The irregular working day regime is often used by employers to regulate the so-called “overwork”, but at the same time it causes a lot of discussion.

Employers, as a rule, are confident that irregular working hours are not limited in time. Of course, this is a very common mistake associated with a lack of understanding of the norms of work and rest established by law and at the same time an unreasonable desire to save money on payments from the organization's labor fund. That is, the establishment of irregular working hours is a kind of optimization of personnel costs. Of course, this is a convenient position, which is approved by the financial controllers, but it does not always comply with the norms of labor legislation.

Meanwhile, an attempt was made last year to limit the number of hours of "processing" to 120 hours per year, but at the moment the relevant law is still pending. Moreover, the State Duma Committee on Federal Structure and Local Self-Government Issues recommended the lower house of parliament to reject this bill.

Let's try to figure out how fair is the interpretation of the norms of the law on irregular working hours in favor of the employer in relation to commercial organizations, in which the temptation of abuse of the right by the employer most often arises.

HOW LONG IS AN IRREGULAR WORKING DAY?

As we know, the law defines the norms of work and rest, on the basis of which the work schedule is established for the employees. Working conditions with irregular working hours are still an employer's assessment category. And he often understands an irregular day as having a beginning but not having an end. Of course, this approach to the interpretation of the law is beneficial to the employer, but, as a rule, it is disadvantageous to the employee. Does this mean that the truth is on the employer's side?

In our country, the norm of working time is 40 hours per week (Article 91 of the Labor Code of the Russian Federation), that is, with a five-day working week, one day accounts for 8 hours of working time. At the same time, there are cases when this norm can be exceeded without violating the law. Such cases, as we know, include overtime work and irregular working hours.

For overtime work, there is a clear limitation in the law - no more than 120 hours per year. Moreover, it is prohibited to involve an employee in overtime work for more than 4 hours for two days in a row. This is due to the fact that during processing, the balance between work and rest is disturbed, which ultimately leads to ineffective work and unsatisfactory performance results.

Unlike overtime work, there are no such restrictions with regard to irregular working hours, that is, neither the restrictions established by law for attracting overtime work, nor the guarantees and compensation associated with such work, do not apply to the work of workers with irregular working hours.

Let's try to figure out why the legislator still distinguishes irregular working hours as a separate category of over-standard work, in a kind of special working time regime. According to Art. 97 of the Labor Code of the Russian Federation, work in the mode of irregular working hours is work outside the established duration of working hours. That is, we are talking about extra-standard, additional work that goes beyond the working day. The legislator in Art. 101 of the Labor Code of the Russian Federation made a reservation about the episodic nature of involvement in such work, but this did not solve the problem with the unfair use of labor. At present, there are no criteria or signs of episodicity in regulatory legal acts. And the compensation that the employee receives in return for his excess labor costs is sometimes clearly lower than these labor costs.

We especially note that the introduction of irregular working hours for employees does not mean that they are not subject to the rules determining the start and end times of work, the procedure for recording working hours, etc. 2 These employees are exempted from work on weekly rest days on a general basis and holidays. Therefore, it is possible to attract employees who have an irregular working day to work on their weekends and non-working holidays only with the application of the provisions of Art. 113 and 153 of the Labor Code of the Russian Federation.

Who can set an irregular working day?

The list of positions of employees with irregular working hours is not determined by regulatory legal acts, therefore, as a rule, it is established in a local regulatory act of the employer, for example, the rules of internal work schedule or the regulation on the accounting of working hours.

An exception is the establishment of irregular working hours for drivers. So, according to Part 2 of Art. 329 of the Labor Code of the Russian Federation, features of the working time and rest time, working conditions of certain categories of workers whose work is directly related to movement Vehicle, are established by the Ministry of Transport of Russia.

In accordance with the Regulation on the specifics of the working hours and rest hours of car drivers, irregular working hours can be established:

Drivers of cars (except for taxi cars);

Drivers of vehicles for expeditions and survey parties engaged in geological exploration, topographic and geodetic and survey work in the field.

The number and duration of work shifts according to work (shift) schedules with irregular working hours for drivers are established based on the normal duration of the working week, and days of weekly rest are provided on a general basis.

It should be noted that the irregular working day has interesting features:

It can be set for a specific position, and not for a structural unit as a whole;

Engaging in work in excess of the standard time should be due to production needs;

The types of work performed in excess of the standard time should not differ from the usual work performed under an employment contract, job description or work instruction.

HOW TO SET AN IRREGULAR WORKING DAY?

