers a transfer to another job as a temporary or permanent change in the functions of an employee of an organization or an entire unit where activities are carried out, taking into account certain conditions(Article 72.1 part 1 of the Labor Code of the Russian Federation). When organizing a translation, these conditions change significantly.

Transfer to a branch means moving an employee to another locality. Such a locality is considered to be one that goes beyond the boundaries of the settlement of the organization (another city, another region, region, etc.).

Attention! A transfer is not considered to be the simple movement of an employee to another place of work or to another division of the same organization in the same locality, as well as an assignment to work on another unit, which did not entail any changes in the employment contract.

Employer's obligations

Let's find out what the employer should pay attention to when transferring an employee to a branch, what duties appear in connection with this.

Preservation of the employee's workplace

The employer has an obligation to keep workplace for an employee in the event of a temporary transfer to another position. At the end of the temporary activity, the employee can return to his previous workplace. If such a desire is not expressed, then the transfer from the temporary becomes permanent (this is prescribed in article 71.2 part 1 of the Labor Code of the Russian Federation).

If the transfer is permanent, the employer is not obliged to keep the previous workplace for the employee.

Relocation allowance

The Labor Code instructs the employer to take responsibility for part of the expenses of the transferred worker (in articles 165 and 169). These include:

• Relocation costs for both the employee and his family (including: parents, children, spouses);
• Transportation of property (if the employer did not provide a car for movement);
• Arrangement in a new place of residence.

At the same time, according to Article 169 of the Labor Code of the Russian Federation, the amount of payments and the procedure for calculating them are determined by the commercial company itself (there are no legally established standards).

How to make a translation

Consider the form in which you need to draw up the relevant documents for translation.

Manager's decision to transfer

The manager's decision to transfer an employee to a branch should be based on the proposal of the branch manager. This proposal is expressed in .

In the event of a change in the company's strategy and a radical review of its development, when it is required to transfer a group of people to a branch, the founders of the company can decide on the transfer.

The law establishes a ban on the transfer of an employee to work that can harm his health.

In addition, the employer may take into account some facts when deciding whether to transfer an employee:

• health status (perhaps moving or staying in a new territory will negatively affect the employee);
• the presence of minor children;
• pregnancy;
• employee - ;
• an employee takes care of a disabled relative, etc.

Notifying an employee about a transfer to another location

When choosing an employee for transfer to a branch, it is important for an employer to take into account not only the question of whether a particular person is suitable, but also the possibility for a person to change his place of residence due to various circumstances.

The manager must obtain the written consent of the employee for the upcoming transfer (the requirement is established by Article 72.1 of the Labor Code of the Russian Federation). To do this, he draws up proposals in any form, indicating the transfer and, accordingly, the move and sends it to the employee.

The employee, in turn, also sends a written response in which he agrees or refuses the offer.

The translation changes some features of the employee’s activities, therefore, in addition to the employment contract, it is necessary to add a new agreement, fixing important conditions.

The text of the agreement may contain the following elements: the procedure for moving to a new place of residence, the stipulated compensation payments for expenses incurred, the transfer of property to a new place of residence, accommodation in a new place and other conditions that both parties consider essential.

In situations where a network of branches is developing and someone is constantly required to be transferred there, it is better to establish uniform standards for moving workers, describing all of the above points.

Translation order

Only after the agreement is signed by both parties (the employee and the employer), the manager draws up an order to transfer the employee to the branch.

Note in the workbook

After the issuance of the transfer order, no later than 7 days later, a corresponding entry is made in the employee's work book. It is similar to the one in the order. In addition, the entry goes to the employee's personal card (T-2 form).

If the employee refuses to transfer, then his dismissal is issued.

The corresponding entry can only be made by persons with this authority. These include:

• the employer himself;
• personnel worker;
• confidant.

Taxes and contributions when transferring an employee to a branch

Due to the fact that the employer is called upon to compensate for part of the expenses incurred by the employee, there are some obligations to pay tax and insurance payments.

personal income tax

The tax code does not provide for payment in connection with the costs of an employee for relocation and accommodation. So, article 217 expressly states that all compensation payments within the law are exempt from paying personal income tax.

Insurance premiums

The amounts of reimbursement by the employer, which are made in connection with the move to the branch, in the officially agreed amounts and fixed in the contract are not subject to the corresponding insurance premiums.

income tax

Compensation payments to the employee for moving to another locality, arrangement (according to the Labor Code of the Russian Federation), additionally established. agreement and are directly related to the receipt of income by the organization.

These costs are officially confirmed, they are enshrined in law, so the company has the right to take into account their amount for tax purposes by sending them to the column of other expenses that are associated with sales and production.

