Call to work due to production needs. What is production necessity

A few days ago, an acquaintance approached me with a request to file a complaint with the court. In fact, his situation is extremely difficult and requires special study. In order not to confuse anything, I turned to the Labor Code to refresh my memory as to how the issue of production necessity stands under the Labor Code of the Russian Federation in 2019. Actually, I already knew that many employers use these two words like a powerful magic spell, but I thought that it was not so intense.

My new client has a boss who has gotten into the habit of forcing employees to go to work on weekends, explaining everything with production necessity (PN). Not only did he simply not give people a full rest, but he also did not pay for this work in the amount established by law. Well, we decided not to give up and file a complaint against this comrade with three authorities at once: the prosecutor’s office, the labor inspectorate and the court. Now we are waiting for an answer, and in order not to lose my “remembered” knowledge, I am writing this note.

The need to urgently complete certain tasks can arise completely suddenly. Under such circumstances, managers try to make the work of employees as optimal as possible in order to try to resolve the issue as quickly as possible. When a question arises about changing the time or place of work of an employee, production necessity is indicated as the reason.

There is no clear definition in labor legislation for this concept, but there are a number of articles that partially affect this category of labor relations. Having studied the existing provisions and clauses, we can identify a number of characteristics and parameters that determine the emergence of production necessity, or more precisely:

• urgent need to prevent the occurrence of a disaster;
• the need to eliminate an emergency situation or eliminate its negative consequences at the place where the work was carried out;
• reducing the destructive impact on the surrounding nature and objects resulting from natural disasters;
• preventing the occurrence of circumstances that could cause accidents;
• prevention of possible financial or property losses;
• assigning an employee to replace a colleague who is absent.

In order to resolve all these circumstances, the management of the enterprise will have to make a number of management decisions, and then document the results. The most common use of the concept of production necessity is to call subordinates from vacation or quickly transfer workers to another position. You can learn more about the issue from the video:

What types of PN exist?

The most famous option using this concept is to transfer an employee to another position. The employer has every right to do this, even if this clause is not in the employment agreement.

It is important to note that the employee’s written consent is not a mandatory document here. The paper is required only if a person is transferred to a position at a qualification level that is lower than his current status.

Transfer due to operational necessity is possible and carried out only under exceptional circumstances, or more precisely:

• Emergencies caused by natural disasters, man-made accidents;
• if the inhabitants of the country are exposed to serious danger, with the subsequent protection of people’s lives and health;
• to increase the profitability of the company and to attract people to additional work.

It is important to note here that production necessity is a forced measure that can be used by the employer only under certain circumstances. Any fraud or shuffling within the framework of this term is unacceptable and may result in the employer being held liable.

Calling from vacation: nuances and features

The company's management has the right to call an employee back from vacation, but on the condition that the subordinate is indispensable at his workplace or one of the cases described earlier has arisen. It should be emphasized that, according to the law, the recall of a subordinate from annual vacation can only be done by agreement of the parties. The employer will not be able to take such a step solely at his own personal request, and all demands made are considered illegal, including threats and pressure.

If such an agreement is reached, the employee retains the right to unused rest time, and he can choose a time convenient for himself independently.

Fines and other types of punishment

If the established procedure is violated, the employer will certainly be held accountable. Moreover, fines are determined by the administrative code, and they are:

• 1-5 thousand rubles – for entrepreneurs;
• 30-50 thousand rubles – for companies.

The amount of the penalty depends on the complexity and severity of the violation committed. Additionally, the enterprise will be inspected and other types of punishment will be imposed.

Instead of results

It is difficult to say exactly what a production necessity is, since we are talking about special circumstances of involving workers in the performance of their direct duties. On the other hand, the employer should be aware that he may be subject to a serious fine for unlawful acts.

PRODUCTION NECESSITY - according to labor law, the need to perform urgent, unforeseen work, on the timely execution of which the normal operation of an enterprise or institution (their individual divisions) depends. In case of PRODUCTION NECESSITY, the administration has the right to transfer workers and employees for a period of up to one month to work not stipulated by an employment contract at the same enterprise, institution, organization, or to another enterprise, institution, organization (but in the same area) with remuneration for the work performed (but not lower than the average earnings for the previous job). Transfer due to PRODUCTION NECESSARY is not allowed to prevent or eliminate a natural disaster, industrial accident or immediately eliminate their consequences; to prevent accidents, downtime, loss or damage to state or public property and in other exceptional cases, as well as to replace an absent worker or employee. Transfer to another job due to PRODUCTION NECESSITY is mandatory for the employee; refusal to transfer in the absence of valid reasons is considered a violation of labor discipline.

Dictionary of financial terms.

