Can I be transferred to a lower paid job? Transfer to a lower paid position

In the new conditions, many enterprises are trying to reorganize unprofitable production or simply optimize the work of staff. All this is accompanied by either a reduction in the number of employees, or the reduction of a number of positions and the creation of new ones corresponding to the new profile, or a reshuffle of personnel. How should an employer transfer employees to new jobs, also with a salary reduction?

It’s worth mentioning right away that the material will not talk about cases of forced transfer provided for by Art. 170 and 178 of the Labor Code, as well as on short-term transfer due to production needs (Articles 33, 34 of the Labor Code), and transfer to another enterprise.

Depending on what exactly the employer intends to change in the employee’s work, the legislator has provided for the possibility of relocation and actual transfer. If the changes concern the workplace, structural unit in the same area, mechanism or unit, but within the same enterprise, specialty, qualification or position, the employee’s consent is not required. This is considered a movement of the employee, carried out only on the basis of an order from the employer (preferably justified).

However, if changes in the employee’s status are associated with a change of position (specialty, place of work, etc.), this will already be a change essential conditions labor, which cannot but require the consent of the employee (Article 32 of the Labor Code). In this case, experts offer two options:

1. reduce the position (staffing unit) in which the employee previously worked and offer him work in another position in another structural unit (provisions of Article 49-2 of the Labor Code);
2. transfer the employee to another (probably lower-paid) position with his consent (transfer itself).

The employer's action algorithm in the first case (even if we're talking about on the reduction of some positions and the introduction of others) is similar to that described in the mentioned material. Therefore, the publication decided to pay attention to the translation procedure.

In essence, a transfer is a change in essential working conditions. Therefore, the employer is not bound by the will of the employee, because in case of disagreement, the employment contract is simply terminated on the basis of clause 6 of Art. 36 Labor Code. That is, the employee has little choice: either agree to the transfer or look for a new job, which is often unacceptable in a crisis.

Translation issues are regulated by Art. 32 Labor Code. The basis for optimizing the work of personnel is the fairly broadly interpreted concept of changes in the organization of production and labor, the decision to implement which is made by the employer (in agreement with the trade union, if there is one).

In order for their consequences to be lawful, they must first be recorded, i.e., issue an appropriate order (instruction), which indicates the rationale and content of the changes, and also gives instructions officials to implement such changes, including optimizing the work of personnel.

Despite the fact that in Art. 32 transfer issues are dealt with separately from changes in essential working conditions; it is generally accepted that a similar procedure must be followed when transferring. That is, two months before the implementation of changes, employees who are offered a transfer should be notified of all changes, including salary changes.

To do this, they must be familiarized with the order on changes in the organization of production and labor in person, against signature and in front of witnesses. The employee has the right to disagree with the transfer (slave labor is prohibited), but in doing so he will be fired. By the way, the employer should carefully observe all formalities, since it is quite likely that employees who disagree with the employer’s decision will go to court. This is especially true for the rationale for making a decision on a transfer, because it may be recognized by the court as untenable, as a result of which the employee will be reinstated (clause 31 of the resolution of the Plenum of the Armed Forces of Ukraine “On the practice of considering labor disputes by courts”).

Next, after 2 months, an appropriate transfer order should be issued, changes should be made to the employment contract and a corresponding entry should be made in the work book. If employees do not give consent and are subject to dismissal, an order is issued for their dismissal under clause 6 of Art. 36 (with payment of severance pay) or according to paragraph 1 of Art. 36, and information is also submitted to the employment service (according to paragraph 4 of Article 20 of the Law “On Employment”).

An employee of the HR department, in a conversation with a correspondent of the publication, pointed out some of the difficulties in implementing this method. In particular, the employer cannot always justify its decision to transfer in the event of a claim from a dissatisfied employee. In this case, according to the expert, it is much easier to invite the employee to write an application for transfer by at will(but for this it is necessary to offer him more or less acceptable conditions). Then the employer will not have to wait two months to transfer him. If the employee does not agree, any of the options described above can be applied at the employer’s discretion.

