Can I be transferred to a lower paying job? Temporary transfer to another job according to the Labor Code of the Russian Federation

August 13, 2014

Accounting news, No. 18

Underpaid work is understood as another vacant position in the company with a lower salary, as well as work in the same full-time position, but, for example, not on a full-time basis.

The transfer of an employee to a lower-paid job can occur for several reasons:

1. Personal interest of the employee in this work

Usually associated with desire. career development worker. For example, in the process labor activity employee receives a new additional education. If there is a vacant position in the organization where he works, then in order to gain practical experience or seniority in a new specialty, it is the employee who is interested (i.e., is the initiator) in transferring him to the existing job, even if the remuneration is significantly below.

2. Urgent need to change working conditions for family reasons

So, the presence of a minor child forces the employee to switch to work with a different working hours in order to take care of the baby. In this situation, the employee's interest in transferring to a lower paid, but “convenient” (more preferable in specific life circumstances) work mode is clearly expressed.

3. Personal initiative of the employer

For example, an employer changes staffing which does not provide for the position occupied by the employee. In such a situation, the employer is obliged to offer such an employee work in the order of employment, including lower-paid work. The employee is forced to make a decision: to agree or disagree with the offer, realizing that the refusal of the proposed work is one of the reasons for terminating the employment contract with him.

4. The state of health of the worker

If an employee, as a result of a deterioration in his state of health, cannot continue to perform his previous job for medical reasons, the employer is obliged to remove such an employee from work, offering him vacant positions corresponding to his qualifications and below, including a lower-paid job.

In any case, whatever the reason for transferring an employee to a lower paid job, this event can occur only with the consent of the employee.

If the transfer is at the initiative of the employee, then the employer must request from the employee a personal statement (preferably indicating the reason) and a medical certificate (if the transfer is for health reasons). 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 (Article 182 of the Labor Code of the Russian Federation).

If the transfer is carried out at the initiative of the employer, then the employer must notify the employee in writing about upcoming changes in working conditions at least two months in advance.

For two months, the employee must continue to fulfill his obligations under the employment contract. After this period, he either agrees or disagrees with the transfer and changes in working conditions.

The employee's consent to the transfer must be obtained in writing (for example, the employee's application for the transfer, the employee's handwritten signature on the transfer order "I agree with the transfer").

If the employee does not agree to the transfer and new working conditions, he may be dismissed under paragraph 7 of Art. 77 of the Labor Code of the Russian Federation (an employee's refusal to continue working due to a change essential conditions employment contract).

Transfer without the consent of the employee in case of production necessity

In exceptional cases, you can temporarily transfer an employee to another job without his consent. Such cases are listed in Art. 74 Labor Code RF.

These include the transfer of an employee:

to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, accident or natural disaster;
to prevent accidents, downtime (temporary suspension of work due to economic, technological, technical or organizational reasons), destruction or damage to property;
to replace an absent employee.

In these cases, the employee may be transferred to work not stipulated by the employment contract with him. The specialty or qualification of the employee is not taken into account. In this case, the transfer is possible several times during the year, but each time for no more than one month.

However, an employee cannot be transferred to work that is contraindicated for him for health reasons.

Please note: the duration of the transfer to another job to replace a temporarily absent employee cannot exceed one month during calendar year(from January 1 to December 31).

If temporary work is paid lower, then the salary should not be lower than the average earnings of the employee at the previous place of work.

Shortened working day, shortened working week

abbreviated work time- norm of working hours of less than 40 hours per week, established for the purpose of labor protection of employees certain categories, For example:

for employees under the age of 16, the norm of working time is no more than 24 hours a week,
for employees aged 16 to 18 - no more than 35 hours per week,
for employees who are disabled people of group I or II - no more than 35 hours a week;
for employees whose working conditions at their workplaces, based on the results special evaluation working conditions are classified as harmful conditions labor 3 or 4 degree or dangerous working conditions - no more than 36 hours a week;
for pedagogical, medical and other categories of workers, reduced working hours may be established by federal law.

If an employee has a reduced working time, this does not affect the amount of his remuneration, because. the worker fulfills the norm of working hours put to him.

The establishment of part-time work should be distinguished from reduced working time.

part-time work

Part-time work is established by mutual agreement of the parties to the employment contract and is optional. Reducing the duration of working hours is mandatory in the cases listed above.

