Since labor legislation does not have direct answers to the questions posed, you can find different points of view and recommendations, including explanations given in letters of Rostrud dated October 22, 2007 No. 4299-6-1 and dated September 16, 2008 No. 1094-6- 1.
In this article we will look at possible options, as well as the nuances of re-registering an employee from a part-time job to his main place. It is important for the personnel officer to avoid some shortcomings and mistakes, including in entries in work books, so that they do not cause serious problems for the employee.
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?”
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 turn a part-time worker into a main employee
Quite often, part-time work becomes the main one for an employee. Typically, personnel officers carry out such registration either through a transfer or through the dismissal of an employee. The article examines the legality of the above procedures. After reading the article, you will receive answers to the questions: who has the right to make a record of part-time work, is transfer legal in all cases, and is it possible to do without dismissal?
Situation
The employee quits his main place of work, and part-time work becomes his main and only place of work. There is a vacancy in the staffing table of this organization, and the employer is not against hiring this employee, but in this case the question arises of how to restructure the employment relationship in such a way as not to infringe on the interests of the employee and to comply with the law. There are no clear rules in labor legislation on what the personnel service should do in such a situation, and there is also no uniform practice.
There are several most commonly used ways to formalize labor relations from the position of a part-time employee to the position of a permanent employee, which we will consider.
Dismissal
This method consists in terminating the employment contract with the employee on a part-time basis and concluding a new employment agreement (contract) at the main place of work. The grounds for dismissal can be either special or general dismissal rules. The method is quite expensive, but many experts insist on it.
The general procedure for dismissal is the provisions of Art. 37 TK. The basis for termination of the employment contract in this case can be either the agreement of the parties (Article 37 of the Labor Code) or the employee’s own desire (Article 40 of the Labor Code).
The procedure prescribed in Art. will be special in this case. 350 of the Labor Code, which talks about the dismissal of a part-time worker in connection with the hiring of a main employee for his position.
Document:
Labor Code of the Republic of Belarus (hereinafter referred to as the Labor Code).
For reference:
in addition to the grounds provided for by the Labor Code and other legislative acts, an employment contract with a part-time worker may be terminated if an employee is hired for whom this work will be the main one (Article 350 of the Labor Code).
Many employers do not like this method of registration due to the fact that upon dismissal, the part-time worker must be accrued and paid the final payment (Article 77), incl. and compensation for unused labor leave (Article 179 of the Labor Code).
Employees do not like this method for understandable reasons: upon dismissal and then upon rehiring, the working year of such an employee begins from the day of hiring (Article 163 of the Labor Code), and the right to the next vacation will arise only after 6 months of work in the organization (Article 166 of the Labor Code). In addition, when hiring a new employee, the employer has the right to impose a preliminary test on the employee (Article 28 of the Labor Code).
For reference:
The working year for which labor leave is granted is a period of time equal in length to a calendar year, but calculated for each employee from the date of hiring (Article 163 of the Labor Code).
Translation
This method of registering the transition of a part-time worker to the category of main employees is used to avoid all the above-mentioned disadvantages. The basis is Art. 30 of the Labor Code, allowing transfer to another permanent job in the same organization.
However, this method also has pitfalls, namely: different work. Therefore, if an employee is offered a different position or the content of duties in relation to part-time work changes, then the main job to which he is transferred will be considered different. Thus, a part-time worker can become the main employee by transferring him as the main employee to another position.
For reference:
A transfer is recognized as an assignment by an employer to an employee of work in a different profession, specialty, qualification, position (except for a change in the name of the profession, position) compared to those stipulated in the employment contract, as well as an assignment of work from another employer or in another location (with the exception of a business trip).
When transferring to another job with the same employer, an employment contract is concluded with the employee in compliance with the requirements of Art. 18 and 19 Labor Code (Article 30 Labor Code).
Note that the transfer requires the written consent of the employee, having received it, for example, in the form of an application, the employer issues an order for the transfer and enters into a new employment contract, but as with the main employee. An entry about such a transfer is made in the work book.
In this case, the employer does not have the obligation to pay compensation for unused vacations. Accordingly, the employee’s length of service, which gives him the right to leave, does not cease.
Let's look at the problems that arise during translation.
Was there a translation?!
Firstly, there is no official definition of the term “other work” in the law. As a rule, this term refers to another position. This means that if a part-time worker becomes the main employee, but continues to perform labor functions in the same position by agreement with the employer, no other work arises. Only one condition of the employment contract changes - part-time work disappears.