See what “PRODUCTION NEED” is in other dictionaries:

BY NECESSITY- extraordinary production circumstances that could not be foreseen and which give the employer additional rights in order to prevent or eliminate their consequences. In accordance with the provisions of Art. 722 of the Labor Code of the Russian Federation in the event of a disaster...

By necessity- this is an exceptional, unforeseen event in the work of this production. This distinguishes production necessity as the basis for a temporary transfer of up to one month from other cases in production work. The Labor Code of Russia does not give complete... ... Encyclopedic dictionary-reference book for enterprise managers

By necessity Encyclopedia of Law

By necessity- (eng. production necessity) in the labor law of the Russian Federation, the need to perform unforeseen and urgent work, on the timely completion of which the normal work of the organization (its structural unit) depends. According to Art.... ... Large legal dictionary

According to labor law, the need to perform urgent, unforeseen work, on the timely completion of which the normal operation of an enterprise or institution (their individual divisions) depends. In case of PRODUCTION NEED... ... Dictionary of business terms

OCCUPATIONAL MICROTRAUM- minor damage to the tissues of the employee’s body (prick, cut, abrasion, scratch, etc.) caused by the external influence of a hazardous production factor, which did not result in temporary loss of the employee’s ability to work and... ... Russian encyclopedia of labor protection

WORK INJURY- damage to the tissues of the employee’s body caused by the mechanical impact of a hazardous production factor and entailing: the need to transfer the employee to another job; temporary or permanent loss of the employee’s ability to work; death… … Russian encyclopedia of labor protection

An industrial enterprise (association), a complex of divisions, their relationships and relationships in the process of manufacturing products. Each stage of the production process is organizationally formalized into an appropriate structural... ... Great Soviet Encyclopedia

The legislation of the Republic of Belarus understands lease as the fixed-term paid possession and use of property necessary for the tenant to independently carry out economic and other activities, based on an agreement. From this... ... Wikipedia

STO 70238424.13.060.30.001-2008: Thermal power plants. Environmental Safety. Protection of the aquatic environment. Norms and requirements- Terminology STO 70238424.13.060.30.001 2008: Thermal power plants. Environmental Safety. Protection of the aquatic environment. Standards and requirements: 5.4.4 Water protection measures Water protection measures must ensure the reduction of negative... ... Dictionary-reference book of terms of normative and technical documentation

Books

• Theory of Constraints in Action. A systematic approach to increasing company efficiency, Eli Schragenheim. The Theory of Constraints (TOC) gives managers the ability to create simplified models of complex production and business systems that allow them to describe and control important events in...
• Theory of Constraints in Action A Systematic Approach to Improving Company Efficiency, Schragenheim E. The Theory of Constraints (TOC) gives a manager the opportunity to create simplified models of complex production and business systems that allow them to describe and control important events in...

Our lives do not stand still, and sometimes unforeseen emergency situations occur during our work activities. If at this point in time you are on a well-deserved vacation, then you should know that the employer has every right to recall you from vacation. This situation is called production necessity. The Labor Code of the Russian Federation of 2017 enshrines this right in Article 722.

What does Article 722 say?

According to the article, the employer has the right to transfer its employees for a period of up to one month to work that is not specified in the employment contracts concluded between them. The consent of workers is also not necessary. Written consent is required if the employee is transferred to a job with lower qualifications than he has. Transfer in case of production necessity occurs in the following cases:

1. Disasters caused by natural or man-made causes.

2. Fires.

3. Earthquakes.

5. Epidemics.

In short, in all those situations that threaten the health and life of the population.

During these cases, all the efforts of workers will be aimed at eliminating the causes of negative influences. Workers will have to eliminate the causes of production downtime or replace other workers whose absence is caused by the above factors.

It should be noted that if the schedule is changed due to production needs, the employee’s consent is not required. Of course, if this change is associated with the occurrence of emergency situations.

What types of production needs can be distinguished?

Very often, employers pronounce the words “production necessity” in all cases in which they want to see a worker at work during periods of his vacation or after the end of working hours. Nevertheless, the legislation of the Russian Federation assigns the following grounds to this concept:

1. Disasters and emergencies of a civil and military nature.

2. Man-made and natural disasters.

3. Unforeseen production downtime (reasons may vary).

4. Replacement of an employee whose absence was due to an emergency.

5. Restoration of damaged property belonging to the organization.

In the case of replacing an absent employee, a transfer is possible not only for a period of up to one month, but also for the entire period of his absence.

In what cases can employers not call subordinates back from vacation?

