Assignment of duties without release from the main. How to apply for a temporary replacement for an absent employee

Most often, three ways are used to replace temporarily absent staff:

increase in the scope of work or expansion of the service area.

Let's consider each of these options in more detail.

During a temporary transfer, an employee is transferred to work in another position or profession. Responsibilities on your own employment contract the person is not doing it. For example, during the absence of the head of the garage, one of the mechanics is transferred to his position.

Temporary combination is the performance during the working day, along with their duties defined by the employment contract, additional work in another position or profession. So, by sending a cashier on vacation, you can entrust the fulfillment of his duties in the order of combination to an accountant.

When the volume of work is increased or the service area is expanded, the employee is instructed during the working day, along with his work, to carry out additional activities in the same profession (position). For example, if you have three adjusters, then during the absence of one of them, you can assign the execution of his duties to the remaining two.

How to pay

With a temporary transfer, the employee receives payment for the work performed. Therefore, this method is usually used when replacing managers whose wages are higher than those of ordinary employees.

In the event of a combination of positions, another employee is assigned to the employee. The amount of this additional payment is established by agreement of the parties ( Art. 151 Labor Code of the Russian Federation).

When increasing the scope of work or expanding the service area, the amount of additional payment and the amount of additional work are also determined by agreement of the parties.

What to look out for

The question often arises: who can replace whom? The legislation does not contain an answer to it, therefore, in each case, you should proceed from the interests and specifics of your activities and the qualifications of your staff. For example, in small firm for the duration of the vacation, the director may well replace the staff - in this case, he should also be paid an additional fee for combining. And whether the secretary will be able to perform the duties of the head of the department depends on the qualifications of both the secretary and the head.

In any case, in order to assign the duties of an absent employee to a person, his written consent is required. The employer must issue an appropriate one, in which to indicate:

replacement period;
FULL NAME. and position of the employee;
legally significant action (transfer, assignment of duties in the order of combination, etc.);
payment amount;
employee consent.

Such an order is necessary both for the correct calculation of payment and attributing it to the cost price, and for the possibility of holding the employee liable for improper performance of the assigned duties.

Keep in mind that in all the above cases, the amount of the surcharge is not determined by law and is established by agreement of the parties. In practice, the amount of additional payment for the performance of the duties of an absent employee is usually from 10 to 50 percent of his salary, but sometimes a replacement employee requires that he be paid almost 100%. In order to avoid disagreements, we recommend that this issue be discussed in a local regulatory act - for example, in.

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For various reasons, employees of enterprises and organizations may be absent from their workplace. But manufacturing process should not suffer from it. In such cases, the assignment of the absent employee to another person is envisaged. How to arrange it correctly?

In this situation, there are subtleties that both the personnel officer and the manager are required to know. Yes, and employees will benefit from an increase in the educational level. Let's look at how the duties of a temporarily absent employee are assigned, what each side of the process should focus on.

Solutions to the problem

It should be noted that the assignment of duties to a temporarily absent employee is carried out only in accordance with the law. The TC proposed two options for solving the problem. The administration can offer the employee a combination, that is, he will work for two for some time. Another way is translation. In this case, the employee is released from the main duties.

For example, if the boss's secretary went on vacation or fell ill, a courier can be put in his place. At the same time, the administration should consider whether this person can perform the previous duties. If he manages to fit in work time, then combination is used, otherwise - translation.

The assignment of the duties of a temporarily absent employee must be properly executed, taking into account the surcharge. It must also be borne in mind that in the post-Soviet countries, whose legislation in the field labor relations based on the old code, there have been changes. This means that personnel officers should look for a solution based on the national regulatory framework.

Fundamental question

The procedure for laying on an absent worker is set out in the articles of the relevant national legislation. The Labor Code of the Russian Federation states that such an event is carried out only with the consent of the employee. This means that the personnel officer must enlist the document in which it is expressed. Lawyers recommend signing an additional agreement. It contains the following data:

Parties to the agreement.
List of duties or positions.
Scope of work.
Surcharge.
Validity periods.

The signing of such an agreement will mean the written consent of the employee. On its basis, a temporarily absent employee is compiled. This document contains the information listed above.

