In previous articles on our website, we once talked about the legal status of the head and chief accountant of the organization. But the managers and chief accountants of the company are also people: they can go on vacation, get sick, quit, in the end. At the same time, the legal entity must continue to function as usual - it is necessary to sign documents with counterparties, hire and dismiss employees, etc. After all, if a contract with a client is concluded by a person who does not have legal authority, or such a person fires an employee, expect trouble.
Yes, often documents are signed simply “and. O. General Director” or by analogy “acting chief accountant” But this is fundamentally wrong, including in the case of the chief accountant - what will the tax inspector say to such a signature when submitting reports?
General rules for the performance of duties of an absent employee
In accordance with Article 60.2 of the Labor Code of the Russian Federation, the performance of the duties of a temporarily absent employee may be assigned to another employee without release from work determined by his employment contract.
To do this, the employee is entrusted with the performance during the established duration of the working day (shift), along with the work determined by the employment contract, additional work in another or the same profession (position) for additional payment. It is important to emphasize that for the performance of additional work, the employee should be charged an additional payment, taking into account the content and volume of work. Additional duties can be assigned to an employee only with his written consent, the employee may refuse them. Such additional work in another profession (position) can be carried out by combining professions (positions), and if additional work is provided for in the same profession (position), then you can simply expand the service areas or increase the amount of work.
To perform the duties of an absent employee, an additional agreement is concluded to the employment contract, in which it is necessary to clearly indicate the job duties that the employee is assigned to perform. The agreement must also specify the period during which the employee will perform additional work. If the employee does not agree with such conditions, he has the full right to refuse.
However, the deadline can be changed at any time - by both the employee and the employer - it is enough to notify the other party in writing no later than three working days.
Note that such an appointment of an employee as acting in a vacant position is not allowed, with the exception of hiring the head of the organization. This exception is quite logical - as we have already noted, someone must represent the organization. The acting head is approved by a higher management body - for example, a meeting of founders of an LLC.
If the higher management body, in accordance with the charter of the organization, appoints other employees (deputy managers, chief accountants, etc.), then they can perform duties in a vacant position for no more than a month, during which the head must submit documents to the higher management body for his appointment to the post, and this body to consider the issue and report to the head of the results. This rule was also established by the Explanations of the State Committee for Labor of the USSR No. 30 and the Secretariat of the All-Union Central Council of Trade Unions No. 39 of December 29, 1965 No. 30/39 “On the procedure for paying for temporary replacements” (hereinafter referred to as the Explanation).
Example 1. I worked as the chief specialist of the department. After the head of the department resigned, I was offered to become the head. I refused, but the director issued the order anyway. I don't want to be the boss. How long can this go on, and can I refuse to perform the duties of the head of the department?
Firstly, one order of the head of the organization is not enough - you should have concluded an additional agreement to the employment contract. If you had signed an additional agreement, then there would have been an agreement on the term, and your opinion should have been taken into account.
Secondly, you can refuse to perform your duties at any time by notifying the management in writing three days in advance.
Example 2. I have the following situation: the CEO quits. The founders tell me to write an application for his position with the preservation of my duties (I am the head of the department). But at the same time they are going to pay only 50%. Can I be forced to write such a statement and why pay only 50% if I have two positions.
No one can force you to fulfill someone else's duties - you can always refuse. Moreover, you don’t need to write any application - the founders themselves must decide on your appointment (both permanent and temporary) and offer it to you if you agree to sign an additional agreement on the performance of the director’s duties. As for the size of the salary, it is in this agreement that it is established. And again, with your consent.
Fulfillment of duties in a different order
If there is no employee who can perform both his own and other people's duties, then the issue is resolved by transferring an employee - including a temporary one - for up to one year or indefinitely (Article 72.2 of the Labor Code of the Russian Federation). With this option, this employee is released from performing his labor duties in his old position.
If, for example, in one structural unit there are more employees or the load is less than in another, then an employee can simply be moved to a similar workplace to replace another in accordance with Article 72.1 of the Labor Code of the Russian Federation.
Another option is to conclude a fixed-term employment contract for the performance of the duties of an absent employee, who retains his job. You can also conclude a separate open-ended contract (internal part-time job), taking into account the restrictions provided for by the Labor Code of the Russian Federation.
Registration of the performance of duties
We started the conversation by saying that signatures like “i. O. CEO" is not possible. However, in accordance with paragraph 3.22 of GOST R 6.30-2003 "Unified Documentation Systems", the "Signature" attribute includes: the name of the position of the person who signed the document, the personal signature and its transcript (initials, surname).
At the same time, such a position as “acting someone” is not provided for by the legislation, therefore, the employee who is entrusted with the performance of the duties of the head, signing the document, indicates the position that he actually occupies according to the staff list.
The question immediately arises, how can a dismissal order or some other document be signed, say, by the head of the legal department? But the execution of the performance of duties should be complete - with the issuance of an order, an additional agreement, the issuance of a power of attorney on behalf of the organization. These documents will confirm his authority to sign documents.
Here it is worth emphasizing that these powers should be set out in the documents very clearly - if they are not indicated, then, therefore, they have not been transferred. Take the same dismissal of employees: the acting person does not have such a right in the power of attorney, which means that he does not have this right.
It is not necessary to conclude an additional agreement if the performance of the duties of a manager is provided for in the employee's job description, since it is a local regulatory legal act that defines the functions (duties), rights and responsibilities of an employee holding a certain position. For example, the job description of the deputy head states that in the absence of the head himself, he performs his duties. It is also necessary to specify exactly the situations when it is necessary to fulfill duties: vacation, temporary disability, etc.