Part-time work can be established not only at the request of the employee, but also at the initiative of the employer. The introduction of such a regime in organizations is a special case of changing the essential terms of the employment contract at the initiative of the employer. Therefore, the employee must be notified of this in writing two months in advance (part 2 of article 73 of the Labor Code of the Russian Federation).

Part-time work is established in the form of part-time work week, part-time work day, or part-time work week and part-time work at the same time.

In this case, wages are paid in proportion to the time worked by the employee or depending on the amount of work performed by him. Part-time work does not affect the duration of the annual basic leave, as well as the calculation of seniority and other labor rights (Article 93 of the Labor Code of the Russian Federation).

It should be noted that the establishment of part-time work must be reflected in the employment contract with the employee. The mode of work and rest is one of the essential conditions of the employment contract (Article 57 of the Labor Code of the Russian Federation). Reduced working hours should also be mentioned in the employment contract.

August 13, 2014

Accounting news, No. 18

Underpaid work is understood as another vacant position in the company with a lower salary, as well as work in the same full-time position, but, for example, not on a full-time basis.

The transfer of an employee to a lower-paid job can occur for several reasons:

1. Personal interest of the employee in this work

Usually this is due to the desire for career growth of the employee. For example, in the process of labor activity, an employee receives a new additional education. If there is a vacant position in the organization where he works, then in order to gain practical experience or seniority in a new specialty, it is the employee who is interested (i.e., is the initiator) in transferring him to the existing job, even if the remuneration is significantly below.

2. Urgent need to change working conditions for family reasons

3. Personal initiative of the employer

For example, the employer changes the staffing table, which does not provide for the position held by the employee. In such a situation, the employer is obliged to offer such an employee work in the order of employment, including lower-paid work. The employee is forced to make a decision: to agree or disagree with the offer, realizing that the refusal of the proposed work is one of the reasons for terminating the employment contract with him.

4. The state of health of the worker

In any case, whatever the reason for transferring an employee to a lower paid job, this event can occur only with the consent of the employee.

If the transfer is at the initiative of the employee, then the employer must request from the employee a personal statement (preferably indicating the reason) and a medical certificate (if the transfer is for health reasons). When an employee is transferred to an easier lower-paid job for health reasons, he retains his previous average earnings for one month from the date of transfer (Article 182 of the Labor Code of the Russian Federation).

If the transfer is carried out at the initiative of the employer, then the employer must notify the employee in writing about the upcoming changes in working conditions at least two months in advance.

If the employee does not agree to the transfer and new working conditions, he may be dismissed under paragraph 7 of Art. 77 of the Labor Code of the Russian Federation (refusal of the employee to continue work due to a change in the essential terms of the employment contract).

Transfer without the consent of the employee in case of production necessity

In exceptional cases, you can temporarily transfer an employee to another job without his consent. Such cases are listed in Art. 74 of the Labor Code of the Russian Federation.

These include the transfer of an employee:

to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, accident or natural disaster;
to prevent accidents, downtime (temporary suspension of work due to economic, technological, technical or organizational reasons), destruction or damage to property;
to replace an absent employee.

However, an employee cannot be transferred to work that is contraindicated for him for health reasons.

Please note: the duration of a transfer to another job to replace a temporarily absent employee cannot exceed one month during a calendar year (from January 1 to December 31).

If temporary work is paid lower, then the salary should not be lower than the average earnings of the employee at the previous place of work.

Shortened working day, shortened working week

Reduced working hours - the norm of working hours lasting less than 40 hours per week, established for the purpose of labor protection of workers of certain categories, for example:

for employees under the age of 16, the norm of working time is no more than 24 hours a week,
for employees aged 16 to 18 - no more than 35 hours per week,
for employees who are disabled people of group I or II - no more than 35 hours a week;
for employees whose working conditions at their workplaces, according to the results of a special assessment of working conditions, are classified as harmful working conditions of the 3rd or 4th degree or dangerous working conditions - no more than 36 hours a week;
for pedagogical, medical and other categories of workers, reduced working hours may be established by federal law.

If an employee has a reduced working time, this does not affect the amount of his remuneration, because. the worker fulfills the norm of working hours put to him.

The establishment of part-time work should be distinguished from reduced working time.

part-time work

Part-time work is established by mutual agreement of the parties to the employment contract and is optional. Reducing the duration of working hours is mandatory in the cases listed above.

