General concept
Article 60.2 of the Labor Code of the Russian Federation states that the acting employee must perform the work specified in the employment contract, but, in addition, perform the duties of the position to which he was appointed. This work is performed for an additional fee and only with written permission. It is worth noting that there is no such profession as acting, there is only a temporary combination of positions.
The terms for combining positions are always different and are established with the written consent of the employer and the deputy. Each party has the right to refuse at any time; this must be stated in writing 3 days in advance.
Before assigning an employee to perform duties, it is necessary to draw up an agreement and specify in it what exactly is included in the job responsibilities and what powers the employee must perform. In addition, it is necessary to indicate the length of the employee’s tenure in this position and what additional payment he is entitled to.
Application of articles
During the period of appointment of a deputy employee, you can be guided not only by Article 60. In this case, other articles of the Labor Code should also be taken into account, for example:
- You can make a translation under Article 72.2. The appointed employee has the right to refuse his or her job and perform only the duties of the absent employee. There may be no term limit for this position. If the transfer location is vacant, the employee can stay there on a permanent basis. But it is worth remembering that a temporary or permanent transfer should only be carried out with the written consent of the employee.
- You can also rely on Article 72.1. It states that an employee can be moved not only to another workplace, but also to another department. In addition, the employee will work with different equipment at the new location. For this reason, it is necessary to review the employment agreement and make amendments. All this must happen with the consent of the employee.
- Guided by Article 59, a fixed-term contract is concluded with the employee. If this position is vacant, it is possible to conclude a permanent contract, but you must comply with all the rules and requirements of the Labor Code of the Russian Federation.
If all procedures are carried out according to the rules and in accordance with the law, then a deputy in a higher position can become a permanent employee with a higher salary.
Design rules
Many people wonder whether it is necessary to register an employee who will perform the functions of an acting employee if this condition is specified in the employment contract. The registration of such an employee is considered mandatory, since the duties assigned to the employee must be fixed by order of management. This rule is spelled out in the Labor Code.
In addition to the basic rules, there is a job description. This is a specially created act that sets out all the rights and obligations of the employee. If they include a replacement clause, this means that the employee is obliged to replace an absent employee at any time.
For such a condition to come into force, it is necessary to create an order and indicate in it the specific employee who is responsible. In addition, it is necessary to indicate the length of stay in this place and what additional payment he is entitled to.
Questions about timing
Many ignorant citizens are interested in what period of performance of duties for a vacant position can be established by order of the manager? The Labor Code says nothing about this. There are no explanations in labor legislation because this form of employee transfer is not provided for at all. Consequently, it is not entirely correct to talk about any (including continuous) period of performance of duties for a vacant position. In such cases, the employee should be considered to have been transferred permanently. This, in turn, requires the consent of the employee. Let us turn to the explanations of the Supreme Court.
Resolution No. 16 states that if an employer transferred an employee without his consent, and he, in turn, began working voluntarily, then this action can be recognized as legal. Therefore, the employee will be considered holding the position from the 1st day of transfer.
Establishing a specific deadline for fulfilling duties for a vacant position has no legal significance for regulating labor relations. Such a temporary appointment of an employee must be considered a permanent transfer to another place (subject to his consent) in accordance with Article 72 of the Labor Code.
Signature right
Very often in enterprises where an acting employee is in charge, the question arises whether the acting director can fire employees. All this depends on what powers are specified in the order. Most often, an employee has the right to fire and hire new employees.
When signing any documents, employees most often write “acting” and signature. This is actually not true. A valid signature is considered to be one that states:
- Employee's position.
- Signature.
- Surname and initials.
Since there is no such position as acting, near the signature the employee must indicate the same position that is stated in the employment agreement, since all matters are officially transferred to him.
Appointment dates
There are no specific terms for holding another position.
They can be set by the manager for the time required. If a director is absent from work for some reason and cannot appoint a director in his place, this is done by the company's participants. If there are many participants, the appointment will take a lot of time. To do this, you need to hold a meeting, which is provided for by federal law.
Transfer of powers
The replacement of the head of any enterprise must be specified in the employment contract and the job description of the employee who will replace him during the period of absence. If this is not provided for in the contract, then a new order is created, which specifies all rights and obligations. In addition, it is necessary to specify all the powers that the deputy will have, for example: the right to sign, draw up financial documentation and employment contracts . At the end, exact deadlines are indicated.
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After this, an order and an agreement are issued, which is signed by both parties. The main point is the execution of a power of attorney, which indicates all the transferred powers. A power of attorney is a written agreement that one employee gives to another in the presence of a third party. The minimum validity period of such an agreement is 3 years. If there are no deadlines in the document, then it is valid only for a year from the date of issue. The person who issued the power of attorney has the right to revoke it at any convenient time.