Nevertheless, the powers to be transferred should again be clearly spelled out, the order for the enterprise should record the fact of the absence of the head, the amount of additional payment for the performance of duties and the deadline for this performance. We should not forget about the power of attorney either - in some situations it can come in handy, especially if the procedure for replacing the head is not spelled out in the charter of the legal entity. But if there is nothing about the performance of duties in the job description or it does not indicate all the powers that should be transferred, then an additional agreement is necessary. An entry in the work book is made only with the permanent transfer of the employee or the conclusion of a separate employment contract (fixed-term or indefinite), in other cases, the fact of fulfillment of duties in the work book is not reflected.
Example 3. Tell me, please, if the head of the organization entrusts me with the performance of his duties during his business trip, can I require that I make an appropriate entry in the work book? And can I refuse to fulfill them before making this entry?
No, during the temporary performance of duties, an entry in the work book is not made if a separate employment contract is not concluded with you (internal part-time job). And you can refuse to perform duties in any case.
Example 4. How to appoint an acting director if the director suddenly falls ill and cannot issue an order to appoint an acting director?
In this case, the issue of appointing an acting director of the company should be decided by the founders of the company. If the participant is alone, he himself will appoint an acting director for the period of temporary disability of the latter. If there are more participants in the company, then the solution of this issue may be delayed, because it is necessary to hold an extraordinary meeting of participants.
"HR officer. Labor law for a personnel officer", 2009, N 6
Position with a prefix ... or who will perform the duties of a temporarily absent boss?
The situation when the duties of a temporarily absent employee are shifted to another employee is known to many managers and specialists. In the practice of labor relations, it has developed so that everywhere, instead of legal registration of additional work from the scope of duties of another position, they produce "assignment of duties" for the specified position or "replacement of an absent employee", which means taking his position. Many experts believe that the meaning of these formulations is the same. The opinion of the author of this article is different.
In the context of the current economic instability caused by the global economic crisis, employers are trying to find legal mechanisms that would ensure effective management of both personnel and the production process. Such mechanisms are available in the current labor legislation, but the abuses allowed in their use, instead of effective management and economic stability, backfire. The crisis and economic instability force us to prioritize, to make a choice in favor of the current labor law.
We are talking about a well-known situation when the head of an organization or the head of a department (workshop) goes on vacation, goes on a business trip, and his duties during this period are performed by another employee. The procedure for registration of the specified movement of personnel in the organization is provided for by the Labor Code of the Russian Federation. For such a case, a legal mechanism has been established, which is an agreement on a temporary transfer to replace an absent employee, who retains his place of work. The procedure for implementing this agreement is provided for in Art. 72.2 of the Labor Code of the Russian Federation.
However, the same law allows the employee and the employer to draw up another agreement. Its essence is the performance of additional work, the content of which is the labor duties of a temporarily absent employee. Additional work is performed in this case by the employee along with (simultaneously) with his job duties. The procedure for implementing this agreement is already different. It is provided for in Art. Art. 60.2, 151 of the Labor Code of the Russian Federation.
Fulfillment of the duties of a temporarily absent employee:
ways and mechanisms
As you can see, in both cases, we are talking about the fulfillment of the duties of a temporarily absent employee, who retains his place of work (position). Only the legal mechanisms, which means that the legal features of solving the same problem are completely different.
If we talk about the transfer to another job, then it is a change in the labor function of the employee in accordance with Art. 72.1 of the Labor Code of the Russian Federation. This is an assignment of work that does not correspond to the specialty, qualification, profession (position) of the employee, or such work, during the performance of which the amount of wages, benefits, advantages and other working conditions, agreed upon at the conclusion of the employment contract, change. For example, it is enough to change the name of the position or specialty of the employee, you will already have to talk about transferring to another job, since the content of labor duties for a position with a new name will be different.
In Art. 72.2 of the Labor Code of the Russian Federation provides for a special case of transfer to replace a temporarily absent full-time employee, who retains his place of work (position). The specified transfer is made with the consent of the employee and will have legal effect until the replacement employee returns to work. It is known that during the transfer, the employee ceases to fulfill his duties in the previous job. The transfer obliges him to perform the full scope of labor functions already in another position. Remuneration is made according to the work to which the employee is transferred. In particular, remuneration in the event of a transfer to replace a temporarily absent employee is made by agreement of the parties, but not lower than for the work performed at the position of the replaced staff unit.
A completely different legal mechanism that allows you to perform the labor duties of a temporarily absent employee is provided for in Art. 60.2 of the Labor Code of the Russian Federation. This legal mechanism consists of several ways to perform additional work for an absent employee and allows you to solve production problems with a smaller number of staff in order to increase labor productivity and material incentives for employees. This legal norm is implemented in accordance with Art. Art. 150 - 151 of the Labor Code of the Russian Federation.
One of these methods is the combination of professions (positions), which involves the performance of additional work, consisting of labor duties for a position (profession), which differs in the content of the labor function from that of the employee.
The next way is to expand service areas, increase the volume of work, which involves the performance of additional work, consisting of labor duties for a position (profession) the same as for an employee.
There is another way - the performance of the duties of a temporarily absent employee. This method involves the performance of additional work, consisting of labor duties both in the same profession (position) as that of the employee, and in another, which differs in the content of the labor function from that of the employee. For this reason, it is considered the main one.
It should be noted that the legal norm contained in Art. 60.2 of the Labor Code of the Russian Federation, has a feature. It contains ways to perform additional work for an absent employee, as well as additional work from the terms of reference of the position that is currently vacant. The specialist is assigned to perform additional work due to his high qualification along with (at the same time) labor duties in his position.
Payment for additional work is made as a percentage (%) of a larger salary or in a fixed amount of money, in the manner prescribed by Art. Art. 150 - 151 of the Labor Code of the Russian Federation.