Assigning the duties of a temporarily absent employee (RB)

The legislation of Belarus also provides for two options. It is about substitution and combination. The first is the release from the main duties and the assignment of what the absent worker performed. The second option involves a double load. Substitution can be made with the consent of the worker.

There are exceptions. In the case when there is a threat to the life of the population, people can be transferred without consent. It's all reflected in the documentation. Usually, the transfer (combination) occurs by agreement. That is, the employee is offered to do other work for a while. He signs the relevant paper, which indicates the terms and amount of payment. It is forbidden to install wages, the amount of which is less than what a person received earlier.

Documenting

Any changes in the work schedule should be documented with the appropriate papers, including the assignment of the duties of a temporarily absent employee (RB). Order for this topic is no different from other similar documents. It contains all the details, as expected. You also need a link to the relevant article of the TC. An order or other document characterizing the reason for the absence is indicated as the basis. official and head of department. Here's an example:

“Based on Art. 67 of the Labor Code of the Republic of Belarus and due to the absence at the workplace of the secretary of the head Ivashchenko S.N.:

To entrust the duties of the secretary of the head to the personnel specialist T. with her written consent for a period of (specify) while maintaining responsibility for the performance of the main work.
Accountants to make an additional payment Ishchenko R.T. in the amount of 50% of the secretary's salary in the specified period.

More details about this order can be found below.

Subtleties of legislation

Let's return to the Labor Code of the Russian Federation. Fundamentally, the regulatory framework of both countries is identical. But each has its own nuances. So, if the administration issues an order for the assignment, you should think carefully about the reason for the absence of the worker. The usual options are vacation or sick leave. They are self-explanatory.

But if the employee is on a spree, then you must first issue a document on the beginning of the investigation (act), only then shift his duties to others. That is, the absence must be explained. The regulation of the surcharge also differs in the laws of these countries. In the Russian Federation there are no documents that would strictly regulate the amounts. They are charged on a contractual basis. But in Belarus, it is also true only for private enterprises. Additional payments for part-time jobs to state employees are regulated by the government.

Assignment of duties of a temporarily absent employee without consent

Such a measure is practiced in special conditions. Catastrophes, accidents, natural disasters and other events that pose a threat to the population (its part) are equated to them. With such a development of events for up to a month, a person can be assigned another job. Such a norm exists in the legislation of both the Russian Federation and Belarusian.

Naturally, the personnel officer will still have to issue all this with an order. The Labor Code of the Russian Federation allows transfers without consent in other cases. These include, for example, downtime or the elimination of an accident. However, it is prohibited to transfer an employee to a position with a lower qualification without written consent. This should be taken into account at work.

An easier way to replace

In order for the production process not to be hampered due to illness or leave of a specialist, another person can be hired to replace him. Sometimes this method is more optimal than the redistribution of duties. However, leaders are extremely reluctant to go for it. It's all about finance. A newly hired employee will have to pay the entire salary, while a full-time employee and half is enough. This results in significant savings in funds.

There is also such a nuance as an introduction to the course of the case. New person unfamiliar with the intricacies of production. Consequently, his work will be lame and let others down. Temporary assignment of duties can be carried out for a period of up to one year or until the departure of the main employee. In the case of a transfer, the place of service is retained for the person. That is, when the main worker returns, his “deputy” should be given the same place.

A.A. Susarova, lawyer, E.A. Darenina, leading lawyer, S.S. Ermolenko, senior lawyer, A.S. Ermolenko, partner, head of corporate practice at FBK Legal
Article from the magazine "Financial and accounting consultations", No. 4, 2014

In addition, specifying a specific date for terminating the contract may adversely affect the interests of the temporary worker if the period of absence of the replaced worker changes due to circumstances beyond his control (for example, temporary disability during the vacation period) or if this worker decides to return to work early. In such cases, the contract may be terminated earlier (or later) than the period specified in the fixed-term contract and order.

Thus, due to the inability to accurately determine the term of the contract at the time of its conclusion, a fixed-term employment contract for hiring an absent employee for the duration of the duties of an absent employee, as well as in the corresponding order, should not indicate a specific date for termination of the employment contract.

