Employment of an external part-time worker at the main place of work
The legislation does not provide clear answers about the procedure for such employment. Such legal relations do not fall under the very concept of translation, because according to Art. 72.1 of the Labor Code of the Russian Federation the following amendment applies to it:
- labor function of the employee;
- department or other unit in which he worked;
- areas where work activities take place.
Therefore, the use of the term “translation” to this change in legal relations is not entirely correct.
Usually there are 2 options for action in such a situation:
1. Drawing up an additional agreement to an existing contract, in which the conditions for external part-time work are changed to the conditions for the main job.
2. Dismissal of an external part-time worker with his subsequent employment at the main place of work.
There may be problems with the first option, since the legislation does not clearly regulate such legal relations. In particular, questions may arise about the preparation of the entry in the work book provided for by the relevant standards, etc.
The second option seems to be the most suitable in this situation, since it has a clear legislative basis and is easily documented. But the right to choose remains with the parties to labor relations. Therefore, next we will consider the details of using both options for transferring an external part-time worker to the main place of work.
We recommend that you familiarize yourself with the documentary support for employment in the article “How is hiring an employee formalized?”
Transfer of an external part-time worker to the main place of work without termination of the employment contract
This method is the most convenient for the employer, since when using it there is no obligation to terminate the employment contract and make final payments to the employee upon dismissal. But on the part of the employee there are also positive features of using this method, for example, he retains the accumulated vacation days, there is no obligation to go through a probationary period in the company again.
The procedure for transferring an external part-time worker to the main place of work when using the second option will include the following procedure:
1. Making changes to the employment contract by concluding an additional agreement to it, which will stipulate that the employee is transferred from an external part-time job to the main place of work;
2. Making an additional entry in the employee’s work book. If there is a record of part-time work, then in the second column it is necessary to additionally indicate from what period the employee begins his main job. In the third column “Information on hiring, transfer to another permanent job, qualifications, dismissal,” the employer must indicate that the part-time position has become the main one for this employee. If initially there was no record of external part-time work, it should be made before reflecting the transfer to the main place of work.
Drawing up an additional agreement
To document the relevant changes in the legal relationship between the employee and the employer, the following steps should be taken:
1. The parties draw up and sign an agreement on amendments to the employment contract with the employee, which specifies the following:
- the employee’s main job;
- effective date of the changes;
- certain provisions that previously applied to part-time work have become invalid;
- other provisions related to the regulation of the employee’s labor at the main place of work.
2. The employee must hand over to the employer a work book with a record of dismissal from the previous place of main work.
3. The employer needs to issue an order that the employee is hired for the main job and the external part-time job is terminated.
These 3 steps are basic. Additional actions will be:
- making a corresponding entry in the employee’s personal card and familiarizing him with it against his signature;
- making an entry about employment in the work book.
If an employee has chosen the electronic option of maintaining a work book, issue him an STD-R, and send a report to the Pension Fund of the Russian Federation in the SZV-TD form.
A sample of filling out a report for the Pension Fund of Russia is available in ConsultantPlus. Get free demo access to K+ and proceed to tips from experts on how to fill out the report in this case.
The specific entry in the work book depends on whether the previous employer indicated information about part-time work. Depending on this, the following options are possible:
- in the absence of the specified entry, an employment record must be made from the date of commencement of the main job with the new employer;
- if the specified entry is available, an entry should be made stating that as of a certain date, the work became the main one for the part-time employee.
The indicated options were proposed by Rostrud in a letter dated October 22, 2007 No. 4299-6-1.
How to transfer an external part-time worker to your main job
External part-time work is the performance by an employee, in his free time from his main job, of paid work for another employer under the terms of another employment contract (Part 1 of Article 343 of the Labor Code).
If for some reason an employee loses his main job, then the part-time employment relationship must be re-registered. Let's look at how to do this.
Dismissal of an employee
The basis for the dismissal of an external part-time worker in the situation under consideration is clause 2 of Art. 350 TK. Let us note that on this basis an employment contract of any type can be terminated (fixed-term, indefinite-term, contract).