The condition of working in the regime of irregular working hours must be fixed in the employment contract with the employee. Here is an approximate wording:

2.1. An employee is assigned an irregular working day.
2.2. The annual additional paid leave for irregular working hours of the employee is six calendar days.

The local normative act, which establishes a list of positions with irregular working hours, as a rule, are the rules of the internal labor schedule (see example).

In order for an employee who has been assigned an irregular working day to engage in excess work, a written or oral order from the employer or his own understanding of the need for this is sufficient. By the way, in order to attract an employee to work overtime, the employer must comply with a number of conditions, including obtaining the employee's consent.

It should be remembered that the employer has the right to attract employees with irregular working hours to work outside of normal working hours only to perform work stipulated by the employment contract, and cannot entrust other work. That is, if an employee works as a clerk, he cannot be involved in performing the work of a driver or secretary (for this, it will already be necessary to conclude an employment contract for part-time work).

Important nuances

1. An employee who has been assigned an irregular working day cannot refuse to work outside the working day (shift), if necessary. The employer may regard such a refusal as non-performance of labor duties and bring the employee to disciplinary responsibility.

2. Irregular working hours - this is an occasional attraction to excess work. That is, in order to maintain the balance of working time and rest time, you can work in excess of the norm from time to time, and not every day.

3. Performing work in excess of the standard does not mean that you can perform any work that is not named in the job description. The employee's responsibilities no longer become, only the time spent on work increases.

4. An undoubted advantage for an employee working in irregular working hours is the establishment of an additional paid leave of at least three days. This vacation can be added to the annual basic paid vacation or replaced with monetary compensation (at the request of the employee).

5. If you need to establish irregular working hours for a specific employee, you must follow the procedure documenting such a regime.

6. The established regime of irregular working hours allows the employee to be detained at work without registration of overtime work and, accordingly, its payment at increased rates.

7. The employer does not need to keep records of overtime and monitor their limits.

8. Irregular working day does not apply to work on weekends and holidays, only to working days for a particular employee.

9. If the employer abuses the right to be recruited to work in conditions of irregular working hours, the employee may file a complaint with labor inspection or to the court (Articles 352, 356, 391 of the Labor Code of the Russian Federation). As a result, systematic overtime can be recognized as overtime and oblige the employer to pay appropriate compensation. In addition, for violation of the norms labor law the employer faces administrative liability under Art. 5.27 of the RF Code of administrative offenses.

HOW TO RELAX IN CONDITIONS OF IRREGULAR WORKING DAYS?

As we have already noted, overtime under conditions of irregular working hours are compensated by the provision of additional days for the vacation. The duration of this vacation cannot be less than three calendar days, if a longer duration is not established in the local regulations of the organization (Articles 116, 119 of the Labor Code of the Russian Federation; clause 3 of the Rules for granting annual additional paid leave to employees with irregular working hours in federal state institutions).

Counting rules seniority required to obtain additional paid leave for irregular working hours are not established in labor legislation. Traditionally, such length of service is determined by analogy with the length of service for the main paid vacation, that is, it includes:

Actual work time;

The time when the employee did not actually work, but his place of work (position) was retained in accordance with regulatory legal acts, collective agreements, agreements, local regulations, labor contract;

The time of unpaid leave provided at the request of the employee, not exceeding 14 calendar days during the working year.

Accordingly, it is not included in this experience:

The time of absence of an employee at work without good reason, including as a result of his suspension from work in the cases provided for by Art. 76 of the Labor Code of the Russian Federation;

The time of parental leave until the child reaches the legal age.

An important point is the possibility of replacing additional leave for an irregular working day with monetary compensation at the request of an employee with restrictions in relation to specific categories workers (Article 126 of the Labor Code of the Russian Federation).

Additional paid leave for irregular working hours or financial compensation are provided either on the basis of a vacation schedule or upon a written application from an employee. The application is drawn up in any form (unless, of course, its form is approved by the local regulatory act of the organization) and is submitted to the personnel department in the manner established by the organization.

The text of the application for additional leave may be as follows:

Please provide me with an additional annual paid leave for irregular working days from August 1, 2018 for three calendar days.

If the employee decides to receive monetary compensation instead of additional leave, he can draw up a statement with the following content:

I ask you to replace me with cash compensation for 6 calendar days of additional annual paid leave for irregular working hours.

In conclusion, I would like to say that in terms of establishing irregular working hours, a fairly free approach to the interpretation of the law has developed. The situation can only be changed by changing the rule of law. The bill 1 mentioned at the beginning of the article is an attempt to solve the problem of abnormal use of workers' labor without any accounting and, accordingly, payment. But he only proposes to limit the time by setting a limit of processing within a year.