Conclusion

Thus, in order to transfer an employee to a branch, it is necessary, first of all, to make a decision on the transfer, and then write an appropriate proposal to the employee in any form, indicating where they want to send him. After that, the employee writes consent to the transfer to the branch or refusal.

Answered the question
MM. Pokrovskaya,
Advisor to the Office of Constitutional Foundations
labor law and social protection
Secretariat of the Constitutional Court of the Russian Federation,
Ph.D.

Subscriber "KP"
E.A. Miroshnichenko,
Tyumen

Expert "KP"
MM. Pokrovskaya

When assessing the legality of the option you proposed for processing the transfer of an employee of an organization at his request to a branch of the same organization - by dismissing him from work under paragraph 5 of Article 77 Labor Code RF with subsequent hiring - first of all, you need to pay attention to the content of the very wording of the specified paragraph, which, in particular, fixes such a basis for termination employment contract, as a transfer of an employee at his request or with his consent to work for another employer. As you can see, this ground for dismissal from work can be applied only in the event of termination of the employee's employment relationship with one employer and the emergence of employment relations with another.
We note in this regard that, as follows from Article 20 (parts two, three and four) of the Labor Code of the Russian Federation, an employee is individual who entered into labor relations with the employer, and the employer (except for cases that may be established federal laws) - an individual or legal entity (organization) that has entered into an employment relationship with an employee. At the same time, the rights and obligations of the employer legal entity(organizations) in labor relations are carried out by its management bodies or persons authorized by them in the manner prescribed by laws, other regulatory legal acts, founding documents legal entity (organization) and local regulations.
Branch same according to article 55 (part 2 and 3) Civil Code RF is separate subdivision a legal entity located outside its location and performing all or part of its functions, which is not a legal entity. Branches are endowed with property by the legal entity that created them and act on the basis of the provisions approved by it, and the heads of branches are appointed by the legal entity and act on the basis of its power of attorney.
It follows from the above provisions of the legislation, on the one hand, that an employee entering a job concludes an employment contract with a legal entity (organization) as a whole, and on the other hand, that a branch of a legal entity (organization) cannot act as an employer in relation to employee.
Therefore, when transferring an employee of an organization working in one of the structural divisions of this organization at its location to a branch of this organization, it is in principle wrong to talk about the termination of an employment contract with him under paragraph 5 of Article 77 of the Labor Code of the Russian Federation and subsequent employment with another employer.
In the situation described in your letter, we can only talk about a change in one of the essential conditions of the employment contract, carried out at the request of the employee - namely, the conditions for the place of work (in this case, the structural unit of the organization located in a certain area), that is, the transfer of the employee to another permanent job in the same organization (part one of Article 72, part two of Article 57 of the Labor Code of the Russian Federation).
Such a transfer must be carried out in compliance with the provisions of the Code. general rules transfer to another job. In particular, in accordance with part four of Article 57 of the Labor Code of the Russian Federation, the terms of an employment contract can only be changed by agreement of the parties and in writing. This agreement to amend the employment contract - the transfer of the employee - is drawn up in writing as an amendment to the employment contract; on the basis of this agreement, the employer issues an appropriate order (instruction), with which he must familiarize the employee against signature, and also, in accordance with the Instructions for filling out work books, approved by Decree of the Ministry of Labor of Russia dated 10.10.2003 No. 69, a corresponding entry is made about the transfer in the work book.
From the point of view of formalizing the transfer to another permanent job in the same organization, it is essential that the specified conditions be met. The solution technical issues regarding how official organizations authorized to represent the employer in labor relations with the employee sign the relevant documents, who makes the entry on the transfer in the employee's work book, in what order the documents are transferred to another city, etc., is carried out in accordance with the rules determined by local regulations, adopted in the prescribed manner by the employer (for example, the rules of record keeping in the organization, the regulations on the branch, etc.).
As for monetary compensation for vacations not used by the employee while working in the previous structural unit, it is not paid when transferred to work in a branch of this organization, since part one of Article 127 of the Labor Code of the Russian Federation provides for its payment upon dismissal from work. The length of service that entitles an employee transferred from one structural unit of an organization to another to annual basic and additional paid holidays is calculated in accordance with the general rules of Article 121 of the Code. At the same time, the length of service giving the right to the annual basic paid leave, along with other periods of time provided for in the first part of the above article, includes the time of the employee's actual work, regardless of which structural unit this work was carried out in; to work experience giving the right to annual additional paid leave for work with harmful and (or) hazardous conditions labor, in accordance with part three of the same article, only the time actually worked under the relevant conditions is included, but also regardless of which structural unit the work was carried out in.

In this article, we will tell you how to arrange for the personnel officer to transfer employees to another job. Let us consider in detail the following types of transfers: temporary and permanent, at the initiative of the employee and at the initiative of the employer, with the consent of the employee and without obtaining his consent. We will also turn Special attention on the procedure for transferring an employee to work in another area together with the employer.