Part-time work is established in the form of part-time work week, part-time work day, or part-time work week and part-time work at the same time.

LABOR LAW OPINION

on the issue of unilateral transfer of employees, including transfer to a lower-paid position

Question: Is the head of an organization entitled to transfer an employee, including his deputy, to another, lower position and / or lower-paid job without the written consent of the employee, in the case when the Charter of the federal public institution it is stated: "The head of the FGU ....: appoints and dismisses employees, distributes duties among his deputies."

Answer:

In accordance with Article 5 of the Labor Code of the Russian Federation, “norms labor law contained in other federal laws, as well as local regulations, must comply with the Labor Code. In case of conflicts between the Labor Code and other federal law, as well as local normative act containing labor law norms, the Labor Code is applied”. The norms of the Labor Code have greater legal force than the Charter of a federal state institution. Based on this, the head of the organization cannot transfer an employee to a lower position and / or a lower paid job and salary without his consent. Thus, the unilateral transfer of an employee to a lower paid position is illegal.

In accordance with Article 57 of the Labor Code of the Russian Federation, the essential terms of an employment contract include:

Place of work, and in the case when an employee is hired to work in a branch, representative office or other separate structural unit organization located in another locality - place of work indicating a separate structural unit and its location;

- labor function(work according to the position in accordance with the staff list, profession, specialty, indicating qualifications; specific type of work assigned to the employee).

Date of commencement of work, and in the case when an urgent employment contract, - also the period of its validity and the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract in accordance with this Code or other federal law;

- conditions of remuneration (including the size of the tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments);

Mode of working time and rest time (if for this employee it differs from general rules operating for this employer);

Compensation for hard work and work with harmful and (or) dangerous working conditions, if the employee is hired in appropriate conditions, indicating the characteristics of working conditions at the workplace;

The conditions governing necessary cases nature of work (mobile, traveling, on the road, other nature of work);

Condition on compulsory social insurance of an employee in accordance with this Code and other federal laws;

Based on article 72 of the Labor Code of the Russian Federation:

“Changing the terms of the employment contract determined by the parties, including transfer to another job, is allowed only by agreement of the parties to the employment contract, except for the cases provided for by this Code. An agreement to change the terms of an employment contract determined by the parties is concluded in writing.

Article 72.1. The Labor Code of the Russian Federation also states that a transfer to another, including a lower paid, job is allowed only with the consent of the employee:

“Transfer to another job is a permanent or temporary change in the labor function of an employee and (or) the structural unit in which the employee works (if 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 with the employer. Transfer to another job is allowed only with the written consent of the employee.

Cases when the consent of the employee for the transfer is not required are also provided for in the Labor Code of the Russian Federation:

“Article 72.1 of the Labor Code of the Russian Federation: “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. And the position and salary are certain parties to the terms of the employment contract.

Article 72.2. TKRF: “In the event of a natural or man-made disaster, industrial accident, industrial accident, 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, an employee may be transferred without his consent for a period of up to one month to work not stipulated by the employment contract 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 of 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 extraordinary circumstances. At the same time, transfer to work requiring lower qualifications is allowed only with the written consent of the employee.

Article 73 of the Labor Code of the Russian Federation:

“If an employee who, in accordance with a medical report, needs a temporary transfer to another job for a period of up to four months, refuses to transfer or the employer does not have a corresponding job, then the employer is obliged to remove the employee from work for the entire period specified in the medical report while maintaining the place of work (positions). During the period of suspension from work, wages are not accrued to the employee, with the exception of cases provided for by this Code, other federal laws, a collective agreement, agreements, and an employment contract.

If, in accordance with a medical report, an employee needs a temporary transfer to another job for a period of more than four months or a permanent transfer, then if he refuses to transfer or if the employer does not have the appropriate job, the employment contract is terminated in accordance with clause 8 of part one of Article 77 of this Code .

Employment contract with the heads of organizations (branches, representative offices or other separate structural units), their deputies and chief accountants, needy according to the medical report in a temporary or permanent transfer to another job, in case of refusal to transfer or if the employer has no corresponding job, it is terminated in accordance with paragraph 8 of part one of Article 77 of this Code. The employer has the right, with the written consent of these employees, not to terminate the employment contract with them, but to suspend them from work for a period determined by agreement of the parties. During the period of suspension from work, wages are not accrued to these employees, except for the cases provided for by this Code, other federal laws, a collective agreement, agreements, and an employment contract.