Decor
When an employee is appointed to a vacant position, the standard hiring or transfer procedure is applied. In the first case, the candidate provides all the necessary documents and writes an application. The employer and the citizen enter into an agreement.
Before signing, the candidate must carefully read the contents of the document. The fact is that some employers use incorrect language. Signing the contract means voluntary agreement with the terms of employment.
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Often, employers take advantage of employees’ legal illiteracy and appoint them to act in vacant positions. And the employees, in turn, voluntarily agree to this. In practice, it turns out that employees do both their own and others’ work. Remuneration, in turn, as a rule, in such cases does not correspond to the volume of work activity.
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Nevertheless, if such contradictory situations arise, it is advisable to contact the labor inspectorate.
Essentially, the employee can refuse to perform additional duties. To do this, he needs to contact the employer directly and write a statement.
It is worth saying that many employees consciously agree with the employer’s proposal. This is usually associated with the employer's promises to pay high remuneration. But in reality, the employee does not always receive the expected amount. It is in such situations that problems begin. On the one hand, the employer’s actions are illegal, on the other hand, the employee himself agreed to the conditions.
Temporary replacement of an absent employee with a newly hired employee
If an employee is absent for a long time, it is legal to hire another specialist to fill his position on a temporary basis. To do this, it is necessary to conclude a fixed-term employment agreement. Based on Art. 59 of the Labor Code of the Russian Federation, such a procedure is regulated by the general rules for formalizing labor relations.
A feature of such a fixed-term contract is the mandatory recording of the fact of temporary work, as well as the designation of a specific period for the performance of labor duties in the position in question.
Based on Art. 58 of the Labor Code of the Russian Federation, such a period is drawn up by agreement of the parties (manager, temporarily absent employee, as well as an employee who will perform someone else’s duties), but it should not be more than 5 years.
If the contract does not stipulate the period in question, the agreement is considered to be concluded for an indefinite period. Thus, when the main employee returns to work, serious legal conflicts will follow between the manager and both subordinates. This will happen due to the ban on dismissing employees without serious reasons. Therefore, it is strongly recommended to enter in advance the frequency of work of the subject replacing the main frame.
Based on Part 1 of Art. 59 of the Labor Code of the Russian Federation, it is possible not to indicate a specific date for termination of the contract, but to state the condition that the fixed-term agreement loses force when the main employee returns to work.
Performing duties for a vacant managerial position
The Federation Council issues a resolution by which it rejects, based on the results of a secret ballot, the candidacy of A.N. Ilyushenko presented by the President of the Russian Federation. for appointment to the post of Prosecutor General of the Russian Federation and invites the President of the Russian Federation to submit to the Federation Council a new candidate for appointment to the post of Prosecutor General of the Russian Federation within two weeks. The President of the Russian Federation presents the same candidacy and on October 25, 1994, the Federation Council again rejects it based on the results of a secret vote. Since the procedure for repeated rejection of a candidacy in the legislation did not have a legal solution, Ilyushenko A.N. remained in acting status until 08.10.1995 - until he was released from the duties of the Prosecutor General of the Russian Federation by special Decree of the President of the Russian Federation No. 1027. The situation was similar with the performance of the duties of the Chairman of the Central Bank of the Russian Federation. 1994
Assign responsibilities during a vacant position
Important As a result, full-time assistants (deputies) can count on additional pay, Ch.
engineers, etc. Nuances If the position of an absent employee is filled by an employee with a release from his main activity, he can count on receiving a salary in an amount no less than the average earnings that he received at his workplace.
The general rules for determining the average salary are established by the Government in Decree No. 213 of 2003.
Paragraph 12 of this document provides an interpretation of the provisions of Article 26 of the Labor Code of the RSFSR.
Detailed description of the recruitment procedure
The combination of job responsibilities for different positions is considered by 60 Labor Code of the Russian Federation. It also talks about what additional work should be like if there is no separation from the main job.
When completing the procedure, it is required to use certain types of internal documentation. They record the conditions with which changes are associated.
It is important to comply with the following conditions associated with the procedure:
- Obtaining written consent is important in most cases.
- Additional duties are performed by the new employee while the work shift is in progress. Its Internal regulatory documents of the enterprise contain a description of the conditions. Overtime and pay are separately regulated when there is overtime.
- The transfer usually takes place in the same company where the main workplace is located.
- Employees are entitled to additional pay when they perform someone else's duties. The specific volume and size are the result of an agreement between the parties.
When transferring, the manager issues a special order containing the following details:
- Both parties sign.
- Indication of additional payment, with the exact amount.
- If known, the reason why the employee is not present.