On the possibility of extending a fixed-term employment contract for a period exceeding five years

If none of the parties requires termination of a fixed-term employment contract due to its expiration and the employee continues to work after the expiration of the employment contract, there is a risk of recognizing the condition of the urgent nature of the employment contract as invalid (part 4 of article 58 of the Labor Code of the Russian Federation) . As a consequence, in this case, the employment contract can be considered as concluded for an indefinite period.

From the cumulative interpretation of these norms it follows that in the event of the conclusion fixed-term contract for the performance of the duties of an absent employee for a period exceeding five years (for example, as a result of an extension of the contract), a temporary worker may demand that such an agreement be recognized as open-ended.

Thus, the five-year period indicated in Art. 58 of the Labor Code of the Russian Federation, can be considered as a suppressive one. In this case, after five years from the date of conclusion of a fixed-term employment contract (for example, as a result of successive changes in the terms of the term of the employment contract, the total term of which ultimately exceeded five years), such an employment contract may be recognized as open-ended.

However, it should be noted that Part 1 of Art. 58 of the Labor Code of the Russian Federation expressly provides for exceptions to the rule on a five-year preemptive period. Such exceptions include cases when the Labor Code of the Russian Federation or other federal laws establish a different maximum period for which a fixed-term employment contract can be concluded.

Neither regulations, nor judicial practice do not contain an answer to the question of how a different period should be established in the Labor Code of the Russian Federation or other federal law - in the form of a specific period of time or in an indefinite form, implying the possibility of continuing a fixed-term employment relationship after five years.

However, in our opinion, the systemic interpretation of Part 1 of Art. 58 and par. 2 hours 1 tbsp. 59 of the Labor Code of the Russian Federation allows us to conclude that a fixed-term employment contract can be concluded for a period exceeding five years, if the replaced worker legally retains a job for the entire period.

In addition, when deciding on the possibility of recognizing a fixed-term employment contract as a contract concluded for an indefinite period, it is necessary to take into account whether there was a continuation of labor relations with a replacement employee after the absent employee went to work. The courts note that the employer loses the right to terminate the fixed-term employment contract with the employee upon the occurrence of an event related to the expiration of its term, only if he did not express his desire to terminate the employment relationship with the employee before the expiration of the employment contract, and the employee continues to work after the expiration of the term contracts.

Therefore, to terminate a fixed-term employment contract with an employee:

the employer must express a desire to terminate the employment relationship in connection with the return to work of the absent employee;
the employee must not continue labor activity after the expiration of the employment contract.

Subject to these conditions, as well as subject to the provisions of h. 1 Article. 58 and par. 2 hours 1 tbsp. 59 of the Labor Code of the Russian Federation, termination of a fixed-term employment contract can also be carried out after five years from the date of its conclusion.

To minimize the risks of a labor dispute with a substitute employee, all documents (including an application for employment, a contract, an order, a work book, additional agreements on the extension of the term and corresponding orders to them) should reflect the urgent nature of the work of the employee being hired, as well as the basis ( reason) for the conclusion of a fixed-term contract.

On the significance of the clarifications of Rostrud when considering a labor dispute in court

citizens Russian Federation have the right to send individual and collective appeals to state bodies and bodies local government. The procedure for considering citizens' appeals and legal entities established by the Federal Law of March 2, 2006 No. 59-FZ “On the Procedure for Considering Appeals from Citizens of the Russian Federation”.

The state body, whose competence includes consideration of the issues indicated in the appeal, gives the applicant a written answer on the merits of the issues raised.

The body authorized to provide legal and individuals clarification on issues related to labor law, is Rostrud (clause 6.2 of the Regulations on Federal Service on labor and employment, approved by the Decree Government of the Russian Federation of June 30, 2004 No. 324).

An analysis of judicial practice shows that in some cases the courts use the clarifications of Rostrud to substantiate certain positions in the motivational part of their decisions. However, in such cases, the position of Rostrud is applied as an addition to the norms of the Labor Code of the Russian Federation and judicial practice.

However, on the issue of regulatory powers government agencies executive power in Art. 5 of the Labor Code of the Russian Federation states that the regulation of labor relations and other relations directly related to them can be carried out by regulatory legal acts federal executive authorities.

P> By virtue of clause 7 of the Regulations on the Federal Service for Labor and Employment, this executive authority is not entitled to carry out legal regulation in the established field of activity (state supervision and control over the implementation of labor legislation, informing and consulting on compliance with labor legislation, regulatory legal acts containing norms labor law, and etc.).