Article 74 technological conditions labor

“In the case when, for reasons related to changes in organizational or technological working conditions (changes in engineering and production technology, structural reorganization of production, other reasons), the terms of the employment contract determined by the parties cannot be saved, they can be changed at the initiative of the employer, except for changes in the work function of the employee.

The employer is obliged to notify the employee in writing about upcoming changes in the terms of the employment contract determined by the parties, as well as about the reasons that necessitated such changes, at least two months in advance, unless otherwise provided by this Code.

If the employee does not agree to work under the new conditions, the employer is obliged in writing to offer him another job available to the employer (as vacant position or work corresponding to the qualifications of the employee, 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 the relevant specified requirements vacancies available to him in the area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

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 this Code.

The employer is liable for illegal translation of the Labor Code of the Russian Federation :

Article 234 of the Labor Code of the Russian Federation. The obligation of the employer to compensate the employee material damage caused as a result of unlawful deprivation of his opportunity to work

“The employer is obliged to compensate the employee for the earnings not received by him in all cases of illegal deprivation of his opportunity to work. Such an obligation, in particular, arises if the earnings are not received as a result of:

unlawful removal of an employee from work, his dismissal or transfer to another job».

Article 394 labor disputes dismissal and transfer to another job

“In case of recognition of dismissal or transfer to another job illegal the employee must be reinstated in his previous job by the body considering the individual labor dispute.

The body considering an individual labor dispute decides on the payment of the average wage to the employee for the entire period of forced absenteeism or difference in earnings for the entire time of performing the lower paid work.

At the request of the employee, the body considering an individual labor dispute may limit itself to making a decision on the recovery in favor of the employee of the compensation specified in part two of this article.

The decision on the reinstatement of an illegally dismissed employee at work, on the reinstatement of an employee illegally transferred to another job at the previous job, is subject to immediate execution. If the employer delays the execution of such a decision, the decision-making body issues a ruling on payment to the employee for the entire time of the delay in the execution of the decision of average earnings or the difference in earnings.

Thus, the transfer of an employee to a lower-paid job without his consent is illegal and entails liability for the head of the organization established by labor legislation.

Senior lawyer

Legal Bureau "YURISTOKRAT"

Panteleeva Yulia Viktorovna

Tel. 8-926-522-85-41

e-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it , To the attention of Ms. Panteleeva Yu.V.

Situations related to the transfer of an employee to a lower position always raise many questions from employers. From the article you will learn when such a transfer can be made, what documents will need to be issued and how to reflect payments guaranteed to certain categories of personnel in tax accounting.

Recall that, on the basis of Article 72.1 of the Labor Code of the Russian Federation, a transfer to another job is a permanent or temporary change in the labor function of an employee and (or) the structural unit in which he works (if the structural unit was specified in the employment contract), as well as transfer to work in another area with the employer. In turn, the labor function is work according to the position according to the staff list, profession, specialty, indicating qualifications; the specific type of work assigned to the employee (Article 15 of the Labor Code of the Russian Federation).

With a demotion, the job function changes. This is accompanied by a number of amendments to the essential terms of the employment contract. But first things first.

When can you be demoted?

The demotion may be permanent or temporary. The initiator of the transfer can be both the employer and the employee. However, it is rare to find employees who ask for a lower position. After all, this, as a rule, entails obtaining a lower wages.

Please note: transfer to a lower position is allowed only with the written consent of the employee. An exception is cases related to emergency circumstances listed in Part 2 of Article 72.2 of the Labor Code of the Russian Federation.

If the employee does not agree, the employer must have a reason for demotion. Labor law allows you to do this in several situations:

- by written agreement of the parties (part 1 of article 72.2 of the Labor Code of the Russian Federation). The purpose of such a transfer is often to replace a temporarily absent employee;

- due to downtime (part 3 of article 72.2 of the Labor Code of the Russian Federation);

- due to the employee's refusal to work in the new conditions (Article 74 of the Labor Code of the Russian Federation);

- in connection with the suspension of the special right of the employee (Article 76, clause 9, part 1 and part 2, article 83 of the Labor Code of the Russian Federation). Such rights include a work permit for a foreign citizen, a driver's license, the right to carry weapons by an employee of a private security company, etc.;