Rules for transferring to another job

General rules

P transfer to another job Is it a permanent or temporary change labor function employee or 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 transferring to work in another area together with the employer (Article 72.1 of the Labor Code of the Russian Federation). Transfers can be temporary and permanent, at the initiative of the employee and at the initiative of the employer, with the consent of the employee and without his consent.

Note

In this case, structural subdivisions should be understood as branches, representative offices, as well as departments, workshops, sections, etc. (clause 16 of the resolution of the Plenum Supreme Court dated March 17, 2004 No. 2).

Please note that transfer to another job is allowed only with the written consent of the employee (Article 72.1 of the Labor Code of the Russian Federation). The exceptions are some cases of temporary transfer, to which we will pay special attention below. In this case, an agreement to change the terms of the employment contract determined by the parties must be concluded in writing (Article 72 of the Labor Code of the Russian Federation).

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

In all cases, it is forbidden to transfer and move an employee to work that is contraindicated for him for health reasons.

Also, at the written request of the employee or with his written consent, it can be carried out.

Please note: if the transfer to another job is recognized as illegal, the employee must be reinstated at the previous place of activity. At the same time, the body considering an individual labor dispute makes a decision to pay such a person the difference in earnings for the entire time of performing lower-paid work. Also, the court has the right, at the request of the employee, to make a decision on the recovery from the employer of monetary compensation for moral damage caused by these actions (Article 394 of the Labor Code of the Russian Federation). Moreover, if the employer delays the execution of the decision to reinstate the employee in his previous job, the body that made the decision issues a ruling on payment this citizen differences in earnings for the entire time of delay (Article 396 of the Labor Code of the Russian Federation).

Permanent translation

In this case, we are talking about a permanent change in the labor function of the employee or the structural unit in which the employee works (if the structural unit was indicated in the employment contract) (Article 72.1 of the Labor Code of the Russian Federation).

Any employee can apply for a transfer (see Example 1).

To process the transfer, use form No. T-5 or form No. T-5a (see Example 3), approved by the Decree of the State Statistics Committee of the Russian Federation dated 05.01.2004 No. 1 “On Approval unified forms primary accounting documentation for accounting for labor and its payment ”(hereinafter - Resolution No. 1).

Based on the order to transfer the employee to another job, marks are made in the section “Employment, transfers to another job” in the employee’s personal card (form No. T-2 or No. T-2GS (MS)) (see Example 4) and the front invoice (Form No. T-54 or No. T-54a).

• To whom: [email protected] website
• Topic: Free consultations

When issuing an order to transfer an employee to another job (form No. T-5, approved by the Decree of the State Statistics Committee of the Russian Federation dated January 05, 2004 No. 1 “On approval of unified forms of primary accounting documentation for accounting for labor and its payment”), personnel officers often have a question: “What document should be indicated in the line “Reason: change to the employment contract from ....”? Details of the employment contract itself or details of an additional agreement to the employment contract?

• Olga Maksimova,
• Head of the Human Resources Department, Burevestnik LLC, Nizhny Novgorod

Answered by Vladimir Pirogov, lawyer at Nikline LLC:

In the line "Basis: change to the employment contract from ..." the details of the supplementary agreement to the employment contract should be indicated. Let's explain our position.

In accordance with 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 to another area with the employer. And the place of work and the labor function of the employee are mandatory conditions of the employment contract (Article 57 of the Labor Code of the Russian Federation).

Article 72 of the Labor Code of the Russian Federation states that changing the terms of an employment contract determined by the parties, including transfer to another job, is allowed only by agreement of the parties to the employment contract, which is concluded in writing.

Therefore, the basis for issuing a transfer order will be an amendment to the employment contract signed by both parties, namely, an additional agreement.

And in accordance with the Instructions for the application and filling out the forms of primary accounting documentation for accounting for labor and its payment, if an employment contract was not concluded with the employee (the employee was hired before 10/06/1992) and his employment is issued by order, with filling out the unified form No. T-5, the line "Basis" indicates specific documents on the basis of which the employee will be transferred to another job (application, medical report, memo, etc.), and the requisite "Change to the employment contract" is not filled.

In accordance with Art. 66 of the Labor Code of the Russian Federation, information about transfers to another permanent job is entered in the employee's work book (see Example 5). At the same time, a record of the transfer is made out no later than a week on the basis of the relevant order (instruction) of the employer (clause 10 of the Rules for maintaining and storing work books, making forms work book and providing employers with them, approved by Government Decree No. 225 of April 16, 2003, hereinafter - Decree No. 225).