By the way, the employer should not forget about the provisions of Art. 114 of the Labor Code, which obliges to pay an employee transferred to a lower-paid job the previous salary for two weeks, and in the case of a transfer with a reduction in salary for reasons independent of the employee - for 2 months.

Conclusion

So, you can transfer an employee to another (lower paid) position either by making a change to the staffing table (by reducing old ones and introducing new positions (staffing units), or by obtaining the employee’s consent to transfer to another position. The employee’s refusal in both cases entails termination of the employment contract .

The best option for the latter is for the employee to write an application for transfer at his own request, which does not require a two-month wait for changes to be made.

In general, if the employer decides to carry out a reorganization (optimization of personnel work, rationalization of jobs, reassignment, etc.), the only decision that depends on the employee is whether to continue labor Relations with him in a new status or stop them altogether.

There are cases when an employer decides to transfer an employee to a position whose pay is lower than the previous one. Is it possible to transfer to a lower-paid position without the employee’s consent? Let's try to figure it out.

Transfer to another job

• labor function (change in the type of assigned work);
• a structural unit within the same employer (if such a unit was specified in the employment contract);
• locality together with the employer (moving beyond the administrative boundaries of the previous locality).

The transfer can be temporary or permanent. By general rules To transfer an employee, his consent is required. But the legislation also provides for cases when an employee can be transferred without his consent.

Labor legislation prohibits the transfer of an employee to work if new job will be contraindicated for medical reasons.

Transfer to another job without the employee’s consent

Without the consent of the employee, he can be transferred only in the event of dangerous circumstances that threaten the lives of the population.

Such circumstances include:

• natural or man-made disasters;
• industrial accidents;
• industrial accident;
• earthquake, fire, famine, flood, epizootic or epidemic and other exceptional cases that threaten normal living conditions or the life of the population.

In addition, a temporary transfer without the employee’s consent is possible if the above situations caused:

• downtime (temporary suspension of work for reasons of organizational, technological, economic or technical nature);
• the need to prevent property damage;
• replacing an employee who is temporarily absent.

Transfer in all these cases can be carried out only for the purpose of eliminating or preventing the consequences of emergency circumstances. The period of transfer without the employee’s consent cannot be more than one month.

But even in such exceptional situations, a transfer in which the employee must work in a job requiring lower qualifications is possible only with the written consent of the employee.

Transfer due to production necessity: without the employee’s consent?

The Labor Code does not define the term “production necessity”. As a rule, in practice it means changes in technological or organizational working conditions. They are mentioned in Art. 74 Labor Code of the Russian Federation. In such cases, changes in working conditions are possible without the consent of the employee. But only if they do not relate to the employee’s labor functions.

Therefore, if there is a production need (caused by technological or organizational changes in working conditions), it is possible to transfer an employee without his consent:

• from one structural unit to another within the same company;
• from one locality to another together with the employer.

The employer must notify the employee of such changes in advance - two months in advance. If the employee does not agree with such changes, the employer must offer him another job that he can perform taking into account his state of health.

If there is no such work or if the employee does not agree with the employer’s proposals, then the employment contract with him is terminated.

Agibalov Ivan Ivanovich(01/21/2016 at 14:39:31)