The presence in the law of norms and rules that differ from each other to achieve the same goal - to fulfill the duties of a temporarily absent full-time employee, is explained by the variety of production tasks and working conditions that arise within the framework of labor relations. At the same time, the law does not allow the substitution or combination of different legal mechanisms. It would seem that everything is clear. It is enough to choose a legal mechanism that meets the interests of the employee and the employer, and then apply the appropriate procedure for formalizing relations and remuneration provided for by law. But it turns out not everything is so simple. Let's take a closer look at what happens in practice.
Additional work or "assignment of duties"?
The fact is that in the practice of labor relations the so-called administrative option is widely used. It is not provided for by any law, but is used in every enterprise, in every organization and institution, being an extreme form of abuse. Surprisingly, unlike many other cases, not a single head of the organization is interested in lawyers on what legal basis this is happening. This option is the "imposition of duties" on the position of a temporarily absent employee.
Here is a specific case from the practice of labor relations: the general director went on vacation, "temporarily assigning duties" to the chief engineer of management. During the absence of the general director, it becomes necessary to issue an internal production order. The question arises: in the Production Order, the requisite "position name" will be called "acting general director" or should the employee put a signature against his position - chief engineer? The question is far from idle. The answer to it allows us to solve a serious problem related to the observance of the right of hundreds of thousands of workers to a fair wage.
When resolving this issue, one should be guided by the fact that the chief engineer agreed, along with (simultaneously) with his official duties, to perform additional work, consisting of labor duties as a general director, in accordance with Art. 60.2 of the Labor Code of the Russian Federation. In most cases, this is exactly what the employee and the employer agree on, since this legal mechanism is provided by law for solving production problems with a smaller number of employees. Both the employee is interested in this - financially, and the employer, solving the problem of increasing labor productivity. However, the agreement of the parties, as a rule, misses the most important feature on which the legitimacy of the agreement reached depends. The peculiarity is that the legal mechanism of this article of the Labor Code contains ways to perform additional work that have nothing to do with the translation provided for in Art. 72.2 of the Labor Code of the Russian Federation. On this basis, the employee was both the chief engineer before his manager went on vacation, and remained the chief engineer during his vacation. Even if the additional work is related to the signing of administrative documents, such as an order, he is obliged to put a signature in the details with the name of his position, and not the position of the general director. As a result, the chief engineer is required to make an additional payment to the basic salary in the manner prescribed by Art. Art. 150, 151 of the Labor Code of the Russian Federation, for performing additional work, and not for the fact that he was "assigned duties" as a temporarily absent general director.
This is fundamentally important! It is necessary to distinguish the concept of "additional work" from the concept of "imposition of duties" on the position of an employee temporarily absent from the organization. These concepts are completely different. They do not allow substitution for each other. The content of Art. 60.2 of the Labor Code of the Russian Federation very often - six times it is mentioned about additional work performed by one of the methods proposed by law, and not once about "assigning duties". This is not accidental, because when "assigning duties" there is a substitution, i.e. occupation of another position, and this is Art. 72.1. those. translation. Translation, in turn, entails the release of the former work and the transition to another. At the same time, the transfer obliges to perform the full scope of labor functions in another profession (position). It is for this reason that Art. 72.2 of the Labor Code of the Russian Federation refers to the transfer as a replacement for a temporarily absent employee, i.e. occupation of his position (profession), and not at all about additional work.
Quite another matter is the additional work entrusted in accordance with Art. 60.2 of the Labor Code of the Russian Federation. In accordance with Art. 151 of the Labor Code of the Russian Federation, the amount of additional payment is established by agreement of the parties, taking into account the volume and content of additional work. It is noteworthy that the additional work may, in terms of volume and content, be only an insignificant part of the labor duties of another profession (position), and in our example, the position of the general director. Consequently, the chief engineer will be responsible only for a certain part of the duties of the temporarily absent head of the organization. It remains to be clarified what part of the responsibilities in terms of volume and content as additional work will be determined and agreed upon by the employee and the employer.
As for the payment rules, according to Art. 150 of the Labor Code of the Russian Federation, when performing several works of various qualifications, the work of a specialist is paid for work of a higher qualification. There can be no doubts here, because the Unified Qualification Directory for the Positions of Managers, Specialists and Employees defines a higher qualification among specialists in any organization for the general director.
For the employer, additional work also benefits. Although it is performed along with (simultaneously) with their main work, this does not mean that the specialist is obliged to perform it only during the normal duration of the working day and week. The amount of additional work, as well as the amount of payment, are agreed between the employee and the employer, and are not at all established by law. For this reason, the employer does not have the right to prohibit the performance of additional work during those periods of time when the employee is free from labor duties in his main position. This provision is consistent with the purpose of the legal mechanism of Art. 60.2 of the Labor Code of the Russian Federation, aimed at solving production problems with a smaller number of personnel, in order to increase labor productivity. This feature is clearly lacking in the current version of the legal norm of Art. 60.2 of the Labor Code of the Russian Federation.
By law or "as always"?
The most insignificant deviation from the law when using the legal mechanism provided for by Art. 60.2 of the Labor Code of the Russian Federation, leads to a gross violation of the employee's rights to pay. Take, for example, the negligence with regard to the law, which is allowed in the wording of the above example from practice. Negligence manifested itself in the inappropriate use of such a thing as "temporary assignment of duties" to an employee. As a result, the actual agreement on additional work reached between the employee and the employer, when it is documented, i.e. under the "temporary imposition of duties" turned into a completely different legal mechanism - into a legal translation. This happened for the reason that the legal definitions in form provided by law for specific legal mechanisms are set out arbitrarily, i.e. "in your own words". The obvious non-compliance with the form of the law, allowed by the employer, is explained by the fact that "everyone writes like that." Even when the organization's lawyers try to formalize "as best", but at the same time distort the form of the law, it turns out "as always" is illegal.