Temporary transfer

In this case, we will talk about a temporary change in the labor function of the employee 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 (Article 72.1 of the Labor Code of the Russian Federation). At the same time, temporary transfers to another job are regulated by Art. 72.2 of the Labor Code of the Russian Federation.

So, by agreement of the parties, concluded in writing, an employee can be temporarily transferred to another job with the same employer for up to one year.

Please note: if at the end of the transfer period the employee has not been provided with the previous job, and 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.

When such a transfer is carried out to replace a temporarily absent employee, for whom, in accordance with the law, the place of work is retained, then it is valid until the exit this employee to work.

The procedure for temporary transfers is similar to that for permanent transfers. The exception is that during temporary transfers, an entry in the employee's work book is not made out.

When does translation become mandatory?

Employee-initiated transfer

In some cases, the employee has the right to require the employer to temporarily transfer to another job.

For example, if an employee refuses to perform work in the event of a danger to his life and health, the employer is obliged to provide such an employee with another job while the danger is eliminated (Article 220 of the Labor Code of the Russian Federation).

Pregnant women and nursing mothers cannot be involved in the following work:

In this case, pregnant women, in accordance with a medical report and at their request, are transferred to another job that excludes the impact of adverse production factors, while maintaining the average earnings in the previous job. Until a pregnant woman is given another position, she is subject to release from work with the preservation of the average earnings for all the days missed as a result of this. Meanwhile, women with children under the age of one and a half years, if it is impossible to perform their previous work, they are transferred at their request to another job with wages for the work performed, but not lower than the average earnings at the previous place of activity until the child reaches the age of one and a half years (Art. 254 of the Labor Code of the Russian Federation). Also, pregnant women and women with children under the age of three cannot be involved in work performed by on a rotational basis(Article 298 of the Labor Code of the Russian Federation).

Transfer at the initiative of the employer and due to circumstances beyond the control of the parties

In some cases labor law allows the dismissal of employees only when it is impossible to transfer them to another job available to the employer, which the citizen can perform taking into account the state of his health. We are talking here about both vacant positions or work corresponding to the qualifications of the employee, and vacant lower positions or lower-paid work. In this case, the consent of the employee must be obtained. Please note that the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other areas only if it is provided for by the collective agreement, agreements, labor contract (Articles 81, 83 and 84 of the Labor Code of the Russian Federation). We are talking about the dismissal of employees in the following cases:

• reduction in the number or staff of employees of the organization, individual entrepreneur(Clause 2, Article 81 of the Labor Code of the Russian Federation);
• inconsistency of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification (clause 3 of article 81 of the Labor Code of the Russian Federation);
• reinstatement at work of an employee who previously performed this work, by decision state inspection labor or court (clause 2, article 83 of the Labor Code of the Russian Federation);
• disqualification or other administrative punishment, excluding the possibility of the employee fulfilling obligations under an employment contract (clause 8, article 83 of the Labor Code of the Russian Federation);
• expiration, suspension for a period of more than two months or deprivation of an employee of a special right (license, right to manage vehicle, the right to carry weapons, other special rights) in accordance with the law, if this entails the impossibility for the employee to fulfill his obligations under an employment contract (clause 9, article 83 of the Labor Code of the Russian Federation);
• termination of access to state secrets, if the work performed requires such access (clause 10, article 83 of the Labor Code of the Russian Federation);
• violation of the rules established by law for concluding an employment contract, if this violation was not committed through the fault of the employee and excludes the possibility of continuing work (clause 11, article 77 of the Labor Code of the Russian Federation).

We also remind you that an employee who needs to be transferred to another job in accordance with a medical report, with his written consent, the employer is obliged to transfer to another job he has that is not contraindicated for this citizen for health reasons. Meanwhile, if the said person needs temporary transfer for a period of up to four months, refuses to transfer or there is no corresponding job, then the employer must suspend the employee from work for this period while maintaining the place of work (position). In this case, during the period of suspension, wages are not accrued to the employee. At the same time, if an employee needs a temporary transfer for a period of more than four months or a permanent transfer, then if he refuses to transfer or if the employer does not have the appropriate job, the employment contract is terminated in accordance with paragraph 8 of part one of Article 77 of the Labor Code of the Russian Federation (Art. 73 of the Labor Code of the Russian Federation).

As a rule, in all the above cases, the employer sends the employee an appropriate notification or proposal to transfer the employee to the vacancies he has (see Example 6).

As a rule, the consent or disagreement of the employee in the transfer is drawn up in a separate document or is prescribed in the proposal for transferring to another job (see Example 7).