Based on this, the clarifications of Rostrud have an exclusively recommendatory force and express only the opinion authorized body regarding the interpretation and application of labor law. This opinion can be critically assessed both by the participants in labor relations and by the court when resolving a specific dispute on the merits, which is confirmed by judicial practice. In this regard, the courts are not obliged to consider the clarifications of Rostrud as documents subject to mandatory application.

Thus, in the event of a labor dispute, the clarification of Rostrud, issued to the employer at the request related to the subject of the dispute, can be used by the court in resolving this dispute, however, taking into account the powers of Rostrud, the court is not obliged to be guided by such clarifications and may, at its discretion, accept a decision that does not correspond to the position of Rostrud.

Or any other period of time during which the absent employee retains a place of work.

This conclusion is confirmed by the established court practice (see, for example, the Appeal ruling of the Orel Regional Court of April 25, 2012 in case No. 33-682, the Cassation ruling of the Supreme Court of the Republic of Kalmykia of April 8, 2010 in case No. 33-285 / 2010 , Cassation ruling of the court of the Jewish Autonomous Region dated February 13, 2009 No. 33-52 / 2009).

This conclusion is also confirmed by judicial practice and clarifications of Rostrud (see, for example, Cassation ruling of the St. Petersburg City Court of September 20, 2010 No. 33-12886/10, letter of Rostrud of December 28, 2006 No. 2264-6-1) .

This conclusion indirectly follows from the Ruling of the Supreme Court of the Komi Republic dated March 22, 2012 in case No. 33-1067/2012.

Appeal ruling of the Volgograd Regional Court dated March 14, 2012 in case No. 33-2012/2012.

Article 33 of the Constitution of the Russian Federation.

Article 10 federal law dated May 2, 2006 No. 59-FZ “On the procedure for considering applications from citizens of the Russian Federation”.

Decision of the Leningrad Regional Court of March 12, 2013 No. 7-89/2013, Appeal ruling of the Belgorod Regional Court of November 27, 2012 in case No. 33-3830, Appeal ruling of the Moscow City Court of November 2, 2012 in case No. 11 -24842, Appellate ruling of the Supreme Court of the Republic of Buryatia of September 26, 2012 in case No. 33-2338, Ruling of the Eighteenth AAC of October 29, 2010 No. 18AP-6693/2010, Ruling of the Twelfth AAC of June 17, 2010 in case No. A57-912/2010.

See, for example, the Ruling of the Moscow City Court of 14 December 2010 in Case No. 33-38876.

The departure of an employee on vacation should not affect the work of the organization. Therefore, when it is not possible to distribute the duties of a vacationer among the remaining employees without increasing the workload on them, a combination or replacement is issued.

Combination for vacation

The combination consists in the fact that the employee chosen by the employer performs both his work and the work of a colleague who has gone on vacation (Article 60.2 of the Labor Code of the Russian Federation).

Combination for the duration of the vacation is possible only with the consent of the employee who is planned to be entrusted with the performance of the labor duties of the vacationer.

Vacation pay

An employee who combines his work and the work of a vacationer, in addition to his own salary, is entitled to an additional payment for combining. The amount of this additional payment is determined based on the volume and specifics of the additional work performed. The surcharge is established by agreement between the substitute worker and the employer (Article 155 of the Labor Code of the Russian Federation). It can be set both in a fixed amount, and, for example, as a percentage of the salary of an employee who has gone on vacation.

Combination agreement

An additional agreement to the employment contract when combining positions during the employee's vacation can be drawn up as follows:

Supplementary agreementto the employment contract dated December 22, 2011 No. 21-TD

Moscow 10.05.2016

Society with limited liability"Silk Road", hereinafter referred to as the "Employer", represented by the General Director Shelkopryadov G.S., acting on the basis of the Charter, on the one hand, and Smetanina Lyudmila Konstantinovna, hereinafter referred to as the "Employee", on the other hand, jointly referred to as " Parties”, have concluded this agreement as follows.