It is impossible to force an employee to go to work according to the production necessity established (as amended in 2017) by the Labor Code of the Russian Federation if the performance of new duties is impossible due to the health of the subordinate. It is also impossible to involve workers in new work for more than one month within one calendar year. You can be called back from vacation more than once, but only if the month period during the period of these calls has not expired.

The decision of the Russian Supreme Court No. 2 of March 17, 2004 established that an employee’s written refusal to take leave will not constitute a disciplinary offense, and management has no right to punish the employee for this.

Overtime work. What does the Labor Code say about it?

Art. 99 of the Labor Code of the Russian Federation stipulates that the employer can take the initiative to leave a worker at work beyond the duration of his working hours if it is necessary to finish work already started. Moreover, these should not just be working moments, but if, as a result of an unfinished work process, conditions may arise that lead to damage and destruction of production property, as well as conditions that can lead to the loss of human life or health.

As Art. 99 of the Labor Code of the Russian Federation, with the consent of the employee in writing, the manager may leave him overtime if:

1. It is necessary to carry out temporary repair work on the organization's equipment. Moreover, if its malfunctions lead to the deprivation of working conditions for a large number of workers.
2. There is a need to replace a shift worker who does not show up for work, especially if breaks in work are unacceptable.
3. Without consent, workers are involved in work for the following reasons:

• to carry out work aimed at eliminating the causes of accidents, disasters and other consequences of emergency situations;
• during the introduction of mobilization;
• to eliminate the consequences of natural disasters caused by natural and man-made impacts.

Each worker may be involved in overtime work no more than four hours per day and 120 hours per year. The employer is obliged to follow these standards.

Who is prohibited from engaging in overtime work?

The legislation of the Russian Federation has secured such privileges for the following citizens:

1. Pregnant women.
2. Citizens of Russia who have not reached the age of majority (18 years).

With written consent, disabled people and women with dependent children under three years of age can be involved, of course, if they do not have contraindications due to health conditions. In addition, these persons may refuse to perform these duties at any time.

Procedure for recalling an employee from vacation

Recall from regular leave due to production needs is not an easy procedure. Sometimes the word “production necessity” alone is not enough in an order; inspection organizations may have questions about this.

Besides, one order will not do it. The most difficult thing will be to find a worker who is on vacation. Often people prefer to spend their holidays visiting relatives or parents living in other cities and towns, and some like to “soak up” in warm countries outside their own country. At the same time, no one is obliged to notify their superiors about their plans; this is not enshrined in labor relations legislation. But it is possible that these provisions will be enshrined by the employer in the internal acts of the organization. At the same time, these orders and instructions are advisory in nature for employees, and personnel service employees, for their information, can ask for information about the whereabouts of employees going on vacation.

Before calling a vacationer, a memo is written, and after informing the worker about his early return to the workplace, it is necessary to wait for his written consent to this. And after this, the manager has the right to issue an order indicating the reasons for the call. Types of production necessity without the employee’s consent are enshrined in Article 722.

What is a memo?

The note describes all aspects of the unexpected situation that occurred and indicates the reasons for calling the employee to work. The text of the note is formatted in any form. A sample could be like this:

In connection with the changes that have occurred in the well-established work of the workforce (excavator operator Vladimir Ivanovich Ivanov’s illness), I propose calling citizen Nikolai Anatolyevich Petrov from his next paid leave to prevent the production process from stopping for the period until citizen V.I. Ivanov fully recovers.

The note is drawn up by the head of the team or site where the vacationer works. He submits it to the immediate production manager for resolution. He, in turn, can refuse, agree, or make his own changes to the text of the note, for example, call another citizen back from vacation, if there is one.

Notifying a vacationer about a call

You can inform the employee about the difficulties that have arisen by calling him, but it is best to issue a call in an official letter, where you indicate in detail the reason for the production necessity enshrined in the Labor Code of the Russian Federation. There were no changes in this regard in 2017. To avoid further conflicts, the citizen should be explained his rights regarding refusal of the offer.

How to properly recall a worker from vacation?

In order to avoid future problems with labor inspection organizations, the order must reflect the following information:

1. If the employee plans to return to work after the recall, then this date must be indicated; if he plans to take further rest, then indicate the duration of the recall.
2. In case of unfinished vacation, the method of using the remaining days is indicated.
3. Data on recalculation of vacation pay and wages.

Recall from vacation due to work processes

Sometimes an employee is needed to sign important documents or collect certain information. Such points are not enshrined in law. Therefore, these cases are negotiated between the employer and the worker on a contractual basis.

How to manage the remaining vacation days?

There are several ways to spend your remaining days:

1. Postponement of vacation due to production needs. Use free days next year or spend them during this calendar year.
2. Take statutory monetary compensation.

How is vacation pay recalculated when a worker returns to work?