We would also like to remind you that according to Art. 74 of the Labor Code of the Russian Federation, in the case when, for reasons related to changes in organizational or technological working conditions, the terms of the employment contract determined by the parties cannot be saved, they can be changed at the initiative of the employer, with the exception of changing the labor function of the employee. Moreover, if the employee does not agree to work in the new conditions, the employer is obliged to offer him another available job in writing. In the absence of the specified work or the refusal of the employee from the proposed work, the employment contract is terminated in accordance with paragraph 7 of the first part of Article 77 of the Labor Code of the Russian Federation.

In some situations, an employee may be transferred without his consent for a period of up to one month to work not stipulated by an employment contract with the same employer in order to prevent the following cases or eliminate their consequences. We are talking about natural or man-made disasters, industrial accidents, accidents at work, fires, floods, famine, earthquakes, epidemics or epizootics, as well as any exceptional cases that endanger the life or normal living conditions of the entire population or part of it. .

The transfer of an employee without his consent for a period of up to one month to another job is also allowed in cases of downtime, the need to prevent the destruction or damage to property, or to replace a temporarily absent employee, if these situations are caused by the emergency circumstances indicated above. At the same time, transfer to work requiring lower qualifications is possible only with the written consent of the employee himself (Article 72 of the Labor Code of the Russian Federation). Please note that for temporary transfers carried out in exceptional cases, remuneration is made according to the work performed, but not lower than the average earnings at the previous place of employment.

Note

When applying Art. 72.2 of the Labor Code of the Russian Federation, which allows the temporary transfer of an employee to another job without his consent, it should be borne in mind that the obligation to prove the existence of circumstances with which the law associates the possibility of such a transfer rests with the employer (paragraph 17 of the decision of the Plenum of the Supreme Court dated March 17, 2004 No. 2).

The transfer of an employee is also possible for the period of suspension of work due to the suspension of activities or a temporary ban on activities due to violation of labor protection requirements through no fault of the employee. At this time, the employee, with his consent, can be transferred by the employer to another job with wages for the work performed, but not lower than the average earnings at the previous place of activity (Article 220 of the Labor Code of the Russian Federation).

Transfer to another locality

Transfer order

In this case, the employer sends the employee an offer to transfer to work in another locality. Further, the consent or disagreement of the employee is drawn up in a separate document or prescribed in the transfer proposal itself.

With the consent of the employee, changes to the employment contract should be made. This is done through the signing of an additional agreement. To process the transfer, form No. T-5 or form No. T-5a, approved by Decree No. 1, is used. Then, on the basis of the order, marks are made in the employee’s personal card (form No. T-2 or No. T-2GS (MS)) and personal account ( form No. T-54 or No. T-54a).

Note

The arbitrators in paragraph 16 of the decision of the Plenum of the Supreme Court dated March 17, 2004 No. 2 noted that “other locality” should be understood as an area located outside the administrative-territorial boundaries of the corresponding settlement.

Please note that when an employee moves to work in another locality, the employer is obliged to reimburse him for the following expenses (Article 169 of the Labor Code of the Russian Federation):

• for the relocation of the employee, his family members and the transportation of property (except for cases when the employer provides the employee with appropriate means of transportation);
• for settling in a new place of residence.

The specific amounts of reimbursement of expenses are determined by agreement of the parties to the employment contract. In this case, compensation payments to a citizen in connection with his moving to work in another locality are not subject to personal income tax (clause 3 of article 217 of the Tax Code of the Russian Federation) and unified social tax (subclause 2 of clause 1 of article 238 of the Tax Code of the Russian Federation), and can also be taken into account as part of other expenses (subclause 5, clause 1, article 264 of the Tax Code of the Russian Federation). Financiers also agree with this position (letters of the Ministry of Finance dated July 14, 2009 No. 03-03-06/2/140 and dated December 17, 2008 No. 03-03-06/1/688). At the same time, according to officials, the amounts reimbursed by the organization to the employee renting housing are subject to personal income tax and unified social tax in the usual manner (letters of the Ministry of Finance of July 13, 2009 No. 03-04-06-01 / 165 and of December 17, 2008 No. 03-03-06/1/688).

Employee refusal to transfer

The refusal of an employee to transfer to work in another locality together with the employer is the basis for the termination of the employment contract (clause 9, article 77 of the Labor Code of the Russian Federation). In this case, as in the case of a regular dismissal, form No. T-8 (or form No. T-8a), approved by Resolution No. 1, is used to formalize the termination of employment relations with employees (see Example 8).

On the day of dismissal, the employee, in addition to the amounts due, is paid a severance pay in the amount of two weeks of average earnings (Article 178 of the Labor Code of the Russian Federation). At the same time, an increased amount of severance pay may be established by labor or collective agreements (Article 178 of the Labor Code of the Russian Federation).

In this case, we are talking about the termination of the contract in accordance with paragraph 9 of the first part of Article 77 of the Labor Code (see Example 9).