In our example, as a result of the substitution of legal wording "in your own words", the chief engineer was transferred to the position of general director by "imposing duties" on him. It is a pity that in practice the chief engineer does not know this! Such a transfer takes place by virtue of law, regardless of the desire of the employer. Regardless of whether a transfer order has been issued. This clarification is mandatory, because many experts believe that the transfer takes place only in connection with the publication of the relevant order. In the case under consideration, by virtue of law, the transfer will be made from the moment when the chief engineer puts his signature in the very first administrative document, for example, in a production order with the title of the position "acting general director." What that means is of no importance. After all, the law cannot know what the employer "meant" by allowing the chief engineer to sign an order with the details of the "acting general director." And the law is not obliged to adapt to the illiterate actions of the employer. If they allowed the employee to put his signature in front of the position that he does not occupy, then they made the transfer. From this moment on, it is no longer possible to demand from the former chief engineer the fulfillment of his former labor duties!
In order to come to this conclusion without lengthy conclusions, having directly read the text of the law, the content of Art. 72.1 of the Labor Code shall be supplemented with a wording clarifying the concept of translation.
The problem and ways to solve it
Now about how relevant the problem is and whether it is necessary to talk about it. So, the price of the issue is determined by the fact that the chief engineer, transferred by virtue of law to the position of general director and in fact, i.e. in fact, as it should be when transferring, performing his work in full, as a rule, he does not receive a salary according to the salary of the position to which he was transferred. And the performance of work without payment or with payment not in full amount qualifies as forced labor, which is prohibited by Art. 4 of the Labor Code of the Russian Federation.
In the practice of labor relations, this fact is well known. The employer, by his arbitrary presentation, allows a slight editorial error, and the goal is achieved, i.e. employee is confused. He puts a signature under a position that he does not occupy and which is not in the staff list of this organization. And if there is no such position in the staff list, then there is nothing to pay the employee! This is the persuasive argument of any chief accountant. Here the price of the question is already involuntarily recalled. The work done, but not legally paid for, makes one wonder how inadvertently an "insignificant" editorial error is allowed.
Literature
1. Schumpeter I. Theory of economic development. Capitalism, socialism and democracy. - M., 2007.
V.Vanyukhin
Moscow State
open university,
head of the legal center "Science",
retired federal judge
Signed for print
What is "duty"? What is the legal nature, the content of this concept? It is rather difficult to answer this question. And perhaps in this uncertainty lies a lot of problems. In the Labor Code of the Russian Federation, in passing, the performance of duties is mentioned in Article 151 of the Labor Code of the Russian Federation. At the same time, only the case of the performance of duties without release from work will be affected. Despite the fact that the Labor Code of the Russian Federation talks enough about related, practically related concepts: translation; changing other terms of the employment contract determined by the parties, combining; part-time.
What is "duty"? In fact, as it seems to the author of this article, if an employee is released from his duties for this time, we are talking about a transfer, if he is not released, but fits into his working hours, in essence, this resembles a combination of positions and professions (although Article 151 of the Labor Code of the Russian Federation separates combination and performance of duties), if at the same time it still does not fit - it looks like an internal part-time job. Many lawyers think so. But again, these are conclusions drawn on the basis of other rules of law (articles that define translation, combination, combination), and not direct rules written somewhere. In addition, if the need to perform the duties of an absent employee with an appropriate surcharge is already spelled out in the employment contract, this does not look like a transfer, or a part-time job, or a combination, because. In this case, we do not change any terms of the employment contract. So, for registration of such performance of duties, only the corresponding order is sufficient.
Accordingly, the options for formalizing the performance of duties will also be different if the obligation to replace an absent employee is not spelled out in the employment contract.
If an employee is released from the performance of his duties, and the obligation to perform other people's functions was not spelled out in his employment contract, it is logical to make an additional agreement to the employment contract, which will reflect a temporary transfer and issue an appropriate order. Recall that according to Article 72.1. Labor Code of the Russian Federation, 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, as well as transfer to another locality together with the employer. This means that if an employee ceases to perform his functions for some time and performs others, this is a transfer. And yet, will such actions always be a translation?
Example 1
Let's imagine a small organization where, for example, 15 people work. There are no deputy directors at all. During his absence, the duties of the head of the organization are performed, for example, by one of the sales managers. He is relieved of his duties for the time being. Indeed, the manager begins to perform completely different duties and changing the employee's employment contract falls under the concept of transfer, given in Art. 72.1 of the Labor Code of the Russian Federation. Another thing, if, for example, we are talking about the deputy head for general issues. Let's say this is one of several deputies. In this case, another employee is a “regular” deputy. In the contract with the Deputy Director for General Affairs, there is no obligation to replace the director. But when comparing labor functions, we will see that they are practically the same with the director, the director just has more powers. But it is precisely the change in the labor function that is called translation, i.e. job responsibilities, rather than expanding the scope of authority. In addition, can we generally talk about release or non-release from our duties, if the duties of the deputy and the director are practically the same, it's another matter that their volume is now different? Thus, logically, the principal deputy is not released from his duties when performing the duties of a director.
What is the practical significance of reasoning about whether the performance of duties in a particular case is a transfer or not? The point is the following controversial issue: is it necessary, if an employee is relieved of his duties for the duration of someone else's work, to use a unified form of a transfer order, or can we make an order to assign duties in an arbitrary form?