- due to a reduction in the number or staff of employees (clause 2, part 1 and part 3, article 81 of the Labor Code of the Russian Federation);

- according to the results of the certification (clause 3, part 1 and part 3, article 81 of the Labor Code of the Russian Federation). In this case, transfer to a lower position is an alternative to dismissal for lack of proper qualifications;

- according to a medical report (Article 73 of the Labor Code of the Russian Federation);

- to eliminate the impact of adverse production factors for a pregnant woman (part 1 of article 254 of the Labor Code of the Russian Federation);

- due to the impossibility of performing previous labor functions by a woman with children under the age of one and a half years (part 4 of article 254 of the Labor Code of the Russian Federation);

- due to the expiration of the employment contract of a woman during her pregnancy, if this agreement was concluded for the duration of the performance of the duties of an absent employee (part 3 of article 261 of the Labor Code of the Russian Federation);

- in connection with the termination of the employment contract due to violation of the rules for its conclusion (Article 84 of the Labor Code of the Russian Federation).

Note: some individual entrepreneurs transfer employees to lower positions for committing a disciplinary offense. However, their actions are illegal. Article 192 of the Labor Code of the Russian Federation contains a closed list of types disciplinary action: remark, reprimand and dismissal. As you can see, demotion of an employee is not included in this list.

For your information.The position of an employee who is on parental leave until he reaches three years of age is not vacant (part 4 of article 256 of the Labor Code of the Russian Federation). For the duration of such a vacation, the employment contract with her continues to operate. Thus, the entrepreneur is not obliged to offer this position to the employee for transfer based on the results of certification. A similar conclusion is contained in the Ruling of the St. Petersburg City Court of August 30, 2010 N 33-11908.

Documentation of the translation

Any change in the essential terms of the employment contract at the will of both parties must be documented. The diagram (p. 20) shows the workflow when employees are demoted.

Document flow when transferring an employee to a lower position

Transfer Application. As we noted above, sometimes a transfer to a lower position is carried out at the initiative of the employee (in particular, for family reasons). In such a case, a statement in any form will be required from him. His example is shown on the right.

Translation proposal. If the transfer initiative comes from an individual entrepreneur, he must obtain the consent of the employee for the transfer. To do this, the employee is sent a corresponding proposal, drawn up in any form.

This document justifies the need for his transfer to a lower position, indicates a list of all available positions that an employee can take in accordance with his qualifications. The document also provides information on official salaries corresponding to vacant positions.

If an employee is temporarily or permanently transferred to a lower position on the basis of a medical report, the transfer proposal must indicate the number and date of such a report.

An employee's consent to a demotion is also documented in writing. To do this, a special column can be provided in the proposal for transfer to another job.

In addition, the employee can apply to the individual entrepreneur and inform him of his decision. Note that the deadline for withdrawing an employee's application for transfer to another job labor law not installed. That is, before signing additional agreement to the employment contract, the employee has the right to apply to the individual entrepreneur with a statement indicating the refusal to transfer to a lower position.

Additional agreement. If the employee does not object to the transfer to a lower position, an additional agreement is concluded with him to the employment contract. It indicates all the conditions for the transfer: the new labor function of the employee, the structural unit in which he will work, the terms of remuneration and the term of the transfer.

When an employee is temporarily transferred to another job, the terms of the employment contract change for a certain period. The duration of a temporary transfer to a lower position is established by agreement of the parties. For example, if an individual entrepreneur temporarily demotes an employee due to the deprivation of a special right, the document must reflect the exact date the employee returned to his previous place of work. If it is unknown, you can make an entry: "Until the day the special rights are restored."

Please note: an employee can be temporarily transferred to another position for up to one year (part 1 of article 72.2 of the Labor Code of the Russian Federation). If the transfer was made for the period of replacement of an absent employee who retains his/her place of work, its term ends on the day the employee enters work. That is, in such a situation, the period of transfer to a lower position may exceed a year.

There are cases when an employee is transferred to a lower position temporarily, but as a result, work in a new place becomes permanent for him. This is possible if, at the end of the transfer period, the employee is not provided with his previous job, but he himself does not require this and continues to work.

Note that an additional agreement to the employment contract, involving a demotion, must be signed by both the employer and the employee. If the employee refuses to sign it and does not go to work in new position, in the event of a trial, the servants of Themis will take his side (Determination of the Moscow City Court of 08/03/2010 N 33-23228).