Further, upon receipt of the work book, the employee signs in a personal card, as well as in the book of accounting for the movement of work books and inserts in them (clause 41 of Resolution No. 225). At the same time, the entry made in the work book is repeated in the personal card (clause 12 of Resolution No. 225).

Footnotes

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We have another question. We are the Voronezh branch of the Enterprise. The head heads the branch on the basis of a power of attorney from the head of the Enterprise. Based on the same power of attorney, he concludes employment contracts with employees. Employees are admitted to the Voronezh branch of the Enterprise. Currently, a situation has arisen when the Voronezh branch cannot provide employees with work, but the Efremov branch has work, and they are ready to take our employees to them. Can we notify employees of a change in the terms of an employment contract and a change not just in a division, but in the branch itself and, accordingly, if an employee refuses to continue working due to a change in the conditions of the TD determined by the parties, we can dismiss him under paragraph 7 of Art. 77 RF. Or is such a notification of changes in the terms of the TD legal within the branch?

Answer

Answer to the question:

In accordance with paragraph 3 of Art. 55 of the Civil Code of the Russian Federation, branches and representative offices are separate divisions that are not legal entities.

A branch is a separate subdivision of a legal entity located outside its location and performing all or part of its functions, including the functions of a representative office. Representative offices and branches are not legal entities. They are endowed with the property of the legal entity that created them and act on the basis of the provisions approved by it (clauses 2 and 3 of article 55 of the Civil Code of the Russian Federation). The head of a separate subdivision is appointed by the head of the organization and acts on the basis of a power of attorney issued to him.

Given that in your organization, branch managers are empowered to hire and fire employees, as well as to resolve other issues related to labor relations, without the participation of the head of the organization, we can say that the organization provides for a decentralized form of management personnel office work.

Even structural unit granted rights and obligations in the field of registration personnel documents, it should be borne in mind that the head of a separate subdivision is authorized to decide personnel matters only within your department.

At the same time, when transferring employees between branches, such a personnel decision must be made by the head (head) of the enterprise. If he (the head of the enterprise) considers it necessary, on his behalf, you can notify employees 2 months in advance about changing the workplace and the area in which the work is performed.

If such a transfer is accompanied by the need to relocate the employee, then simultaneously with the decision to transfer, the issue of compensating the employee’s expenses for his relocation must also be resolved, which will need to be reflected in the additional. agreement) (Article 169 of the Labor Code of the Russian Federation).

We believe that in this situation, the transfer can also be carried out by agreement of the parties.

If the employees agree, then it is necessary to transfer to another permanent job.

Stage 1 Registration of an application for the transfer of an employee to another branch. Since the decision to transfer to another separate structural unit is made by the head of the organization, the application is drawn up in his name. This is not regulated by regulations. This issue is within the competence of the head of the organization and should be resolved at the local level.

Write in a local regulatory act, for example, in the Instructions for HR Records Management, the procedure for processing personnel documents when transferring an employee from one separate division to another, as well as the procedure for transferring personnel documents for further maintenance and storage, the procedure for transferring work books, etc. In practice the completed application, most likely, will be transmitted to the parent organization through the head of a separate division, who, in turn, also decides on the possibility of transferring an employee from his branch. An application from a branch employee can be sent to the parent organization with cover letter. In order to make a decision on the merits of the request, the head of the organization will need to find out the opinion of the head of the branch to which the transfer is supposed. A letter may be sent to the branch to approve the transfer. After all the necessary approvals, the head of the organization decides on the execution of the translation

Stage 2 Transfer of the employee's documents from the branch to the parent organization. In practice, the transmission of documents can be done by mail in valuable or by registered mail or personally by employees personnel services. The most reliable, of course, will be the personal transfer of documents. It is desirable to accompany the transfer of documents from the branch and their receipt at the parent organization with an appropriate act.

When transferring from a branch to a branch, an employee continues to work for the same employer. Therefore, it will be illegal to dismiss an employee in this case, since there are no grounds for terminating an employment contract.

Stage 3 Registration of an additional agreement to the employee's employment contract. Further, the parent organization draws up an additional agreement to the employee's employment contract, which reflects all the new conditions associated with work in another separate structural unit.

Stage 4 Issuance of an order to transfer to another permanent job. The transfer of an employee to another permanent job is formalized by issuing an order (instruction) in a unified form No. T-5 (approved by the Decree of the State Statistics Committee of Russia of 01/05/2004 No. 1 "On approval of unified forms of primary accounting documentation for accounting for labor and its payment"; further - resolution No. 1) (example 8).

Stage 5 Transfer of the employee's documents from the parent organization to the branch. After drawing up an additional agreement and an order for transfer, the employee's documents are transferred for further maintenance and storage to the branch where the employee will work. Thus, a work book, an employee's personal card, a copy of the order to transfer to another job, an additional agreement to the employment contract and a personal file (if maintained) are transferred to the branch.