These problems will fall on the accounting staff. After all, the calculation of vacation pay and the calculation of wages are carried out differently. These are different methods of calculation, reporting and accounting for tax purposes.

Sometimes, for a spoiled vacation, an employee is paid a one-time monetary incentive, which, although not much, warms his soul.

A few words in conclusion

You always want relationships in your work team and with your superiors to be at their best. Harmony and mutual understanding make a good contribution to the common cause. Nevertheless, it is necessary to use Russian legislation. The concept (both previously and with amendments in 2017) of the Labor Code of the Russian Federation “production necessity” will always help the manager to take advantage of this right to solve urgent work problems, and the subordinate to know his rights during a well-deserved rest.

Article 99 of the Labor Code of the Russian Federation with comments and amendments for 2016-2017.

1. if it is necessary to perform (finish) work that has begun, which, due to an unforeseen delay due to technical production conditions, could not be performed (finished) during the working hours established for the employee, if failure to perform (non-complete) this work may result in damage or destruction of the employer’s property ( including property of third parties located at the employer, if the employer is responsible for the safety of this property), state or municipal property or create a threat to the life and health of people;
2. when carrying out temporary work on the repair and restoration of mechanisms or structures in cases where their malfunction may cause the cessation of work for a significant number of workers;
3. to continue work if the replacement employee fails to appear, if the work does not allow a break. In these cases, the employer is obliged to immediately take measures to replace the shift worker with another employee.

1. when carrying out work necessary to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, industrial accident or natural disaster;
2. when carrying out socially necessary work to eliminate unforeseen circumstances that disrupt the normal functioning of centralized hot water supply, cold water supply and (or) sanitation systems, gas supply, heat supply, lighting, transport, communications systems;
3. when carrying out work the need for which is due to the introduction of a state of emergency or martial law, as well as urgent work in emergency circumstances, that is, in the event of a disaster or threat of disaster (fires, floods, famine, earthquakes, epidemics or epizootics) and in other cases posing danger threat to the life or normal living conditions of the entire population or part of it.

Commentary on Article 99 of the Labor Code of the Russian Federation:

1. From the concept of overtime work given in Part 1 of Article 99 of the Labor Code of the Russian Federation, it follows that it is carried out at the initiative of the employer outside the working hours established for the employee: daily work (shift), and in the case of cumulative accounting of working hours - in excess of the normal number of working hours for the accounting period.

2. A significant feature of the commented article (in addition to the definition of the concept of overtime work) should also include changes to the procedure for attracting overtime work. Remaining in general on the position of freedom of labor, the commented article allows the employer to engage an employee in overtime work only with his written consent and in strictly specified cases (clauses 1 - 3, part 2).

At the same time, the article in question makes it possible to involve an employee in overtime work without his consent in cases of various emergency circumstances and provides for such circumstances (clauses 1 - 3, part 3) that do not contradict international standards and part 4 of Art. 4 TK.

In all other cases, in addition to those specified in clauses 1 - 3, part 2 and clauses 1 - 3, part 3 of this article, involvement in overtime work is permitted with the written consent of the employee, taking into account the opinion of the elected body of the primary trade union organization.

Work beyond the established working hours of persons with irregular working hours is not considered overtime.

The basis for engaging in overtime work is an order (instruction) of the employer. If the corresponding order was not issued, but it is established that there was a verbal order from one of the managers (for example, a foreman), the work should also be considered overtime.

3. According to Part 5 of Art. 99 of the Labor Code of the Russian Federation, pregnant women, workers under 18 years of age and other categories of workers in accordance with the Labor Code and other federal laws, for example, persons with whom an apprenticeship agreement has been concluded (Part 3 of Article 203 of the Labor Code) are not allowed to work overtime.

Women with children under 3 years of age may be allowed to perform such work with their written consent and provided that overtime work is not prohibited for them for medical reasons. A similar procedure is established for people with disabilities. At the same time, both of them must be familiarized with a signature of their right to refuse overtime work. These guarantees also apply to employees with disabled children under the age of 18; workers caring for sick members of their families in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation; mothers and fathers raising children of the appropriate age without a spouse (Part 3 of Article 259 of the Labor Code), and for guardians (trustees) of minors (Article 264 of the Labor Code).

4. As follows from the content of Part 5 of Article 99 of the Labor Code of the Russian Federation, the prohibition to involve workers of specific categories in overtime work is established by the Labor Code or other federal law. However, this does not mean that with the adoption of the new Labor Code, similar guarantees established for certain categories of workers by by-laws lose their significance. They are subject to application until the adoption of the relevant federal laws (Article 423 of the Labor Code). Therefore, it is also impossible to involve persons with an active form of tuberculosis in overtime work; workers involved in the production of particularly harmful substances (benzidine, dianisidine, alpha and beta naphthalamine), working with radioactive substances and sources of ionizing radiation; at vibration-hazardous and other jobs.