Order. On the basis of an additional agreement to the employment contract, an order is being prepared for one of unified forms- N T-5 or T-5a (approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 N 1). An individual entrepreneur must be familiarized with the specified order of an employee against signature.

Marks on a personal card. The fact of transfer to a lower position by an individual entrepreneur must be reflected in the employee's personal card (form N T-2, approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 N 1). IN section III“Employment and transfers to another job” should indicate:

— date of transfer;

- structural subdivision;

- position (specialty, profession), category, class (category) of qualification;

— tariff rate(salary) and allowance;

- the basis of the translation.

Please note: with each entry made on the basis of an order to transfer to another job, an individual entrepreneur is obliged to familiarize the employee against signature.

Sample Fill personal card

Entries in work book. Information about transfers to another permanent job must be entered in the workbook. This is discussed in article 66 of the Labor Code of the Russian Federation and clause 4 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 N 225). In this case, the temporary transfer is not reflected in the work book.

An entry on the transfer to a lower position is made on the basis of an order (instruction) of an individual entrepreneur no later than a week.

Note that if the transfer of an employee to a lower position is not confirmed by the relevant documents and records, and the employee’s salary remains the same, then it will be difficult in court to prove the very fact of such a transfer (Determination of the Moscow City Court of October 18, 2010 N 4g / 8-8373 /2010).

Finally, I would like to note the following. Before an employee starts new job, the merchant needs to acquaint him with signature job description. Also, an individual entrepreneur may need to conclude a liability agreement with him and conduct a safety briefing.

Sample Fill work book

N	date	Information on hiring, transfer to another permanent job, qualifications, dismissal (with reasons and a link to the article, paragraph of the law)	Name, date and number of the document on the basis of which the entry was made
Number	Month	Year
1	2	3	4
7	26	02	2013	Transferred to position	Order
				seller,	From 06/26/2011 N 8-k
				Part 3 of Article 81 of the Labor Code
				Code of the Russian
				Federations

Salary

Labor legislation provides guarantees to employees who, due to a medical report, need to be transferred to another job (including to a lower position). So, they retain the average earnings in their previous position for a month from the date of transfer to a lower-paid job.

When transferring due to an industrial injury, occupational disease or other damage to health associated with work - until a permanent loss of professional ability to work is established or until the employee recovers (Article 182 of the Labor Code of the Russian Federation).

In addition, pregnant women, in accordance with a medical report and upon their application, are transferred to another job that excludes the impact of adverse production factors, while maintaining the average earnings from their previous job (part 1 of article 254 of the Labor Code of the Russian Federation).

According to part 1 of article 129 of the Labor Code of the Russian Federation, the accrued average earnings are salary worker. That is, remuneration for work, payment for which is made in accordance with a special norm.

Please note: in case of temporary transfer by agreement of the parties, payment is made by agreement between the employee and the individual entrepreneur.

If, with the consent of the employee, he is transferred to a less qualified job, the parties may agree to maintain the previous salary or to assign an additional payment to the previous salary.

Personal income tax and insurance premiums from the income of employees

The income of employees in the form of average earnings is included by an individual entrepreneur in the personal income tax base (subparagraph 6, paragraph 1, article 208 and paragraph 1, article 210 of the Tax Code of the Russian Federation).

Tax is calculated by an individual entrepreneur at a rate of 13% (clause 1, article 224 of the Tax Code of the Russian Federation).

In accordance with Article 226 of the Tax Code of the Russian Federation, an individual entrepreneur withholds the amount of personal income tax at the time of payment of income to an employee.

In addition, the amount of retained average earnings is accrued insurance premiums for compulsory pension insurance, for compulsory social insurance in case of temporary disability and in connection with motherhood, for compulsory medical insurance, for compulsory social insurance against industrial accidents and occupational diseases. About this - articles 7 and 8 federal law dated 24.07.2009 N 212-FZ and Article 20.1 of the Federal Law of 24.07.98 N 125-FZ.

How to deal with personal income tax for the merchant himself

As you know, individual entrepreneurs determine the composition of expenses in the manner prescribed by Chapter 25 of the Tax Code of the Russian Federation. Based on Article 255 of the Tax Code of the Russian Federation, labor costs include any accruals to employees in cash and (or) in kind, incentive accruals and allowances, compensation accruals related to the mode of work or working conditions, bonuses and one-time incentive accruals, expenses associated with the maintenance of these employees, provided for by the norms of the legislation Russian Federation, labor agreements (contracts) and (or) collective agreements.