Stage 6 Making an entry about the transfer to another permanent job in the employee's work book. Information about the temporary transfer is not entered.

Stage 7 Making a record of the transfer in the employee's personal card.

In addition, an employee can quit on his own initiative, and then conclude an employment contract for work in a new branch.

Details in the materials of the System Personnel:

1.Answer: How to change the employment contract

I.I. Shklovets

Reasons for change

In what cases it is necessary to make changes to the employment contract with the employee

The need to amend an employment contract arises when the information or conditions contained in it change. In this case, it does not matter which terms of the contract need to be changed: or.

In the general case, changes to an employment contract can only be made by mutual agreement of its parties (). In this case, both the employee and the employer () can be the initiator of changes. In addition, in exceptional cases, under certain circumstances, the organization may change the employment contract in ().

How to make changes

How to amend an employment contract with an employee

By general rule the procedure for amending an employment contract is to draw up written agreement between employee and employer. standard form there is no such document in the law. Therefore, the organization can compile it in any form in the form. This conclusion follows from the Labor Code of the Russian Federation and is confirmed.

The supplementary agreement is an integral part of the employment contract. Therefore, make it in two copies - one for each side. The fact that the employee received his copy of the supplementary agreement will confirm his signature on the copy of the employer. This conclusion allows us to draw Article 67 of the Labor Code of the Russian Federation.

If in an organization, then fix in it the issuance of a copy of the additional agreement to the employee.

Change registration example mandatory conditions employment contract

The organization has vacant position accountant, to which the cashier A.V. Dezhnev.

To amend the employment contract with Dezhneva, it was drawn up. On the basis of the agreement, an order was issued and announced to the employee under signature. An entry about the transfer to another position was made in Dezhneva's work book and in her personal card in the form No. T-2.

Special cases of changing the employment contract

In what cases should changes be made to an employment contract with an employee in a special order?

In some cases, before drawing up an additional agreement to an employment contract, it is necessary to complete a number of procedures provided for by law. In particular, this applies to changes in the employment contract for reasons related to.

At the same time, it does not matter which terms of the contract need to be changed: mandatory or additional. In the general case, it is possible to make changes to an employment contract only with the mutual consent of its parties (Article 72 of the Labor Code of the Russian Federation). At the same time, both the employee and the employer can be the initiator of changes (Chapter 12 of the Labor Code of the Russian Federation). In addition, in exceptional cases, under certain circumstances, the organization may change the employment contract unilaterally (Article 74 of the Labor Code of the Russian Federation). The procedure for amending an employment contract How to amend an employment contract with an employee As a general rule, the procedure for amending an employment contract is to draw up a written agreement between the employee and the employer. The standard form of such a document is not established in the legislation. Therefore, the organization can draw it up in any form in the form of an additional agreement to the employment contract.

How to arrange a transfer to another branch?

Transfer to another job in accordance with the medical report In some cases, the employer is obliged to transfer the employee to another, more light work with his written consent and in accordance with a medical report issued in accordance with the procedure established by federal laws and other regulations Russian Federation. The transfer should be carried out in relation to employees who need light work for health; pregnant women and women with children under the age of one and a half years; employees who have received an injury or other damage to their health at work. In these cases, the transfer order is issued on the basis of the employee's application and the relevant medical report. When an employee is transferred to an easier, lower-paid job for health reasons, he retains the previous average earnings within one month from the date of transfer.

Rules for transferring an employee to a branch

In such cases, the employee is provided with certain guarantees: the employee must be notified in writing by the employer of the introduction of these changes no later than two months before the innovation; if the employee does not agree to continue working in the new conditions, the employer is obliged in writing to offer him another job available in the organization that corresponds to his qualifications and state of health, and in the absence of such work - a vacant lower-paid position or lower-paid work that the employee can perform taking into account his qualifications and health status. In addition, if a change in organizational or technological working conditions may lead to mass layoffs of workers, the employer, in order to save jobs, has the right, taking into account the opinion of the trade union body of the organization, to introduce a part-time regime for up to six months.

Employee transfer

In the case of the development of a systematic branch network, it is more convenient to develop a regulation on the compensation of expenses to employees, where to establish uniform norms for the reimbursement of expenses for moving employees to new places of work. If one or two employees move to another locality, it is enough to include the conditions for reimbursement of expenses in an additional agreement to the employment contract. Transfer order. After the parties sign an additional agreement to the employment contract, the manager issues an order to transfer the employee to work in another area.
Entry in the workbook. Transfer to a permanent place of work is accompanied by an entry in the work book (clause 12 of the Rules for maintaining and storing work books, preparing work book forms and providing employers with them, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225 “On work books”).