Formally, according to Article 72. 1 of the Labor Code of the Russian Federation transfer to another job - a permanent or temporary change in the labor function of an employee and (or) the structural unit in which the employee works (if the structural unit was indicated in the employment contract), while continuing to work for the same employer, as well as transfer to work to another locality together with the employer (Definitely, such a definition of transfer, for example, includes the case described at the beginning of Example 1, when the manager replaced the absent director).
In principle, there are no purely labor risks associated with this dilemma. Another thing is that in accordance with the Federal Law on Accounting, all expenses must be reasonable and documented. Otherwise, the organization will not be able to attribute them to expenses for the purpose of calculating income tax. According to the same law, in order for them to be documented, the relevant primary documents must be drawn up according to the forms approved in the albums of the State Statistics Committee, and if there is no corresponding form, the organization really has the right to draw up a document in any form, indicating only a number of mandatory details. In other words, if the corresponding form is approved by the State Statistics Committee, and you have drawn up a document in an arbitrary one, then the costs for the purpose of calculating income tax can be removed from you and additional tax is charged, as well as penalties, fines, etc. This fact, of course, makes you think. On the one hand, of course, an aesthetically appropriate order to perform duties, if at the same time the employee is relieved of his functions, in a unified form for the transfer will look somehow unusual and ridiculous, and it seems, despite the fact that in essence this is a transfer , this is a certain and separate concept - "fulfillment of duties." On the other hand, what can you do to avoid the claims of the tax authorities. To be honest, I do not know the absolutely correct solution to this dilemma. The only practical advice that the author of this article could give is to use the resolution of the State Statistics Committee No. 20, which allows you to adapt unified forms to the needs of the organization.
This resolution contains a ban on the removal of individual details from the unified forms, but the organization has the right to add the necessary details and wording. The corresponding changes made to the unified form must be approved by the order (order) of the head of the organization, in accordance with the same resolution of the State Statistics Committee No. 20. Accordingly, you can make the necessary changes to the transfer order. But, you should pay attention to the order by which you will confirm these changes. It should specifically indicate that this modified form will not be used in every case of making a transfer, but in the case when the employee is assigned the duties of an absent employee. In principle, if you do not want to deal with the adaptation of the form, you can make two separate orders - on the transfer and on the performance of duties.
Whether it is necessary to make at the end of such a transfer another additional agreement on the annulment of the first one, of course, depends on how you made this first one. Naturally, if it is already written there that it is valid for a certain period, after which the replacement worker returns to a certain place, then there is no need to make any “cancelling” additional agreements.
If the employee is not released from duty, an additional agreement must also be made to the employment contract. But, of course, the additional agreement will have a different content. There will no longer be an exemption from their duties. The dilemma about the form in which to make the order, unified or not, also does not arise in this case, because. it is not provided.
Can an employee be hired as an acting manager for a vacant position?
In accordance with the Clarification of the USSR State Committee for Labor and the Secretariat of the All-Union Central Council of Trade Unions N 30/39 "On the procedure for paying for temporary replacements", approved by the Decree of the State Committee for Labor of the USSR and the Secretariat of the All-Union Central Council of Trade Unions N 820/39, the appointment of an employee as acting in a vacant position is not allowed. This is possible only by position, the appointment to which is made by a higher management body. In this case, the head of the enterprise, institution, organization is obliged, no later than one month from the day the worker is hired, to submit documents to the higher management body for his appointment to the position. This body, within a month from the date of receipt of the documents, must consider the issue and inform the head of the results. In case of non-approval in the position of an employee accepted by the head not from among the employees of this enterprise, institution, organization, he should be offered another job, taking into account qualifications and work experience. In the absence of relevant work or refusal of the offer, he is released from work on the grounds provided for by law, for example, by agreement of the parties. If an employee promoted to a managerial position from among the reserve of a given enterprise, institution, organization is not approved, he must be provided with work with qualifications and pay not lower than that which he performed before being appointed to a new position.
To put it simply, the general rule is that appointment to a vacant position is not allowed. But there are exceptions. And the resolution describes in principle the current situation for the so-called departmental organizations. When a lower organization must approve some leader by approval of a higher one.
Can this rule be “adapted” in some way to the case of an ordinary non-governmental organization that is not related to any department, and the board of directors or the supervisory board of the organization can be conventionally considered a “superior governing body”? Probably still not. And so, we can conclude that it is still impossible to accept an acting director for a vacant position.
Is it possible to appoint a non-employee of this organization as the acting head of the organization?
Based on the norms of the Federal Law N 127-FZ "On Insolvency (Bankruptcy)" it is possible. This law provides for the appointment by the arbitration court of a person acting as director (clause 4, article 69 of the above Federal Law). If the arbitration court satisfies the petition of the interim manager to remove the head of the debtor from office, the arbitration court issues a ruling on the removal of the head (director) of the debtor and, if the founders (participants) of the debtor fail to nominate the candidature of the head of the debtor, assigns the duties of the head to one of the deputy heads of the debtor, in the absence of deputies - one of the debtor's employees. The fact that the founders (participants) nominate a candidate for the position of the head of the debtor and approve it by the court means that a new head (director) has been appointed in the company instead of the dismissed one. The person in this case will not be a director, but an acting director.
However, this law, relatively speaking, describes a situation of extreme necessity (this term is used in the everyday sense, and not in the sense in which it is used in legal science.) But in practice there are more everyday situations. Let's take a concrete example.
Example 2
The head of the organization became seriously ill for a long time. Shareholders (founders) are well aware that no one is able to fully replace him. But on the side there is a talented person who could do his job. Can he be hired as acting director?