The author of this article considers it expedient to provide for categories of workers who can be introduced to irregular working hours, and considers it reasonable to establish a clear concept of irregular working hours, defining the features that distinguish them from overtime work, since, as we know, employers usually interpret all doubts in their favor.

In addition, according to the author, it would be superfluous to establish a balance between the labor costs of an employee working in conditions of irregular working hours, and the additional leave provided to him, establishing a proportional ratio of the worked overtime and compensation for it.

For this, of course, it is necessary to take into account the work of the employee in the prescribed manner and document it with an order and a mark in the time sheet.

Bill No. 134447-7 "On Amendments to Articles 101 and 119 of the Labor Code Russian Federation in terms of limiting the use of irregular working hours ".

Irregular working hours in an employment contract - sample You will find such a document below - it can be reflected in the case of its introduction for hired employees. It is obligatory to enter information about the use of an irregular regime in an employment contract or by law, and an alternative procedure for its introduction, you will learn by reading the article to the end.

What is an irregular day?

The term "irregular day" of the Labor Code of the Russian Federation means such a work regime when an employee can sometimes be involved in work at a time that goes beyond the established standards, that is, after the end of the day or shift according to the schedule or before they start. At the same time, speaking about irregular day, many believe that under such working conditions, no standards in relation to the duration of working hours at all apply, therefore, the employee can be required to overwork constantly.

In fact, this is far from the case: Art. 101 of the Labor Code of the Russian Federation indicates that this mode of operation can be used occasionally and only by order of the management in each specific case. In this case, the need to work outside the norm should be motivated by a specific need that has arisen. As confirmation of this position, one can consider the letter of Rostrud dated 07.06.2008 No. 1316-6-1, which explicitly states that work in excess of the established norm should not be systematic.

At the same time, an irregular day should not be confused with overtime hours. So, Art. 99 of the Labor Code of the Russian Federation establishes a strict limitation: it is not allowed to hire an employee overtime for more than 4 hours in 2 days, and the total amount of overtime cannot exceed 120 hours in calendar year... There are no such restrictions for irregular days.

In addition, for overtime work, there is a clear amount of payment of Art. 152 of the Labor Code of the Russian Federation:

• not less than 1.5 average hourly pay - for the first 2 hours;
• at least 2 - for all subsequent ones.

As for the irregular day, there is no additional payment for processing hours; the law here establishes other compensations.

What document is required when establishing an irregular day - add. irregular working day agreement or new agreement?

First of all, you need to determine with which document the irregular day for the employee is drawn up. According to Art. 101 of the Labor Code of the Russian Federation, such a mode of operation is permissible if it is established in the following documents:

• collective agreement;
• agreement;
• local act adopted after consultation with the local trade union or other representative body of the workforce.

However, these acts establish only a list of positions for which an irregular day can be used at the enterprise, while the working conditions of a particular employee must be fixed in his employment contract. Should, in this case, the condition on irregular working hours be included in the text of the contract itself or is it permissible to separately conclude supplementary agreement, provided for by Art. 72 of the Labor Code of the Russian Federation?

The answer to this question can be found in Art. 57 of the Labor Code of the Russian Federation. It establishes what conditions are subject to mandatory inclusion in the contract - and the working hours are clearly included in the list of these conditions. However, at the same time, the article indicates that if one of these conditions is not included in the contract, then because of this it does not lose its force. In this case, the employee and the employer can sign an additional document, which will be an annex to the employment contract. An additional agreement is also allowed as such a document. Thus, if initially the labor contract did not include the conditions that the employee's working day is irregular, there is no need to redo the entire contract because of this - it is enough to sign an additional agreement to it.

However, it should be noted that if an irregular day is introduced for an already working employee on the initiative of the boss, then a change in working conditions, according to Art. 74 of the Labor Code of the Russian Federation, it should be:

• motivated by organizational or technological changes in the enterprise;
• made after notifying the employee in writing, signed at least 2 months before the entry into force of the changes.

If the employee agrees to change the conditions, then an additional agreement is signed; if there is no consent, the contract may be terminated in accordance with the established procedure.

IMPORTANT! From January 1, 2017, the decree of the Government of the Russian Federation from27.08.2016 № 858 ... This document approved standard form an employment contract that must be used in micro-enterprises - organizations where no more than 15 people are employed. Ifirregular work contract is with an employee of such an enterprise, then the conditions must necessarily be reflected in the contract, where a special column is provided to describe the working hours.

Employee compensation

By concluding an employment contract, which provides for the possibility of working outside the standard length of the day, the employer can determine in this document additional compensation to the employee for the relevant working conditions. However, the law does not provide for the obligation to pay workers any additional payments.