Overtime work is compensated by increased payment or (at the employee’s request) by the provision of additional rest time of no less than the time worked overtime (see Article 152 and commentary thereto).

5. Art. 99 of the Labor Code of the Russian Federation provides for the maximum, i.e. the maximum permissible number of hours of overtime work per year and for 2 consecutive days for each employee. Industry agreements, collective agreements, regulations on working time and rest time for certain categories of workers may also establish a maximum monthly number of hours of overtime work.

The duration of overtime work should not exceed 4 hours for each employee for 2 consecutive days and 120 hours per year.

The employer is required to ensure that each employee's overtime hours are accurately recorded. For work time tracking, see comment. to Art. 91

Notification of changes in the terms of the employment contract, changes in the essential terms of the employment contract, transfer to another job, removal from work

Judicial practice under Art. 74 Labor Code of the Russian Federation

The application by the courts of the provisions of Article 74 of the Labor Code of the Russian Federation is erroneous, since clause 5.8 of the contract regulates the relationship between the employee and the employer only upon termination of the employment contract.

In his complaint to the Constitutional Court of the Russian Federation, the citizen challenges the constitutionality of part one of Article 71 of the Labor Code of the Russian Federation.

Labor Code > PART THREE > Section III > Chapter 12 > 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.

Read also: Order to change wages - sample

The employer is obliged to notify the employee in writing of the terms of the employment contract determined by the parties, as well as the reasons that necessitated such changes, in writing no later than two months, 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.

In the event that the reasons specified in part one of this article may lead to mass dismissal of workers, the employer, in order to preserve jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization and in the manner established by Article 372 of this Code, to adopt local regulations , introduce a part-time working day (shift) and (or) part-time working week for up to six months.

If an employee refuses to continue working part-time (shift) and (or) part-time work week, then the employment contract is terminated in accordance with paragraph 2 of part one of Article 81 of this Code. In this case, the employee is provided with appropriate guarantees and compensation.

Cancellation of a part-time working day (shift) and (or) part-time working week earlier than the period for which they were established is carried out by the employer, taking into account the opinion of the elected body of the primary trade union organization.

Changes to the terms of the employment contract determined by the parties, introduced in accordance with this article, should not worsen the position of the employee in comparison with the established collective agreement or agreements.

Comments on Art. 74 Labor Code of the Russian Federation

1. The current labor legislation, in addition to transfers to another permanent job, provides for cases of temporary transfer. The article under comment regulates the issues of temporary transfer to another job. The employer has the right to temporarily transfer an employee to a job not stipulated by the employment contract in case of production necessity. A transfer due to production necessity will be legal if production necessity actually exists. This standard provides an exclusive list of cases of production necessity, which include: preventing a catastrophe, industrial accident or eliminating the consequences of a catastrophe, accident and natural disaster; preventing accidents, downtime, destruction or damage to property, as well as replacing an absent employee.

Unlike previous legislation, the Labor Code of the Russian Federation allows such a transfer only in the organization with which the employee has an employment relationship.

Cases of production necessity include downtime, which is understood as a temporary suspension of work for reasons of an economic, technological, technical or organizational nature. Since this article does not stipulate what job an employee can be transferred to due to operational necessity, such a transfer is possible without taking into account the qualifications, specialty or position of the employee (for example, when transferring an employee to eliminate a natural disaster). However, the employee cannot be transferred to a job that is contraindicated for him due to health reasons.

The transfer of an employee to replace an absent employee is permitted in cases where the replaced employee is temporarily absent from work for any reason (is on vacation, sick, etc.). In practice, temporary substitution is carried out in two ways: the replacement employee is released from performing his main duties and is temporarily transferred to another job due to production needs; the replacement employee performs his or her duties and the duties of the replaced employee. Payment for the labor of an employee transferred due to production needs is made from the first day of transfer for the work performed, but not lower than the average earnings of the employee for his previous job. In the event that an employee temporarily performs the duties of an absent employee without being released from his main job, he is made appropriate additional payments, the amount of which is established by agreement of the parties (see Article 151 of the Labor Code of the Russian Federation and the commentary thereto).

2. The duration of the transfer due to production needs should not exceed 1 month. The law does not limit how many times a year an employee can be transferred for operational reasons. Therefore, such a translation is possible more than once.

In case of replacing an absent employee, such a transfer is possible for a period of up to 1 month during the calendar year (from January 1 to December 31). With the consent of the employee, temporary substitution may continue for a longer period.