Hello. Which personnel documents Is it necessary to formalize if, due to reorganization, a department is abolished, but employees remain with their functions? Due to the change organizational structure branch, the department is abolished, several groups are created, which include employees of the abolished department while retaining labor function(same position) and official salaries. The name of the department was included in the conditions. What personnel documents does the employer need to prepare in this situation? 12/10/2012 07:03:49 Answers 1 Expert In accordance with part one of Art. 72.1 of the Labor Code of the Russian Federation, a permanent or temporary change in the structural unit in which the employee works, while continuing to work for the same employer, is recognized as a transfer of the employee to another job if the structural unit was indicated in the employment contract. In this case, structural divisions should be understood as branches, representative offices, as well as departments, workshops, areas, etc. (clause 16 of the resolution of the Plenum of the Russian Federation dated March 17, 2004 N 2 “On the application by courts Russian Federation Russian Federation", hereinafter referred to as Resolution No. 2). Since in the situation under consideration the structural unit is indicated in the employment contracts of employees, the transfer to the newly formed structural units of the branch is a change in the terms of their employment contracts. The condition of the structural unit specified in the employment contracts of employees may be changed either by agreement of the parties (Article 72 of the Labor Code of the Russian Federation), or at the initiative of the employer (without the consent of the employee) in the manner prescribed by Article 74 of the Labor Code of the Russian Federation. However, this is allowed only if there are reasons related to changes in organizational or technological working conditions, when maintaining the previous condition on the structural unit in the employment contract is impossible (see also clause 21 of Resolution No. 2). In the absence of such reasons, the employer does not have the right to unilaterally change the terms of the employees’ employment contracts. However, if the employees agree to the relevant changes, it is enough for the parties to conclude additional agreement to employment contract in accordance with Art. 72 of the Labor Code of the Russian Federation, which will indicate a change in place of work (indicate the structural unit to which the employee is transferred). Based on the additional agreements signed by the parties, the employer issues an order for transfer to another structural unit using the unified form N T-5a (or the unified form N T-5), approved by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 N 1. Employees in mandatory must be familiarized with this order, and on its basis a corresponding entry about the transfer is made (part four of Article 66 of the Labor Code of the Russian Federation, clause 4 of the Rules for maintaining and storing work books, producing work book forms and providing them to employers, approved by the Decree of the Government of the Russian Federation dated 04/16/2003 N 225, hereinafter referred to as the Rules). All records about work performed, transfer to another permanent job are entered into work book on the basis of the relevant order (instruction) of the employer no later than a week (clause 10 of the Rules). Information about the transfer is also indicated in section III"and transfers to another job" of the employee's personal card (unified form N T-2), in which he must put his signature in the corresponding one. The answer was prepared by: Expert of the Legal Consulting Service GARANT Aleksandr Arzamastsev Quality control of the response: Reviewer of the Legal Consulting Service GARANT Kudryashov Maxim The material was prepared on the basis of an individual written consultation provided as part of the Legal Consulting service GARANT. http://www.podborkadrov.ru/forums/read.php?FID=80&TID=3958

Latest questions on the topic: ""

Transfer to a lower paid job

I work in a motorcade technical controller. From October 1st, the administration changes the working conditions, transfers him to a guard under a contract, is this legal?

Vladimir, Velikiye Luki

Transfer to another position at the initiative of the employer

Lawyer: Elena Barkova

offline now

Good afternoon.

No it's not legal.

Changing the terms of an employment contract determined by the parties is allowed only by written agreement of the parties to the employment contract (Article 72 Labor Code RF). The Labor Code of the Russian Federation does not contain any restrictions on changing the employment contract by agreement of the parties while the employee is on maternity leave.
A change in the structural unit in which the employee works (if the structural unit was specified in the employment contract) is considered a transfer to another job. Transfer to another job permitted only with the written consent of the employee, except for the cases provided for in parts 2 and 3 of Art. 72.2 of the Labor Code of the Russian Federation (Article 72.1 of the Labor Code of the Russian Federation).

according to Art. 74 of the Labor Code of the Russian Federation provides for the possibility of changing the terms of an employment contract unilaterally, at the initiative of the employer, in the event of a change in organizational or technological working conditions (changes in equipment and production technology, structural reorganization of production, other reasons). At the same time, changing the labor function on this basis is not allowed. Labor function - work according to the position in accordance with staffing table, profession, specialty indicating qualifications; specific type work assigned to the employee (Article 57 of the Labor Code of the Russian Federation).

