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Publication date: 01.05.2024
Legal analysis of the situation, Legal opinion, Writing a lawyer's request, lawyer's request, analysis of the situation by a lawyer, analysis of the situation by a lawyer, legal opinion, lawyer's opinion, lawyer's opinion.
regarding the procedure related to changes in the structure
higher educational institution
(relocation, lack of competition with heads of departments)
All scientific and pedagogical employees of the departments specified in clause 2 of this order, except for the heads of departments, are transferred with their written consent on the basis of p.ch. 2 Art. 32 of the Labor Code of Ukraine
The employee's consent is not required.
Changes are not made to the work book, if the previous entry does not contain the name of the old structural unit.
The legal analysis of the situation includes the analysis of Clause 2 of Art. 31 of the Labor Code of Ukraine is not considered a transfer to another job and does not require the employee’s consent to move him to another workplace, in another structural unit in the same area, in the same enterprise, institution, organization, assignment to work on another mechanism or unit within the scope of the specialty, qualification or position specified in the employment contract. The owner or the body authorized by him does not have the right to transfer the employee to a job that is contraindicated for him due to his health condition.
In accordance with Part 2, Clause 31 of the Resolution of the Plenum of the Supreme Court of Ukraine No. 9 dated November 6, 1992 "On the practice of consideration of labor disputes by courts", transferring him from the same enterprise (institution, organization) to another is not considered a transfer that requires the consent of the employee workplace, to another structural subdivision on the territory of the enterprise within the same area, assignment of work on another mechanism or unit while continuing to work in the same specialty, qualification or position and with the same essential working conditions.However, the movement cannot be without motive, not determined by the interests of production.
Lawyer's conclusion: Transfer differs from relocation in that in case of transfer, the employee is assigned either a different job, or the same one, but at a different enterprise, or work at the same enterprise, but in a different location. At the same time, when moving, the employee continues to perform the same work, at the same enterprise and in the same area, but at a different workplace, labor tool or another department.
That is, in relation to all employees, except the heads of departments, we do not warn, we do not poison consent from them or from the trade union, we do not make entries in the labor book, if the previous entry did not contain which faculty the department where they work belonged to. We are only familiarizing you with this order
Heads of departments, if they are transferred from the department of one faculty to the same department of the institute, the competition is not held.
They also move.
The recommendations do not contain this, and our Regulation on competitive selection does not contain it either.
However, by analogy with clause 2.12. Regulations of OSAU on competitive selection When dividing a department, its head may be appointed to the position of head of one of the newly created departments by order of the rector of the University. In this case, the position of the head of another department is replaced by competition. The performance of the duties of the head of the department, where this position is vacant, until the competition is held, is entrusted to one of the leading teachers of the department by order of the rector of the University, if there was one department and two were created, the previous one remains to head one of the new ones.
That is, the head of the department in this case (the old one) is not dismissed and does not hold a competition.
Specialists at the Main Department of State Labor in the Odesa region confirmed that if the working conditions (s/p, etc.) do not change, but only the name of the structure that includes the department headed by the head of the department is changed, this is not a transfer, but is a transfer and holding a competition preceded by dismissal is not required.
The ruling of the Supreme Court of Ukraine dated November 1, 2017 in case No. 6-1471цс17 of the Ukrainian Armed Forces clarified that the provision of Article 32 of the Labor Code of Ukraine interprets the concept of "relocation" within the scope of a specialty, qualification or position stipulated by an employment contract. Transfer can be carried out only on the condition that none of the essential conditions of the employee's employment contract are changed.
If the transfer to another job is related to the change of the employee's labor functions, place of work (locality), then the transfer to another structural unit involves the preservation of the place of work and labor functions stipulated by the labor contract.
The ASU noted that in order to protect the interests of employees when they are transferred to another workplace, the legislation provides for the following legal guarantees: the transfer of an employee is prohibited if it is contraindicated for him due to his state of health (Article 32 of the Labor Code of Ukraine); if as a result of the relocation of the employee, the earnings are reduced for reasons beyond his control, an additional payment is made to the previous average earnings within two months from the date of the relocation (part two of Article 114 of the Labor Code of Ukraine).Analysis of the situation by a lawyer: If the transfer was made at the same enterprise to another workplace, to another structural unit, in the same area and within the relevant position, i.e. there was only a change of workplace (place of direct performance of work), structural unit in the same area and none of the essential conditions of the employment contract have changed, the Supreme Administrative Court concluded that this is precisely a transfer, and not a transfer to another structural unit (decision dated November 1, 2017 in case No. 6-1471cs17).
In the Ministry of Education and Science, the head of the department said that if the transfer of heads is carried out within the scope of their contract, there is no need to hold a competition.