Secondly, the employee’s work book may not contain a record of being hired as a part-time worker. After all, a record of part-time work is made at the request of the employee at the place of his main job. Moreover, the employer of an external part-time worker does not have the right to make such an entry. And in the absence of information about part-time work, it is impossible to make a record of the transfer. This problem can be avoided if the employee, before transferring to a new place of work, asks the “main” employer to make an entry in the work book about part-time work.
If there is no entry in the work book about part-time work, then the transfer procedure is not suitable, since no change in the labor function, and especially the structural unit of the employee, does not occur. In this case, it is necessary to act through dismissal.
Can a part-time contract be automatically transformed into a contract for the main place of work?
As a rule, if a part-time worker asks to re-register him at his main place of work, this means that he quit his other main job and has a work book in his hands. A conflict arises: the employee remains a part-time worker for now and does not have a main place of work. Quite often in such a situation the question arises: is it possible to automatically transform a part-time worker into a main employee?
Let us answer unequivocally that there can be no talk of any automatic transformation of a part-time contract into a main employment contract. Firstly, an external part-time worker is not at all obliged to inform the employer about his dismissal from his main job. Secondly, changes to the terms of the employment contract determined by the parties are allowed only by agreement of the parties (Article 19 of the Labor Code).
We formalize changes to the employment contract without dismissal
Analysis of labor law norms does not give a clear answer as to what part-time work is - a separate type of contract or one of its conditions. On the one hand, part-time work is not mentioned in the list of conditions mandatory for inclusion in an employment contract, enshrined in Art. 19 TK. On the other hand, the condition of part-time work is a mandatory condition of the employment contract that determines the nature of the work, since this is directly established by part two of Art. 343 TK.
In our opinion, this is still one of the conditions of the employment contract. Labor legislation, namely Art. 19 of the Labor Code allows changes to be made to the employment contract with the consent of both parties and only in writing, so it is possible to propose a procedure for transferring a part-time worker to the main employee by drawing up an additional agreement to the employment contract on changing working conditions. In this case, it is necessary to conclude an additional agreement to the employment contract, in which its conditions will be changed in terms of the employee’s status, that is, it is indicated that the work that he previously performed on a part-time basis is now his main one.
The specified re-registration of labor relations must be necessarily confirmed by the relevant order (instruction) of the employer, the content of which indicates that the employee who previously worked part-time receives the status of the main employee.
Entry in the work book
The difficulty lies in the fact that it is completely unclear what specific entry should be made in the employee’s work book, because nothing is said about this either in the Labor Code or in the Instructions on maintaining work records. However, the corresponding entry must be made in the employee’s work book, especially since the provision of any benefits, guarantees and compensation to the employee often depends on the length of working hours.
Therefore, on the basis of an additional agreement to the employment contract and the corresponding order (instruction) of the employer, it is necessary to make an entry containing information that his part-time work has been terminated in the employee’s work book, where a record of being hired for part-time work has already been made. but continues as an essential worker.
This entry might be something like this:
«Part-time work has been discontinued; he continues to work as a main employee.”
Thus, a part-time employee becomes a main employee in the same position. Please note: since the employment contract is not terminated, the employee retains his length of service (this means length of service in the industry, if a requirement for continuity is presented to him) and the right to the next labor leave. Accordingly, pay the final payment, incl. and compensation for unused vacation is also not necessary.
Document:
Instructions on the procedure for maintaining labor records of employees, approved by Resolution of the Ministry of Labor of the Republic of Belarus dated 03/09/1998 No. 30 (hereinafter referred to as the Instructions on maintaining labor records).
Natalia Shcherbakova , lawyer
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.
Transition order
Experts advise first of all to ask the part-time worker to write an application requesting inclusion in the main staff, thus recording his agreement with the changes in the terms of the employment contract. After the manager’s visa, the consent becomes bilateral in nature (Article 72 of the Labor Code of the Russian Federation).
Question: How to register an employee for the main place of work if he previously worked in the organization as an external part-time worker? Will it be a transfer or hiring as a new employee? View answer
The next step is the publication of an order (instruction) from management on changes in the status of the external part-time worker. The document must indicate that the work of the external part-time worker will become the main one from the named date.
Then an additional agreement on changing the contractual terms is drawn up and signed. Any employment contract, regardless of the type of document, can be amended (letter of Rostrud 4413-6 dated 10/31/07), therefore, there are no restrictions regarding the contract concluded with an external part-time worker. In the additional agreement, in addition to the mandatory indication of the nature of the work: main, changes to the work schedule can also be made if they occur.