These expenses include, in particular, expenses for remuneration for the time of performing lower-paid work in cases provided for by the legislation of the Russian Federation. About this - paragraph 14 of part 2 of article 255 of the Tax Code of the Russian Federation.

Thus, if an employee, for medical reasons, is transferred to a lower position, the salary of which is lower than the previous one, then the entrepreneur has the right, in order to calculate the tax base for personal income tax, to take into account the costs associated with maintaining the average salary for the employee as part of labor costs for the entire period determined for the respective case.

Taxation of “simplifiers” and agricultural producers

In the closed list of expenses for which individual entrepreneurs applying the simplified tax system with an object of income minus expenses or paying the unified agricultural tax are entitled to reduce the income received, the expenses for wages, compensation, temporary disability benefits in accordance with the legislation of the Russian Federation are named (subparagraph 6 of clause 1 article 346.16 and subparagraph 6 paragraph 2 article 346.5 of the Tax Code of the Russian Federation).

In accordance with paragraph 2 of Article 346.16 and paragraph 3 of Article 346.5 tax code Russian Federation, individual entrepreneurs determine the composition of labor costs on the basis of Article 255 of the Tax Code of the Russian Federation.

Based on the provisions of this article, the accrued average earnings are the wages of certain categories of workers demoted.

That is, individual entrepreneurs have the right to take into account its value in expenses that reduce the tax base for a single tax or UAT. On the basis of paragraph 2 of Article 346.17 and subparagraph 2 of paragraph 5 of Article 346.5 of the Tax Code of the Russian Federation, entrepreneurs can do this after the actual payment of the average salary to the employee.

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

It is worth mentioning right away that the material will not be talking about cases of forced transfer provided for in Art. 170 and 178 of the Labor Code, as well as on a short-term transfer due to production necessity(Art. 33, 34 of the Labor Code), and transfer to another enterprise.

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

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

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

The algorithm of actions of the employer in the first case (even if we are talking 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 fact, the transfer is a change in the 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 paragraph 6 of Art. 36 Labor Code. That is, the employee has little choice: either agree to a 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 a rather 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 any).

In order for their consequences to be legitimate, first you need to fix them, that is, 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 staff.

Despite the fact that Art. 32 issues of transfer are taken out separately from changes in essential working conditions, it is generally accepted that a similar procedure should be followed during transfer. That is, two months before the implementation of the changes, employees who are offered the 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 receipt and with witnesses. The employee has the right to disagree with the transfer (slave labor is prohibited), but he will be fired. By the way, the employer should carefully observe all the formalities, since it is quite likely that employees who disagree with the decision of the employer will go to court. This is especially true of the justification for the decision to transfer, because it may be declared insolvent by the court, as a result of which the employee will be reinstated (paragraph 31 of the resolution of the Plenum of the Armed Forces of Ukraine “On the practice of considering labor disputes by courts”).

Further, after 2 months, an appropriate transfer order should be issued, amendments should be made to the employment contract and an appropriate entry should be made in the work book. If the employees did not give consent and are subject to dismissal, an order is issued on their dismissal under paragraph 6 of Art. 36 (with payment of severance pay) or under paragraph 1 of Art. 36, and information is also submitted to the employment service (in accordance with paragraph 4 of article 20 of the Law "On Employment").

An employee of the personnel department, in an interview with the correspondent of the publication, pointed out some difficulties in implementing this method. In particular, the fact that the employer may not always justify his decision to transfer in the event of a claim from a disgruntled employee. In this case, according to the expert, it is much easier to offer the employee to write an application for transfer by own 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 it. If the employee does not agree, any of the options described above can be applied at the discretion of the employer.

By the way, the employer should not forget about the provisions of Art. 114 of the Labor Code, which obliges the employee transferred to a lower-paid job to pay the previous earnings for two weeks, and in the case of a transfer with a reduction in wages 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 in the staffing table (by reducing the old and introducing new positions (staff units), or by obtaining the employee's consent to transfer to another position. The employee's refusal in both cases entails the termination of the employment contract .

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

In general, if the employer decides to reorganize (optimization of staff work, rationalization of jobs, reprofiling, etc.), only the decision depends on the employee: whether to continue labor Relations with him in a new status or stop them altogether.