- The length of time during which the agreement remains valid.
- Description of the position of the subject appointed as a replacement. They separately describe the duties that must be performed.
Temporary performance of duties for a vacant position
Employees, remember that the employer has the right to assign duties for a vacant position only with the written consent of the employee .
The Labor Code of the Russian Federation (when referenced - the Labor Code of the Russian Federation) prohibits requiring an employee to perform work not stipulated by the employment contract. Exceptions are made only in cases directly established by the Labor Code of the Russian Federation or other federal laws. For example, accidents, catastrophes, and other emergencies.
Part 1 art. 60.2 of the Labor Code of the Russian Federation establishes that, with the written consent of the employee, he may be entrusted with performing additional work during the established duration of the working day (shift), along with the work specified in the employment contract
Temporary performance of duties for a vacant position may be assigned to an employee in the following forms:
- combination of professions (positions) - when performing work in another profession or position,
- expansion of service areas, increase in the volume of work - when performing work in the same profession (position).
Closing personnel “holes” (about deputies and acting responsibilities)
The temporary appointment of an employee as acting for a vacant position should be considered a permanent transfer of the employee to another job (if the employee agrees with such a transfer) on the basis of Article 72 of the Labor Code of the Russian Federation. Thus, the fact of voluntary performance of duties for a vacant position transforms the labor relations of the employee and the employer from the first day of such performance of duties. The employee is considered to be appointed to a new position that ceases to be vacant.
It appears that an employee who is transferred to another job by being appointed acting for a vacant position and subsequently approves this transfer is considered to occupy this position from the first day of such transfer.
How to apply for temporary performance of duties
In particular, interim (short for “temporary)” is a form of temporary replacement of one employee with another.
In this case, the acting official is entitled to an additional payment of the difference between the salaries of official and current positions.
After the end of the period of absence of the main employee, the temporary worker returns to his usual job. In turn, IO is a form of combining different positions, when an employee performs duties before the approval of someone else for the vacancy in question.
Based on Art. 72 of the Labor Code of the Russian Federation, an employee can be transferred, including cases of temporary replacement, with the subsequent right to return to his official duties without adjustments in the functions performed and the amount of salary. However, such replacement of employees is possible only with the written consent of the person replacing them.
I.o., or how to properly replace an employee
There is also no prohibition on the temporary transfer of an employee with his consent, including to a vacant position. In accordance with Art. 423 of the Labor Code of the Russian Federation, acts of the former USSR apply to labor relations only to the extent that does not contradict the Labor Code of the Russian Federation. Therefore, the practical significance of the above explanations is practically lost. In practice, in the absence of a director or other employee, it is necessary to assign duties to another employee for a temporarily free (and sometimes vacant) position. This is formalized in two ways: During a temporary transfer, the employee, from the date of transfer until the end of the transfer, works in a new position, and does not simply perform duties.
Registration of the “Signature” details in the absence of an official
From the two fragments given above, the following conclusions can be drawn:
- the draft document can be signed by an employee to whom the powers of the absent official are duly “transferred”, even if the position and surname of the absent manager are already included in the project, the signatory must indicate his data. Nothing is said about what to do with the project in this case, but it is obvious that it will have to be redone: neither strikethroughs nor empty details with a handwritten note will decorate the document; note that the ban on putting a slash or adding the preposition “For” applies not only to federal executive authorities, but is also included in many sectoral instructions for office work, for example, in higher educational institutions, in the bailiff service, in the Federal Migration Service, etc.
Fulfillment of duties for a vacant position: order, deadline
If an employee wishes to combine work responsibilities, he must give written permission to do so. An employee who has agreed to combine, in accordance with Article 151 of the Labor Code, has the right to additional payments.
The amount of additional payment is established by agreement of the parties. According to current regulations, additional payments can be received by a full-time deputy of an employee who is temporarily absent from work. Previously, a provision was applied, according to which the amount of additional payment was determined as the difference between the official salaries of employees, if the replacement employee is not a full-time assistant (deputy) of the absentee. However, the definition of the board The Supreme Court found this rule to violate the labor rights of employees.
Appointment to perform duties for a vacant position
There are no explanations in labor legislation because this form of employee transfer is not provided for at all.
Question: How can we fill out an order correctly? We currently have a vacancy for the position of department head.
We want to assign the duties of the head of a department to an employee from another department. We don’t want to make permanent appointments to a position right away, since we would like to see whether the employee can cope with the responsibilities of the head of a department.
How can we arrange it correctly? The alleged employee is in the civil service, the position of the head of the department is also a civil service. Appointment to this vacant position is possible without competition.
Answer Answer to the question: Registration of performance of duties (temporary replacement)