Some lawyers express the point of view that the adoption of a third party is quite possible and not only within the framework of the Federal Law "On Insolvency (Bankruptcy)". So, in their opinion, the same Federal Law “On Limited Liability Companies” allows the general meeting of participants in the company, by its decision, to assign the functions of a director to another person for a period of, for example, a long illness of the current director, incl. on a citizen invited from outside. To do this, it is necessary to hold a general meeting of participants, at which this issue will be resolved. If the company has only one member, then the issue of appointing an acting director can be resolved fairly quickly.
However, their opponents believe that, on the other hand, based on Article 151 of the Labor Code of the Russian Federation, only an employee of this organization can be acting as acting, which directly prohibits the appointment of a person who does not work in this organization as acting. What does this rule mean in practice? Let's take a concrete example.
Example 3
We all know that when a woman, an ordinary worker, for example, goes on maternity leave, in her place we accept a worker who does not fulfill her duties, but an equivalent worker, but under a fixed-term employment contract.
Continuation of Example 2.
The same is true if the illness of a worker has dragged on. In his place, we can accept an employee who does not perform his duties, but an employee under a fixed-term employment contract.
Question: How does the director of the organization in this case differ from other employees? If he falls ill for a long time or goes on maternity leave, should we replace him with an acting person (because the director has a special status and the change of director entails the need to notify the tax authorities, etc.) or should we accept after all, another person who is not acting, namely the head of the organization, for example, during the maternity leave of the first, tk. the rules are the same for everyone.
To be honest, it seems to me personally that it would be more correct to accept a person in the state in this case, following, of course, all the procedures prescribed in the constituent documents and notifying the tax office. However, this issue is really debatable.
If we proceed from the fact that my position is correct, then the design should be carried out in this case as follows. A fixed-term employment contract is concluded with the new director. The basis for this is Article 58 of the Labor Code of the Russian Federation, according to which a fixed-term employment contract is concluded when labor relations cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation - the employee is accepted to replace a temporarily absent employee, for whom, in accordance with the place of work is preserved with the law.
If there are several deputies, can they all together perform the duties of one absent leader?
Now let's imagine a situation where one director has several deputies: for legal issues, for personnel issues, for general issues, etc. If one of them is regular, everything is more or less clear. Logically, there is no need to make an additional agreement to the employment contract in case the director left or fell ill (the relevant duties and remuneration are already spelled out in the contract or the job description that is an annex to it, the corresponding situation was described in the heading of the article), it is only necessary to issue the appropriate order. If there is no full-time deputy, questions in this case will arise, of course, a few more.
Example 4
The director has several deputies: for advertising and marketing, deputy for HR and training, deputy for finance, etc. If the director goes on vacation, none of them will be able to productively perform all his functions for him. After all, an advertising assistant is unlikely to understand training, a financier in advertising, and a person dealing with personnel in marketing strategies. Their employment contracts do not provide for the performance of all the duties of the director during his absence. In this regard, of course, it would be more expedient to entrust each of the deputies with the performance of those functions of the director in which he understands. However, can it be done? After all, it would be logical. Why can't the sole executive body scatter its duties among several people? And all these workers will make up this body in the aggregate? After all, from the point of view of expediency and productivity, would this be correct? Hypothetically, the analysis of the legislation makes it possible to substantiate both that this is possible and that it is unlawful. How do you change the law. However, in practice, everyone adheres to the position that one person should be responsible for everything that happens during the absence of a leader. We won’t tell the inspection organization that appeared in the restaurant during the absence of the director, and dissatisfied with the quality of service and financial reporting, that Ivan Petrovich is responsible for the chicken feet, and Sergey Pavlovich is responsible for the papers on them. In this case, it is still necessary to choose from several deputies one who will perform all the duties of the main employee, receive in some way the consent of this deputy in writing. Or, if it is initially assumed that this particular person, for example, the deputy director for finance, despite his “narrow specialization”, will perform the functions of the main employee, prescribe such a condition in the employment contract.
Question 5: How to pay for the performance of duties?
According to Art. 151 of the Labor Code of the Russian Federation says that additional payments are due for the performance of the duties of a temporarily absent employee if the employee is not released from his main job for this time. The amount of these additional payments is established by agreement of the parties to the employment contract. The clarification of the State Committee for Labor of the USSR and the Secretariat of the All-Union Central Council of Trade Unions No. 820/39 “On the procedure for paying for temporary replacement” (it is valid in the part that does not contradict the Labor Code of the Russian Federation) says the following. The temporary acting employee is paid the difference between his actual salary (official, personal) and the official salary of the replaced employee (without personal allowance). Thus, the additional payment may be the difference in the salaries of the general director and the employee who temporarily replaces him. Is it necessary to pay extra for the performance of the duties of the general director to his deputy, if the replacement of the director is the direct responsibility of this employee under an employment contract? Need to. Until recently, paragraphs 3 and 4 of clause 1 of the clarification “On the procedure for paying for temporary replacements” were in force, which provided that the difference in salaries was not paid to a full-time deputy or assistant to an absent employee (in this case, the general director), as well as to the chief engineer who replaces the absent leader. However, the Supreme Court of the Russian Federation, by ruling No. CAS 03-25, canceled this clause as infringing on the rights of employees and contrary to Article 151 of the Labor Code of the Russian Federation. Thus, any employee, including the full-time deputy general director, needs to be paid extra for the temporary performance of the duties of a manager.
But how to pay an employee if he is released from his job for the duration of the duties of another employee in Article 151 of the Labor Code of the Russian Federation is not said. Apparently, in this case, it is necessary to be guided by the norms of payment for work established by the Labor Code of the Russian Federation for translations.
Do I need a power of attorney for the performance of duties, or is it enough to issue one order on the assignment of the performance of duties?