1. In connection with the fact that the senior cashier Zolotareva E.M. is on annual basic paid leave. In the period from 05/16/2016 to 05/29/2016 inclusive, along with the work determined by the employment contract, the employee is entrusted with the performance of labor duties by Zolotareva E.M. in accordance with her job description with which the Employee is familiar before signing this agreement.

2. An additional payment is established for the employee for combining positions during the vacation of Zolotareva E.M. in the amount of 10,000 rubles.

3. The Employee has the right to prematurely refuse additional work, and the Employer - to early cancel the order to perform it, notifying the other Party in writing no later than 3 (three) working days.

4. This agreement is an integral part of the employment contract.

Signatures of the parties

Employer_________G.S. silkworms

Employee __________L.K. Smetanina

Vacation order

The combination is drawn up by the appropriate order, in which it is desirable to reflect:

the reason why the employee will combine his own and someone else's work. In this case, the reason is the vacation of another employee;
the time for which the employee will have to combine his work and the work of the vacationer;
duties that the employee will perform in connection with the combination;
combination fee.

Order on combination for vacation: sample

This command might look like this:

LLC "Silk Way" Order on the combination of posts

10.05.2016 № 33

In accordance with Art. 60.2 Labor Code RF order:

1. In connection with the leave of the senior cashier Zolotareva E.M. from 05/16/2016 to 05/29/2016, assign the duties of a senior cashier in accordance with the job description in the order of combining positions on the accountant Smetanina L.K.

2. Install Smetanina L.K. for a given period of time, an additional payment in the amount of 10,000 (ten thousand) rubles.

CEO G.S. silkworms

Familiarized with the order:

Accountant L.K. Smetanina

Against the combination

posts do not mind L.K. Smetanina

Surcharge for combination and personal income tax

The amount of the additional payment due to a part-time worker is subject to personal income tax, as well as insurance premiums in the generally established manner.

Combination of positions and personnel documents

Information that the employee combined his work and the work of an employee on vacation is not reflected in his work book, neither in a personal card, nor in a time sheet.

Vacation replacement

Substitution for the period of vacation is the transfer of an employee to the place of a vacationer (Article 72.2 of the Labor Code of the Russian Federation). Those. employee for the period of replacement of the vacationer labor obligations does not perform, but only performs the work of an employee who has gone on vacation.

Temporary transfer of an employee is formalized by a written agreement between the employee and the employer. Such an agreement can be made by analogy with a combination agreement, replacing the information in it with information suitable for a particular situation (for example, indicating the salary for the replacement period, as well as information that during the replacement period the employee performs only the work of a vacationer).

Replacing an employee on vacation: payment

An employee who replaces a colleague during his vacation receives a salary in accordance with the work performed.

Vacation substitution application: sample

When replacing, the application is not issued. However, you need to draw up a replacement order. To compile it, you can use one of unified forms(T-5 or T-5a, approved by Decree of the State Statistics Committee of the Russian Federation of 01/05/2004 No. 1). For example, a T-5 substitution order would look like this:

				The code
OKUD form				0301004
LLC "Silk Way" according to OKPO				45617843
name of company
		Document Number	Date of preparation
Order (order) on the transfer of an employee to another job		33	10.05.2016

		the date
Transfer to another job		with	16.05.2016
Transfer to another job		on	29.05.2016

		Personnel Number
Smetanina Lyudmila Konstantinovna Full Name		145
temporarily type of transfer (permanent, temporary)
Previous place of work	Accounting structural subdivision
Previous place of work	Accountant
annual basic paid leave of the senior cashier Zolotareva E.M. reason for transfer
New place of work	Accounting structural subdivision
	Senior cashier position (specialty, profession), category, class (category) of qualification
	Tariff rate (salary) 45,000 rubles. 00 kop. figures
	Surcharge --- rub. -- cop. figures
Base: amendment to the employment contract dated May 10, 2016 No. 21-TD; or other document _________________________________________________________________________ document (statement, medical report, etc.)
Head of the organization General Director ______________ G.S. silkworms position personal signature full name
With an order (instruction) the employee is familiarized ___________________ May 10, 2016 personal signature

Payment upon replacement and personal income tax

As well as when combining, the money received by the employee for replacing the vacationer is subject to personal income tax and insurance premiums in the usual manner.