If the terms of the employment contract are changed at the initiative of the employer, o p upcoming changes, as well as the reasons that necessitated such changes, the employer is obliged to notify the employee in writing Not later than two months. At the same time, the employer must have evidence justifying changes in organizational or technological working conditions and, as a consequence, a change in the structural unit to which you are transferred or established payment labor.

If the employee does not agree to work under the new conditions, the employer is obliged to offer him in writing another job available to the employer (as vacant position or a job that corresponds to the employee’s qualifications, as well as a vacant lower position or lower paid job) that the employee can perform taking into account his state of health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements.
With absence said work or the employee refuses the proposed job, the employment contract is terminated in accordance with clause 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation.

Consequently, the employer can send the employee a notice of changes in the terms of the employment contract under Art. 74, but does not have the right to oblige the employee to do or sign anything. The employer can only invite the employee to come to work to conclude an additional agreement to the employment contract.

The head of the enterprise wants to transfer to a lower position (several levels at once from group leader to engineers) without my consent. What are my actions?

Ivan, Anna

Transfer to another position at the initiative of the employer

Lawyer: Ilya Veretennikov

online now

Good afternoon Ivan!

The incident you encountered is unfortunately not uncommon in our country. According to the Labor Code of the Russian Federation, Art. 72 - transfer of an employee to a lower-paid position is possible only by agreement of the parties, with the exception of cases provided for in Parts 2 and 3 of Art. 72.2. (action of natural events and downtime of enterprises), but the effect of Art. 72.2. It probably won't apply to your situation. The Labor Code of the Russian Federation does not provide for any other basis for transfer, except for the cases provided for in Art. 74 (paragraph 3 - which provides for the right and obligation of the employer to offer you, “including a vacant lower position or lower paid job”), but this case is most likely not applicable to your situation. To summarize what has been said, we can conclude that most likely the employer is inducing you to resign at your own request, transferring you to a lower position. You need to understand one thing - without the agreement of the parties, a transfer is impossible, and if the employer has undergone any structural or organizational changes, he must prove them in order to justify the demotion. My advice to you is not to sign anything and write a statement to the labor inspectorate so that if necessary you have evidence.

Transfer to a lower paid position

Hello! I'm working at the beginning. factory production. At the end of August, I received a written notification that from August 26, 2014, part of the production structures were being transferred from under my subordination to the direct subordination of the general director, from November 1, changes were made by order to the management structure and, due to the reduced volume of work I perform, they came up with new position with a salary half the existing one, and were also offered a number of other lower-level positions. I refused all offers in writing. Question: What further actions should I expect from the employer? Thank you.

Dmitry, Mr.

Transfer to another position at the initiative of the employer

Lawyer: Dmitry Bondaryuk

online now

Hello.

Article 74. Changes in the terms of the employment contract determined by the parties for reasons related to changes in organizational or technological working conditions

In the event that, for reasons related to changes in organizational or technological working conditions (changes in equipment and production technology, structural reorganization of production, other reasons), the terms of the employment contract determined by the parties cannot be preserved, they may be changed at the initiative of the employer, with the exception of changes in the employee’s labor function.
The employer is obliged to notify the employee in writing about upcoming changes to the terms of the employment contract determined by the parties, as well as about the reasons that necessitated such changes, unless otherwise provided by this Code.
If the employee does not agree to work under the new conditions, then the employer is obliged to offer him in writing another job available to the employer (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower paid job), which the employee can perform taking into account his health status. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.
If there is no specified work or the employee refuses the offered work, the employment contract is terminated in accordance with paragraph 7 of part one of Article 77 of this Code.

If the employer did everything correctly, then dismissal will follow.

The employee is temporarily transferred to a position with a lower average salary with his written consent for the period of absence of the main employee. Is the employer obliged to pay extra up to the average salary at the main place of work of this employee?

Answer