In the opinion of the author of this article, when formalizing the assignment of the performance of duties, it is necessary to issue both an order and a power of attorney. The order is necessary for the implementation of internal management of the organization, the power of attorney - for transactions. This follows from the norms of Chapter 10 of the Civil Code of the Russian Federation on representation. However, case law on this matter is contradictory. Thus, the FAS DO (see resolution N Ф03-А59 / 04-1 / 3303) indeed recognized the contract signed on the basis of only one order without a power of attorney as invalid. However, the decision of the Federal Antimonopoly Service of the Urals District N F09-2294 / 08-C5 states the following: “The Court of Appeal correctly stated that the issuance by the sole executive body of an act on the appointment of a temporary acting officer (order N 142, order N 797-k) is sufficient grounds to transfer the powers of the sole executive body, including the right to terminate the contract, to the temporarily acting person. In the decision of the Federal Antimonopoly Service of the Moscow District N KG-A40 / 3573-01, the court of cassation indicated to lower courts that it was necessary to familiarize themselves with and examine the charter of the company, considering it insufficient that only an order appointing an acting officer was included in the case file. According to the position of the court, the charter is necessary in order to conclude that the legal procedure for assigning the duties of the general director has been observed. Those. the court considered that an employee appointed as an acting director cannot act without a power of attorney on behalf of the company, only on the basis of an order, if there are no relevant special provisions in the company's charter. And they are not in most charters of societies.
In our LLC, according to the charter, the board of directors appoints the general director and removes his authority. The charter does not prescribe the procedure for replacing the head. A change of ownership is planned for the near future. In this regard, it is planned to remove the powers from the current general director on March 1 and from March 2 to appoint another employee of the enterprise as the general director. The appointment will be temporary, since the future general director of the enterprise is a foreign citizen and will be able to start work no earlier than at the end of March after all permits have been issued. Question 1: what will take place in this case: transfer to another position or performance of duties? It seems to me that the performance of duties is not suitable for this situation, since the powers of the current general director will be terminated by decision of the board of directors. This means that the board of directors must elect a new general director and set a deadline. Question: how to document the right decision? Thank you in advance!
Answer
Answer to the question:
Having considered your question, we note that in accordance with the legislation of the Russian Federation, it is possible to temporarily assign duties to an employee that are not provided for by his employment contract in one of the following ways:
- How - performance by the employee of additional work within the established duration of the working day.
- How - performance by the employee of additional work in his spare time from the main work. At the same time, the duration of working hours for part-time workers cannot exceed four hours a day.
- How - in this case, in order to fulfill the duties of the position of the head, the employee must be temporarily relieved of the duties of his main position.
That is, if an employee of the organization is relieved of his duties and appointed to the position of director, therefore, in this case we are talking about a transfer, if not, a part-time job or a combination. At the same time, we note that, in accordance with Art. 72.2 of the Labor Code of the Russian Federation, by agreement of the parties, concluded in writing, an employee may be temporarily transferred to another job with the same employer for up to one year. Therefore, when making a temporary transfer of an employee, you must indicate the expiration date for the temporary transfer, otherwise this transfer will be considered permanent and you can return the employee to his previous position only in the general manner, i.e. with his consent.
Also in conclusion, we note that positions with the prefix “and. O." or "v.r.i. O." does not exist. And the use of this prefix is \u200b\u200bpossible only in one exceptional case, if this position (i.e. acting) is provided for by the staffing table.
If the position of "acting director" is not provided for in your staff list, then the appointment of an employee to this position is very doubtful. Such a free designation of positions may lead to the contestation of transactions concluded on behalf of the organization by the acting director.
Note:
Please note that a change of LLC members is not a change in ownership of LLC property.
The Plenum of the Supreme Sura of the Russian Federation in its resolution dated March 17, 2004 No. 2 explained:
Since, in accordance with paragraph 1 of Article 66 and paragraph 3 of Article 213 of the Civil Code of the Russian Federation, the owner of property created at the expense of contributions from the founders (participants) of business partnerships and companies, as well as produced and acquired by business partnerships or companies in the course of their activities, is a company or partnership, and the participants, by virtue of the second paragraph of clause 2 of Article 48 of the Civil Code of the Russian Federation, have only liability rights in relation to such legal entities (for example, to participate in managing the affairs of a partnership or company, to take part in the distribution of profits), a change in the composition of participants (shareholders) cannot serve as a basis for termination of the employment contract under clause 4 of part one of Article 81 of the Labor Code of the Russian Federation with the persons listed in this norm, since in this case the partnership or company itself remains the owner of the property of the business partnership or company and there is no change in ownership of the property.
Details in the materials of the System:
1. Situation:Is it possible to use positions with the prefix “and. O."
, approved , and , approved , do not contain positions with the prefix “and. O.". (temporary replacement), as a rule, is issued either as an assignment for additional work while maintaining the same duties without changing the position, or as a temporary transfer to the position of the one who needs to be replaced (Art. , Labor Code of the Russian Federation).
At the same time, an employee who, without releasing from his main duties, temporarily replaces an employee responsible, among other things, for signing any documents, when signing such documents in the “Signature” attribute, instead of his current position, may indicate “and. O." and position of the replacement employee.
For example, Glebov's financial director, without releasing his main duties, temporarily replaces Lvov's general director during his vacation. A document that generally requires a director's signature can be signed by Glebova as acting. For example:
"AND. O. General Director Personal signature A.V. Glebov.
This possibility is provided in the Guidelines for the implementation of GOST R 6.30-2003.
Another signature option is an indication of your current position (GOST R 6.30-2003, approved). For the example above, it would look like this:
“Financial Director Personal signature of A.V. Glebov.
To confirm your authority to sign documents, next to the signature, you can additionally make a link to the order, according to which the employee is temporarily instructed to replace another employee and perform his duties.