How to transfer staff from one company to another

Obligations of the employer in connection with the transfer of an employee to a branch Let's consider what obligations an employer has in connection with the transfer of an employee from the head office to a regional branch. Save your job. The obligation to keep the employee in his former workplace depends on the term of the transfer. In the event of a temporary transfer, the employee retains his/her previous job.

Info

If, at the end of the transfer period, he did not demand a return to his workplace 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 (part 1 of article 72.2 of the Labor Code of the Russian Federation). In the case of a permanent transfer, the employer is not obliged to keep the previous workplace for the employee. Reimburse travel expenses. If the move to another locality is due to a transfer to a new place of work, the employer is obliged to bear the following costs (art.

And finally, an important guarantee is that changes in the essential terms of the employment contract, introduced in accordance with Article 74 of the Labor Code of the Russian Federation, cannot worsen the position of the employee in comparison with the conditions collective agreement and agreements. If the former essential conditions labor cannot be saved, and the employee does not agree to continue working in the new conditions, the employer is obliged in writing to offer him another job available to him, corresponding to the qualifications and state of health of the employee. In the absence of such work, the employee is offered a vacant lower position or a lower-paid job, taking into account the qualifications and state of health of the employee.

Attention

And if the employment contract did not specify "advertising department" as a place of work, this would be a relocation, which would cause much less hassle.
If such a transfer is accompanied by the need to relocate the employee, then simultaneously with the decision to transfer, the issue of compensating the employee’s expenses for his relocation must also be resolved, which will need to be reflected in the additional. agreement) (Article 169 of the Labor Code of the Russian Federation). We believe that in this situation, the transfer can also be carried out by agreement of the parties. If the employees agree, then it is necessary to transfer to another permanent job.
Stage 1 Registration of an application for the transfer of an employee to another branch. Since the decision to transfer to another separate structural unit is made by the head of the organization, the application is drawn up in his name. This is not regulated by regulations. This issue is within the competence of the head of the organization and should be resolved at the local level.

For example, an employee was transferred to another structural unit without changing the labor function, but in the process of working in a new structural unit, it turns out that there is a certain specificity that automatically leads to an expansion of the circle official duties, increase in the volume of work, etc. The transferred employee begins to resent, demand changes to the employment contract and, as a result, an increase wages- there is a conflict situation. Since it is sometimes quite difficult to calculate the change in the labor function at the stage of moving an employee from one structural unit to another, then HR specialist better to play it safe to avoid conflict situation in the future. The procedure for registering the transfer of an employee is the same as for the transfer.

Accounting We will show the procedure for reflecting in accounting the reimbursement of expenses by the employer to an employee when moving from one region to another using an example. Example. The manager of the corporate management department of the Stavropol branch of LLC Rassada, S. T. Pulya, was transferred to work in the Vladimir branch as a senior manager with a salary of 50,000 rubles. per month.

The accounting department of Rassada LLC issued an advance payment to S. T. Poole for the move in the amount of 35,000 rubles. AT additional agreement to the employment contract, it is established that the company compensates the employee for documented expenses: - for the employee's travel with his family from the city of Stavropol to the city of Vladimir in a reserved seat train car; - transportation of property; - daily allowance for travel days.

After the move, the employee applied to the director of the Vladimir branch with a statement in which he stated a request to compensate for the costs incurred for the move. See sample application.

• Topics:
• Employee transfer

Question We have another question. We are the Voronezh branch of the Enterprise. The head heads the branch on the basis of a power of attorney from the head of the Enterprise. Based on the same power of attorney, he concludes employment contracts with employees. Employees are admitted to the Voronezh branch of the Enterprise. Currently, a situation has arisen when the Voronezh branch cannot provide employees with work, but the Efremov branch has work, and they are ready to take our employees to them. Can we notify employees of a change in the terms of an employment contract and a change not just in a division, but in the branch itself and, accordingly, if an employee refuses to continue working due to a change in the conditions of the TD determined by the parties, we can dismiss him under paragraph 7 of Art. 77 RF.

Considering that in your organization, branch managers are empowered to hire and dismiss employees, as well as to resolve other issues related to labor relations, without the participation of the head of the organization, we can say that the organization provides for a decentralized form of personnel records management. Even if a structural subdivision has been granted rights and obligations in the field of processing personnel documents, it should be borne in mind that the head of a separate subdivision is authorized to resolve personnel issues only within his subdivision. At the same time, when transferring employees between branches, such a personnel decision must be made by the head (head) of the enterprise.

If he (the head of the enterprise) considers it necessary, on his behalf, you can notify employees 2 months in advance about changing the workplace and the area in which the work is performed.