The order to assign duties to an employee has recently become commonplace in almost any enterprise. It is not difficult to create such a document. It is only necessary to strictly observe a certain sequence of actions and not violate the Labor Code.

Reasons for issuing the order

There are situations when one of the employees for one reason or another is absent from the workplace. But the enterprise should not change the usual rhythm of work for this time or stop altogether. The way out of this situation will be an order to assign the duties of this employee to someone else. But before that, the employer must decide by whom and in what way these duties will be performed. There are three completely different options:

You can temporarily transfer one of your colleagues to the position of a currently absent employee.
Assign his duties to another employee, and he must also perform his work.
Invite someone from outside. He will temporarily replace the main worker.

The choice should be made by the management of the enterprise, and only after that an order should be drawn up on the assignment of duties. Only two factors can influence the decision: labor resources(availability of employees who can perform additional functions) and material opportunities (to make partial or full payment).

Step-by-step instruction

There are several reasons why an employer decides that another employee will carry out a certain range of duties in the future:

The main employee is absent at the moment due to good reason(vacation, business trip, etc.).
It is necessary to perform duties corresponding to a position (profession) that is not in staffing.
The employee combines work in different professions.

In each of these cases, the following steps must be performed in turn:

The head of the unit must draw up a memo addressed to the director of the enterprise, which sets out in detail the reasons that prompted him to make the appropriate decision.
Coordinate the issue with the management.
Get the consent of the employee in writing.
The personnel service issues an appropriate order on the assignment of duties to a specific employee.

To resolve such an issue without creating conflicts, it is necessary to follow a strict sequence of these actions.

Necessary measure

Quite often, a situation of a different kind develops in enterprises. For example, in the staff list of the company there is no one or another unit (or the staff is very small), and the duties that correspond to this specialty must be performed. How to be in that case? How to legitimize the situation? This issue is easily resolved. It is only necessary to have a sample order on the assignment of duties on hand. It is composed, in principle, arbitrarily. Already in the title of the order, the position whose duties will need to be performed is indicated. Next comes the stating part, which explains the main reason. After that, in the administrative part, the essence of the issue is stated. For example:

THE RUSSIAN FEDERATION

LIMITED LIABILITY COMPANY "VETER"

Samara city

On the assignment of the duties of a mechanic

Due to the absence in the staff list of the enterprise of the position of chief mechanic

I order:

Assign the duties of the chief mechanic to the chief engineer Timofeev A.V.
I reserve control over the execution of this order.

Director of Veter LLC Karpov I.I.

Acquainted with the order:

Chief Engineer __________ Timofeev A.V.

Date Signature

If a certain surcharge is established for the performance of duties, then this fact is reflected in the order as a separate item.

Responsibilities of a cashier

If there is no cashier unit in the state, then the order may look like this. But there are often situations where vacant position available, but management is in no hurry to take on it individual worker. In this case, a slightly different order is drawn up on the assignment of the duties of a cashier to another specialist (accountant). In fact, this will be a combination of professions (Article 60.2 of the Labor Code of the Russian Federation), so the sequence of actions should be as follows:

The employer in writing offers a specific specialist to additionally perform the work of a cashier and receives written consent from him.
An appropriate order is issued indicating the amount of payment.
An additional agreement is drawn up to the previously concluded labor contract(contract).
The employee gets acquainted with the job description of the cashier and concludes an agreement on full liability.

It is worth remembering that in no case can the duties of a cashier be performed by Chief Accountant, since the "Regulations on Chief Accountants" does not allow these specialists to combine duties related to personal responsibility for cash and material assets available at the enterprise.

Someone else's work on time

If one of the employees is absent from the workplace for some time, then his duties for this period are assigned to another member of the team. This usually occurs due to illness, vacation or business trip. There are two possible options solutions to this issue:

Temporary transfer to a replacement position. The employee is paid according to new profession with the preservation of all surcharges (with the exception of personal allowances). As a result, the amount should in no case be lower than it average salary at the previous place of work.
Temporary performance of duties along with the performance of their main work. In this case, the amount of payment is determined as a percentage of the salary for the new specialty.

In both the first and second cases, an order for the temporary assignment of duties (or transfer) is necessarily drawn up, where the following information is indicated in detail: additional responsibilities, the pay that is due for this work, and the reason for the absence of the main worker.