3. Temporary substitution should be distinguished from the transfer (appointment) of an employee to a vacant position. Such a transfer (assignment) is permitted only with the consent of the employee. If an employee who has transferred to a position must be approved by a higher authority, then before approval he is appointed acting. If an employee is not approved for a position, he is given a job in his specialty and qualifications with a payment not lower than what he performed before being transferred to a vacant position.

4. Temporary transfer for operational reasons does not require the employee’s consent. It is mandatory for the employee if the transfer occurs without violating the requirements established by the Labor Code of the Russian Federation.

A temporary transfer is formalized by an order (instruction) of the head of the organization (enterprise), which must indicate the reasons and duration of the temporary transfer.

5. Part 3 of the commented article provides that with written consent, an employee may be transferred to a job requiring lower qualifications. Therefore, transfer due to production needs must be made taking into account the specialty and qualifications. But this rule contradicts the nature of translation due to production necessity: the exclusivity of its cases and temporary nature. The essence of this transfer is precisely that it does not require the employee’s consent and is limited in time. This article gives the employer the unconditional right to transfer employees without their consent to work not stipulated by the employment contract in case of production necessity.

Taking into account these provisions, the employer has the right to transfer the employee to work not stipulated by the employment contract in order to prevent: a catastrophe, industrial accident or eliminate the consequences of a catastrophe, accident or natural disaster; accidents (part 1 of the commented article).

At the same time, based on the specified provisions of the ILO Convention on Forced or Compulsory Labor, the provision provided for in Part 1 of the commented article is the temporary transfer of an employee without his consent to work not stipulated by the employment contract to prevent downtime (temporary suspension of work for reasons of an economic, technological, technical or organizational nature) , destruction or damage to property, as well as to replace an absent employee, may be considered justified provided that this was caused by emergency circumstances (subparagraph “d”, paragraph 4 of the Convention, part 4 of article 4 of the Labor Code of the Russian Federation), or when failure to accept the specified measures could lead to a catastrophe, industrial accident, natural disaster, accident and similar consequences (see paragraph 17 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2).

When resolving cases related to transfer to another job, it is necessary to keep in mind that refusal to perform work during a transfer made in compliance with the law is recognized as a violation of labor discipline, and absence from work is considered absenteeism.

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It should be taken into account that, by virtue of para. 5 tbsp. 219, part 7 art. 220 of the Labor Code of the Russian Federation, an employee cannot be subject to disciplinary action for refusing to perform work in the event of a danger to his life and health due to violation of labor protection requirements, except for cases provided for by federal laws, until such danger is eliminated or from performing heavy work and work with harmful and (or) dangerous working conditions not provided for in the employment contract. Since the Labor Code of the Russian Federation does not contain rules prohibiting an employee from exercising this right even when the performance of such work is caused by a transfer due to production necessity, the employee’s refusal to temporarily transfer to another job in accordance with the commented article for the reasons stated above is justified (see paragraph 19 of the Resolution Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2).

The previously effective Labor Code contained restrictive norms, in particular, during downtime or in the case of temporary replacement of an absent employee, the transfer of qualified workers to unskilled work was not allowed (see Article 28 of the Labor Code).

It seems that the legislator should clarify Part 3 of the commented article: for all cases of transfer due to production needs, it is applicable.

What is production necessity

When working on weekends does not contradict labor laws

In previously applied labor law, production necessity was defined as work outside of normal working hours or with transfer to another workplace, on the implementation of which the normal activity of the enterprise or its individual divisions depended. If such a need arose, the management of the enterprise had the right to transfer workers to those jobs that were not specified in their job responsibilities or employment contract. At the same time, the employee’s refusal to make such a transfer without a valid reason was considered a violation of labor discipline.

Article 113 of the Labor Code of the Russian Federation in force today contains a direct ban on hiring employees to work on weekends and holidays. This article provides a list of exceptional cases when this becomes possible. These, in particular, include the performance of work related to the prevention of disasters, industrial accidents, accidents, as well as damage and destruction of property and material assets. It is allowed to perform overtime work and work not specified by job duties, and in cases of a state of emergency or martial law, emergency circumstances, disasters or others, when there is a threat to life or its normal conditions for the entire population or only part of it.

In cases where it is necessary to urgently carry out work on which the normal operation of the enterprise depends, the involvement of employees is possible only with their written consent. At the same time, it is impossible to involve disabled people and women who have young children under 3 years of age in performing these works. Even if these categories of employees have expressed consent to participate in such work, they must be familiarized with this provision of the law, which provides the right to refuse them.