Advice: before starting registration, check whether the employee quit his previous main job and whether there is such an entry in the work book (letter of the labor inspectorate No. 4365-6-1 dated 10/26/07).
An entry in the work book about the transition to the main place of work from a part-time job is made by a HR specialist. He may encounter two situations:
- A record of part-time employment at the place of the previous main job was made in the work book. This is the responsibility of the “main” employer if the employee has expressed such a desire and provided documents confirming this fact (Regulation No. 225, paragraph 20).
- The work book contains no information about part-time work.
In the first case, the personnel officer needs to record the fact that the citizen’s work in the position has become the main one since a certain date. Rostrud specialists suggest using phrases like: “Part-time work (on a part-time basis) has been stopped, continues to work as the main employee.”
If there is no record from the previous job, it can be added during the transfer (letter of the labor inspectorate No. 4299-6-1 dated 10/22/07). The record must contain information about the name of the organization in full and abbreviated form, about the employee’s hiring from the designated date, and about the period of the citizen’s work as an external part-time worker. Be sure to indicate the dates of relevant events and links to details of orders for the organization.
The legislator has not determined the mandatory wording that must be contained in the work book. This gives rise to different interpretations, and often disputes between local personnel service officials.
Results and conclusions
Registration of a former external part-time worker for the main position is possible according to the scheme “dismissal from part-time workers - admission to the main ones”, however, this path may be disadvantageous to the parties to the contract.
It's easier to make the transition without being fired. For such a transfer to be legal, it is necessary to sign an additional agreement (written) between the former part-time employee and management, containing updates to the existing employment contract. The agreement is concluded on the basis of an employee’s application, with the issuance of a personnel order. The work book contains information about the end of part-time work and the continuation of the employee’s activities as the main one. If information about additional work was not previously entered into the part-time job, a general entry is made about the employment from a certain date and the period during which the citizen worked as a part-time job is recorded.
Legislative acts do not contain mandatory wording for such records.
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.”
Rules for making an entry when applying for a job
To enter information, special instructions have been developed, some of which are prescribed in the Labor Code. According to these rules, information about admission includes mandatory items that are indicated in the columns of the book:
- serial number;
- date of commencement of cooperation under the agreement;
- full and short legal name of the company;
- department and position of the employee;
- the basis for entry is an admission order, in which case its date and number are indicated.
ATTENTION! It does not matter what type of contract is concluded - fixed-term or permanent. This is not reflected in the admission information in any way. But the type of employment - permanent or part-time - must be indicated, since the book cannot contain several entries about the current main employment.
When entering information about admission, you should be careful, since a mistake in the future may cancel this period of work. If errors or blots are made, corrections should be made correctly in accordance with the developed recommendations for filling out these documents.
External part-time job
Information about external part-time work, i.e. additional work in another organization is entered into the book according to the general rules: serial number, name of the organization and position. The only difference is the note that the employee is a part-time employee.
Internal part-time job
The question of making an entry in the work book about internal part-time work is more relevant, because a person performs responsibilities in several positions within one company.
According to the Labor Code, an employee needs to submit an application to enter information to a personnel specialist. The data is entered as standard, only the company name is not indicated. It is enough to enter the department and position, noting that this activity is a combination. In the appropriate line, enter information about the order, its date and number.
Example entry
Samples of part-time entries in the work book:
internal part-time job
external part-time job
From the example it is clear that the information is practically no different from the usual one, the only difference is the note about the combination and the absence of information about dismissal between the admission records.
Each entry in the work book is valuable material reflecting a person’s professional experience and length of service. Therefore, you should not rush to enter additional information if it does not provide significant information.
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.
Dismissal and rehiring
First, dismiss the part-time employee from the position and hire him to a new position. That is, in fact, the concluded contract with the employee is terminated and a new one is concluded. The reason for dismissal in this case is the general procedures that are outlined in the legislation. Most often, this is dismissal by agreement of the parties or at one’s own request.
There is also a special procedure noted in the Labor Code, which stipulates the dismissal of a part-time employee and his hiring to a permanent position. In case of such dismissal, the part-time employee must be paid compensation for those vacation days that the employee did not take advantage of.
With this option, there are not very pleasant moments for the employee. They are that the employer can set a probationary period upon hiring, and vacation will be available 6 months after signing the new contract. Pension rights will not be affected and length of service will not be interrupted. The date of dismissal and acceptance to a new position will coincide.