If the initiator of dismissal under clause 2 of Art. 350 Labor Code and the subsequent hiring of the employee to the main place of work, he writes a statement about this to the employer. If the employer offers the employee to move to his main place of work, then the employer sends the offer to the employee. In this situation, as a rule, the employee takes the initiative.
The employer expresses his consent to the dismissal and subsequent hiring of the employee to the main place of work by resolution.
Based on the application with a resolution, the employer issues an order (instruction) on dismissal and introduces it to the employee against his signature. Further, if necessary, compensation for unused vacation is calculated. Full settlement with the employee is made no later than the day of dismissal (Part 1 of Article 77 of the Labor Code).
Recruitment
Despite the fact that the employee has already worked for the employer, when hiring, you should receive all the necessary documents from the employee (identity document, education document, etc.) (Article 26 of the Labor Code). Please note that there is no statement among the established documents. It is advisable to ask the employee to write it, because it is included in the personal file (paragraph 7, paragraph 6 of the Instructions on the personal files of employees). The application should indicate the desired mode of work, since a part-time worker, becoming the main employee, will probably be able to work full time (shift) (Article 111 of the Labor Code) or, while remaining working part-time, will prefer to change the start and end times of the working day.
Also, the employee must present a work book, since he is hired not as a part-time worker, but as a main employee (clause 2, part 1, article 26 of the Labor Code). The work book is the main document about the employee’s work activity (part 1 of article 50 of the Labor Code, clauses 4, 5 of the Instructions on work books). The employer makes a record of hiring in it.
Note : We would like to remind you that the entry for part-time employment is made at the request of the employee by the employer at the main place of work (clause 14 of the Instructions on Work Books). If the employment record was made by the employer for the main job, a record of dismissal from part-time work will be required. However, by the time of dismissal from a part-time job, the employee no longer has his main place of work, therefore, there is no employer who has the right to make entries in the work book. At the same time, the employer for whom the employee worked part-time almost immediately becomes the employer at the place of his main job, so we believe that this employer can make an entry about the dismissal in the work book.
After receiving all the necessary documents, the employer enters into a new employment agreement (contract) with the employee, which must indicate that the work is the main one, and also provide for a work and rest regime, if it differs from the general rules established by the employer (LC). After this, the employer issues an order (instruction) on hiring and introduces it to the employee against his signature.
Note: The legislation does not directly prohibit combining orders for hiring and dismissal. They have the same shelf life (75 years) (subparagraph 21.3, paragraph 21 of the List of Standard Documents No. 140), and not the originals, but their copies are sewn into the personal file (paragraph 8, paragraph 6, paragraph 5, part 1, paragraph. 8 Instructions on personal files of employees). At the same time, we believe that combining such orders is inappropriate.
Next, the employer, if necessary, opens a personal file for the employee, conducts induction training, etc.
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Dismissal of a part-time worker with subsequent employment
To apply this method, the employee must first be fired. To do this, it is advisable to use one of two methods of dismissal:
- By agreement of the parties (Article 78 of the Labor Code of the Russian Federation). As follows from this norm, this basis can be applied at any time with the consent of the employer and employee.
- According to the employee’s statement that he has a desire to quit (Article 80 of the Labor Code of the Russian Federation).
The procedure for applying these grounds is usual. In other words, the fact that a part-time worker will be transferred to the main job through such dismissal does not affect the dismissal procedure.
Then, an employment contract for work at the main place is drawn up, signed and comes into force between the employer and the employee. The next step is to issue an order on the employment of the employee. Based on this order, an entry is made into the work book about hiring.
We will look at the employment procedure in more detail in the next subsection. Regarding the issue of dismissal, it is important to know the following.
The length of service giving the right to leave at the main job will not depend on the length of service of the part-time worker before dismissal. Therefore, upon dismissal, you should fully settle accounts with the employee on this issue, and, if necessary, pay him compensation for unused vacation.
If the work book does not contain information about part-time work, then an entry about the dismissal of a part-time employee should not be made in it. If there was such a record, then the document must include information about the dismissal of the part-time employee.
OPTION 1. DISMISSAL FROM A PART-TIME JOB AND HIRING ON THE MAIN JOB
Personnel officers very often use this method: an employee is fired from a part-time job and hired again, this time under new conditions. We emphasize that the employee himself must agree to this.