How to avoid litigation

When attracting employees to work on weekends and holidays, in accordance with Articles 72.1 and 72.2 of the Labor Code of the Russian Federation, it is necessary to be guided by the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation.” It states that it is the employer's responsibility to prove the existence of circumstances allowing employees to work outside of normal working hours. Such work should not be contraindicated for the employee due to health reasons and should be performed only if occupational safety requirements are met. In the event that an employee must perform work that requires lower qualification requirements, he must confirm his consent to perform them in writing. Only if all legal requirements are met, absenteeism or an employee’s refusal to perform work is considered absenteeism or a violation of labor discipline.

Article 99. Overtime work

Overtime work is work performed by an employee at the initiative of the employer outside the working hours established for the employee: daily work (shift), and in the case of cumulative accounting of working hours - in excess of the normal number of working hours for the accounting period.

An employer's involvement of an employee in overtime work is permitted with his written consent in the following cases:

1) if necessary, perform (finish) work that has begun, which, due to an unforeseen delay due to technical production conditions, could not be performed (finished) during the working hours established for the employee, if failure to perform (non-complete) this work may lead to damage or destruction of property the employer (including the property of third parties located at the employer, if the employer is responsible for the safety of this property), state or municipal property, or create a threat to the life and health of people;

2) when carrying out temporary work on the repair and restoration of mechanisms or structures in cases where their malfunction may cause the cessation of work for a significant number of workers;

3) to continue work if the replacement employee fails to appear, if the work does not allow a break. In these cases, the employer is obliged to immediately take measures to replace the shift worker with another employee.

An employer’s involvement of an employee in overtime work without his consent is permitted in the following cases:

1) when carrying out work necessary to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, industrial accident or natural disaster;

2) when carrying out socially necessary work to eliminate unforeseen circumstances that disrupt the normal functioning of centralized hot water supply, cold water supply and (or) sewerage systems, gas supply systems, heat supply, lighting, transport, communications;

3) when performing work the need for which is due to the introduction of a state of emergency or martial law, as well as urgent work in emergency circumstances, that is, in the event of a disaster or threat of disaster (fires, floods, famine, earthquakes, epidemics or epizootics) and in other cases, threatening the life or normal living conditions of the entire population or part of it.

In other cases, involvement in overtime work is permitted with the written consent of the employee and taking into account the opinion of the elected body of the primary trade union organization.

Pregnant women, workers under the age of eighteen, and other categories of workers are not allowed to work overtime in accordance with this Code and other federal laws. Involvement of disabled people and women with children under three years of age in overtime work is allowed only with their written consent and provided that this is not prohibited for them due to health reasons in accordance with a medical report issued in the manner established by federal laws and other regulations legal acts of the Russian Federation. At the same time, disabled people and women with children under three years of age must be informed of their right to refuse overtime work upon signature.

The duration of overtime work should not exceed 4 hours for each employee for two consecutive days and 120 hours per year.

The employer is required to ensure that each employee's overtime hours are accurately recorded.

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 of the terms of the employment contract determined by the parties, as well as the reasons that necessitated such changes, in writing no later than two months, 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.

In the event that the reasons specified in part one of this article may lead to mass dismissal of workers, the employer, in order to preserve jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization and in the manner established by Article 372 of this Code, to adopt local regulations , introduce a part-time working day (shift) and (or) part-time working week for up to six months.

If an employee refuses to continue working part-time (shift) and (or) part-time work week, then the employment contract is terminated in accordance with paragraph 2 of part one of Article 81 of this Code. In this case, the employee is provided with appropriate guarantees and compensation.

Cancellation of a part-time working day (shift) and (or) part-time working week earlier than the period for which they were established is carried out by the employer, taking into account the opinion of the elected body of the primary trade union organization.

Changes to the terms of the employment contract determined by the parties, introduced in accordance with this article, should not worsen the position of the employee in comparison with the established collective agreement or agreements.

Comments on Art. 74 Labor Code of the Russian Federation

1. The current labor legislation, in addition to transfers to another permanent job, provides for cases of temporary transfer. The article under comment regulates the issues of temporary transfer to another job. The employer has the right to temporarily transfer an employee to a job not stipulated by the employment contract in case of production necessity. A transfer due to production necessity will be legal if production necessity actually exists. This standard provides an exclusive list of cases of production necessity, which include: preventing a catastrophe, industrial accident or eliminating the consequences of a catastrophe, accident and natural disaster; preventing accidents, downtime, destruction or damage to property, as well as replacing an absent employee.

Unlike previous legislation, the Labor Code of the Russian Federation allows such a transfer only in the organization with which the employee has an employment relationship.