From the answer ""
Nina Kovyazina
Deputy Director of the Department of Education and Human Resources of the Ministry of Health of Russia
The temporary absence of an employee can be caused by several reasons, for example, another vacation that employees face every year or leave to care for a child under 3 years old. In addition, the absence of an employee can be caused by on-the-job training or a prolonged illness.
In any case, the fact of his prolonged absence will be evident and usually it becomes necessary for other employees to temporarily perform his duties.
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About problem solving options
Labor legislation (Articles 60, 72, 151 of the Labor Code of the Russian Federation) provides for several possible ways to solve this problem:
- assigning functions to employees who are required to do this, according to the employment contract;
- conclusion of an additional agreement with employees on the combination of duties;
- temporary transfer of an employee;
- movement of workers;
- hiring associates.
Part-time and fulfilling the duties of a temporarily absent employee - what's the difference? First you need to define what the term performance of the duties of a temporarily absent employee means.
It may mean:
Fulfillment of duties of a temporarily absent employee - combination
The assignment of functions to an employee whose employment contract specifies their performance in the absence of the main employee. Such an IOWOR will not entail any changes, here we are usually talking about the expansion of the so-called service areas or an increase in the volume of work.
There can be both another work, and the same as the main one. Work is performed during working hours, does not require additional hours. Such a combination is formalized by an additional agreement, necessarily in writing. Combination order issued. There is no additional charge here.
The next type of IOVOR will be the same work, but assigned to a person whose employment contract does not contain a substitution clause. At the same time, an additional agreement is also necessarily drawn up, an order is issued and information is entered into a personal card. Such an employee is paid an additional payment as a percentage of the salary or in the amount of actual output.
When combining, the employee performs additional work functions during the main working hours, while he can refuse such a combination by notifying the employer 3 days before the end of the performance of duties.
Temporary Transfer and Relocation
In addition, management may decide to move an employee from another department to this area of work. At the same time, he will perform the same work function as at the previous workplace. Simply put, his responsibilities do not change - only the unit in which he works.
Such a transfer may be made without the consent of the employee. But this is possible only if the employee’s employment contract does not indicate the unit in which he works and within the same administrative point.
When an employee is transferred to another position, he remains working in the same department, but performs other functions.
A temporary transfer is issued by order, the information is entered into a personal card and an additional agreement is drawn up to the employment contract.
In this case, the temporary transfer can be no more than one year. After that, he moves into the category of permanent work.
part-time
Compatibility can be internal and external. The main difference between part-time work is the performance of the functions of an absent employee in additional time, different from the main worker. So, according to the law, part-time employment cannot exceed 0.5 work shifts (4 hours) on working days and can be a work shift on a day off for an employee.
Internal combination- this is the performance of additional functions by employees of the company during non-working hours.
External- performing additional duties outside the main place of work.
In case of part-time work, the employee is registered for work in the same way as for the main one. At the same time, an order is issued and an accounting card is issued (even for those who combine duties at one enterprise). But an entry in the work book is entered at the request of the employee.
At the same time, the work book is located in the personnel department at the main place of work, and a certificate of the mode of work is provided for an additional one. An entry in the work book about part-time employment is made at the main place of work after providing a certificate from the place of part-time employment.
Written consent of the employee Written consent of the employee must be obtained in all cases, the assignment of additional functions. When applying for a part-time job, you must receive an application for admission.
Written consent is not required:
- when moving an employee;
- performance of the functions prescribed in his functional duties.
When transferring an employee to a lower position, his consent in writing is required. What is stated in the issued order.
In addition, the employee gets acquainted with the transfer order under the signature, where the date of familiarization is affixed.
Additional agreement to the employment contract
In each case, an additional agreement is drawn up to the main employment contract, which is filed with the main one. It should contain as much detail as possible about the conditions for fulfilling additional duties.
If there are obligations that are not prescribed in the employment contract, the employee must be familiarized with them. Familiarization with additional functional responsibilities is carried out under the signature. They also introduce other regulatory documents, for example, safety regulations.
An order on the temporary performance of additional duties An order on a temporary transfer, in addition to the employee's personal data, must contain:
Information about the position held by the transferred employee and the position to which he is being transferred, for example, sales department manager O.Yu. Kindzov. as General Manager of the Sales Department.
With an indication of the temporary performance of duties, for example, temporarily. The reasons for such execution, for example, for the period of vacation of the main employee of the general manager Sukhoi S.P.
Another important point of the order is the indication of the date from which the employee must begin to perform his duties and the date by which he performs them, for example, from 02.10.2015 to 02.11.2015.
When making an additional payment, a corresponding order is made in the order, for example, with an additional payment in the amount of 30% of the salary of the general manager of the sales department.
A sample order and the algorithm for filling it out can be found here: http://blankiroom.ru/news/2009-09-22-17
An inscription on the familiarization of the relocated employee with the date of familiarization is required on the order.
Surcharge
In most cases, the performance of additional functions entails a surcharge. As a rule, this is a percentage of the salary of the replaced employee, or payment for the actual completion of the task.
The surcharge is not carried out if there is a clause in the functional duties on such a combination in the absence of the main employee.
For example, a deputy chief may replace him in case of absence, while he may have the right to sign documents and make decisions independently. But since in his functional duties there is a clause on replacing the head in case of his absence, he will not be paid extra.
About entries in work books
In the work book, an entry on a temporary transfer to another job is not made. An appropriate order is issued, an additional agreement is signed, information on relocation, replacement and temporary transfer is entered in the employee’s personal card, but no entry is made in the work book, since this is not provided for in the Instructions for maintaining work books.
You can make an entry only about part-time work, if you have a certificate from the part-time employer. In this case, information is entered by the main employer and only if the employee wishes.