Extract from the letter of Rostrud dated October 22, 2007 No. 4299-6-1 […] only with the consent of the employee, it is possible to terminate an employment contract for part-time work (for example, by agreement of the parties, at one’s own request), and then conclude an employment contract with other conditions. At the same time, appropriate entries are made in the employee’s work book.
If the employer uses this option, there are some nuances to consider:
1. When hiring after dismissal from a part-time job, the employer may establish a test on the basis of Art. 70 Labor Code of the Russian Federation.
2. The right to the next paid leave will arise after six months.
3. When an employee is dismissed from a part-time job, compensation for unused vacation must be paid.
We prepare documents
So, when dismissing an employee, you need to issue an appropriate order, and then apply for employment in the main job (for the same or another position/profession).
If the employee did not apply to the main employer with a request to make an entry about part-time work in the work book, it will not contain records of either acceptance or dismissal from the part-time job.
Employment procedure for a dismissed part-time worker
When concluding an employment contract, an employee applying for a primary job must present:
- ID card (passport);
- work book;
- insurance certificate OPS and other documents provided for in Part 1 of Art. 65 Labor Code of the Russian Federation.
Does an employer have the right to keep a copy of an employee’s passport in his personal file? The answer to this question is in ConsultantPlus. If you do not have access to the K+ system, get a trial online access for free.
Before signing an employment contract, a new employee at his main place of work must be familiarized with the documentation regulating his work activity (Part 3 of Article 68 of the Labor Code of the Russian Federation). In particular, you need to familiarize yourself with:
- with internal labor regulations;
- the procedure governing the use of personal data;
- regulations on remuneration (if any);
- documentation on labor protection;
- job description, etc.
It is important that the employment contract is signed after reading these documents, and not before.
The employment contract itself must be drawn up in writing in 2 copies. One signed copy will remain with the employer, the other will be given to the employee.
Employment at the main place of work can be formalized under either a fixed-term or an open-ended contract. As a general rule, an open-ended contract is concluded.
If the contract is fixed-term, then when concluding it all conditions and formalities provided for in Art. 58 and 59 of the Labor Code of the Russian Federation. It is important to know that the conclusion of such an agreement in cases not specified in Art. 59, prohibited.
Employment must be accompanied by the publication of a corresponding written order from the employer, which the employee familiarizes himself with under his signature.
Entry in the work book
Making an entry in the work book is a mandatory stage in an employee’s employment, which cannot be ignored or left “for later.”
The corresponding entry is made in the “Work Information” section of the work book. When filling out this document, the following order must be observed:
- in gr. 1 enter the serial number of the entry;
- in gr. 2 digits indicate the date of employment, for example: “11/30/2020”;
- in gr. 3 reflects the name of the organization (full and abbreviated, if any), as well as records about the structural unit and job title;
- in gr. 4 reflects the details of the employment order.
After completing these records, the employer should familiarize the employee with them, recording this fact in the work book and in the personal card in form No. T-2.
IMPORTANT! The employer, in accordance with the law, is responsible for the correctness and timeliness of registration of work books. A violation in this area may become the basis for liability under Part 1 of Art. 5.27 Code of Administrative Offenses of the Russian Federation.
Read more about the procedure for filling out this form in the material “Instructions for filling out work books.”
We recommend that you familiarize yourself with the innovations in this area in the article “Electronic work books - all the pros and cons.”
Results
It is not entirely correct to call the employment of an external part-time worker at the main place of work a transfer, since the concept of transfer in the Labor Code of the Russian Federation is given a slightly different meaning.
There are 2 ways to register. The first is accompanied by the conclusion of an additional agreement, according to which the conditions on external part-time work lose force, and the conditions on the main job, on the contrary, enter into it. The second option is accompanied by the dismissal of the part-time worker and his subsequent employment in the main job.
Both options have their own design subtleties.
If in the second case the general procedure for dismissal and hiring is applied, then in the first it is possible to use methods proposed by Rostrud, but not established by regulations. Therefore, the second option, regulated by the norms of the Labor Code of the Russian Federation, is considered preferable. You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.