Cases of production necessity include downtime, which is understood as a temporary suspension of work for reasons of an economic, technological, technical or organizational nature. Since this article does not stipulate what job an employee can be transferred to due to operational necessity, such a transfer is possible without taking into account the qualifications, specialty or position of the employee (for example, when transferring an employee to eliminate a natural disaster). However, the employee cannot be transferred to a job that is contraindicated for him due to health reasons.

The transfer of an employee to replace an absent employee is permitted in cases where the replaced employee is temporarily absent from work for any reason (is on vacation, sick, etc.). In practice, temporary substitution is carried out in two ways: the replacement employee is released from performing his main duties and is temporarily transferred to another job due to production needs; the replacement employee performs his or her duties and the duties of the replaced employee. Payment for the labor of an employee transferred due to production needs is made from the first day of transfer for the work performed, but not lower than the average earnings of the employee for his previous job. In the event that an employee temporarily performs the duties of an absent employee without being released from his main job, he is made appropriate additional payments, the amount of which is established by agreement of the parties (see Article 151 of the Labor Code of the Russian Federation and the commentary thereto).

2. The duration of the transfer due to production needs should not exceed 1 month. The law does not limit how many times a year an employee can be transferred for operational reasons. Therefore, such a translation is possible more than once.

In case of replacing an absent employee, such a transfer is possible for a period of up to 1 month during the calendar year (from January 1 to December 31). With the consent of the employee, temporary substitution may continue for a longer period.

3. Temporary substitution should be distinguished from the transfer (appointment) of an employee to a vacant position. Such a transfer (assignment) is permitted only with the consent of the employee. If an employee who has transferred to a position must be approved by a higher authority, then before approval he is appointed acting. If an employee is not approved for a position, he is given a job in his specialty and qualifications with a payment not lower than what he performed before being transferred to a vacant position.

4. Temporary transfer for operational reasons does not require the employee’s consent. It is mandatory for the employee if the transfer occurs without violating the requirements established by the Labor Code of the Russian Federation.

A temporary transfer is formalized by an order (instruction) of the head of the organization (enterprise), which must indicate the reasons and duration of the temporary transfer.

5. Part 3 of the commented article provides that with written consent, an employee may be transferred to a job requiring lower qualifications. Therefore, transfer due to production needs must be made taking into account the specialty and qualifications. But this rule contradicts the nature of translation due to production necessity: the exclusivity of its cases and temporary nature. The essence of this transfer is precisely that it does not require the employee’s consent and is limited in time. This article gives the employer the unconditional right to transfer employees without their consent to work not stipulated by the employment contract in case of production necessity.

Taking into account these provisions, the employer has the right to transfer the employee to work not stipulated by the employment contract in order to prevent: a catastrophe, industrial accident or eliminate the consequences of a catastrophe, accident or natural disaster; accidents (part 1 of the commented article).

At the same time, based on the specified provisions of the ILO Convention on Forced or Compulsory Labor, the provision provided for in Part 1 of the commented article is the temporary transfer of an employee without his consent to work not stipulated by the employment contract to prevent downtime (temporary suspension of work for reasons of an economic, technological, technical or organizational nature) , destruction or damage to property, as well as to replace an absent employee, may be recognized as justified provided that this was caused by emergency circumstances (subparagraph "d" clause 4 of the Convention, part 4 of article 4 of the Labor Code of the Russian Federation), or when failure to accept the specified measures could lead to a catastrophe, industrial accident, natural disaster, accident and similar consequences (see paragraph 17 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2).

When resolving cases related to transfer to another job, it is necessary to keep in mind that refusal to perform work during a transfer made in compliance with the law is recognized as a violation of labor discipline, and absence from work is considered absenteeism.

It should be taken into account that, by virtue of para. 5 tbsp. 219, part 7 art. 220 of the Labor Code of the Russian Federation, an employee cannot be subject to disciplinary action for refusing to perform work in the event of a danger to his life and health due to violation of labor protection requirements, except for cases provided for by federal laws, until such danger is eliminated or from performing heavy work and work with harmful and (or) dangerous working conditions not provided for in the employment contract. Since the Labor Code of the Russian Federation does not contain rules prohibiting an employee from exercising this right even when the performance of such work is caused by a transfer due to production necessity, the employee’s refusal to temporarily transfer to another job in accordance with the commented article for the reasons stated above is justified (see paragraph 19 of the Resolution Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2).

The previously effective Labor Code contained restrictive norms, in particular, during downtime or in the case of temporary replacement of an absent employee, the transfer of qualified workers to unskilled work was not allowed (see Article 28 of the Labor Code).

It seems that the legislator should clarify Part 3 of the commented article: for all cases of transfer due to production needs, it is applicable.