But the employment contract must provide for additional leave, and its duration, according to Art. 119 of the Labor Code of the Russian Federation, there must be at least 3 calendar days added to the regular leave provided for this category of workers. With regard to persons employed in the civil service in state bodies, this norm is additionally confirmed by paragraph 6 of Art. 46 of the Law of 27.07.2004 No. 79-FZ.

In this case, the following points must be taken into account:

1. Right to extra days an employee has a vacation even if he was not actually involved in work outside the statutory time frame during the year.
2. The time worked outside the standard duration must be taken into account by the employer (this is required by Article 91 of the Labor Code of the Russian Federation). Since the rule on entering such time in the time sheet does not apply to irregular working days, it is recorded in another way, for example, by compiling a separate journal.

Contents of the sample contract

Download the employment contract form

When registering irregular working hours in the employment contract as a sample such a document can also serve as a standard contract - you just need to add clauses on the establishment of irregular days and the provision of additional paid leave. Usually they are included in the section of the contract describing the organization of work and rest of the employee.

It may look like this in the text of the agreement:

« 4.1. An irregular working day regime is introduced for the employee.

4.3. The employee, in accordance with the law, is provided with an annual basic paid leave of 28 calendar days. In addition, as compensation for work related to the irregular day regime, he is additionally provided with annual paid leave of 3 calendar days.».

The numbers in the given example are set conditionally: usually in contracts, the section on the mode of work and rest goes under No. 4, but this is only an established practice, and not a mandatory norm. And the wording itself may be different (moreover, both clauses can be merged into one) - it is only required that they clearly indicate both the irregular nature of working hours and the fact of granting additional leave.

A sample employment contract containing a condition on irregular working days can be downloaded from our website. It should be borne in mind that the duration of the leave additionally provided to such employees may be more than 3 days - everything here remains at the discretion of the employer. The standards apply only to employees of government agencies and institutions.

In the practice of using irregular working hours, there are a number of persistent misconceptions that often lead to disputes between managers and subordinates and complaints from inspection bodies. We will debunk them, calling for help from the law and the established judicial practice. Let's pay attention to the rules of drawing up documents in disputable situations.

Mistake 1: if the employee is "not overworked", he is not granted a permit

When hiring employees, some employers "just in case" prescribe in labor contracts with all without exception the condition of irregular working hours. Their calculation is understandable: all of a sudden you will have to detain an employee beyond the usual working hours - with the wording about irregular working hours in the documents, he, as they say, will not get out and he will not be able to demand "overtime" for overtime. That is how it is, only ... Managers usually assume that if a particular employee has not actually worked over the course of a year, then there is nothing for him to provide additional leave for. And they are wrong. Including regarding their benefits from the uncontrolled establishment of irregularities.

First, non-normalization is a concept derived from normalization. Those. on general rule employees of the enterprise should have normal working hours, and irregular working hours can only be for certain positions (see article 101 of the Labor Code of the Russian Federation).

Moreover, do not forget that according to the same Labor Code of the Russian Federation, the employer is responsible for ensuring labor protection and for safe conditions labor of each employee in the workplace. Therefore, the more time an employee is uncontrollably outside the established working hours at work, the more likely the employer will have to answer if "something happens" to the employee. Thus, many large industrial enterprises(and even more - Western companies) are very sensitive to the unplanned overtime of their employees, especially if the latter have a tendency to go about their own, and not production affairs at work outside work time... And the point, as you've probably figured out by now, isn't just about insuring yourself against demands for overtime pay. Therefore, in practice, along with a clear fixation of the establishment of irregular working hours for individual employees of the company, it is advisable to consolidate the obligation of employees with normal working hours to leave their jobs immediately after the end of the working day. For a sample of such an order, see Example 1, similar provisions can be fixed directly in the Internal Labor Regulations. The choice of the method of establishing these provisions in a separate order will draw the attention of workers to the observance of the labor regime in conditions when the Internal Labor Regulations are a voluminous document, which, even when familiarized with a personal signature, few people read in full. Such an order allows the head of the organization to draw the attention of the heads of departments to the inadmissibility of uncontrolled and unreasonable processing and reduces his personal responsibility for accidents and similar incidents at work outside of working hours.

Example 1... Order on the work schedule with a separate provision stating that employees should leave their workplaces at the end of working hours

Limited Liability Company "TRANSMAG"

Order

05.09.2013

Tomsk

On observance of the labor regime

In order to ensure compliance with the regime of work and rest in the organization, guided byArt. 91, 97-105 , 212 Of the Labor Code of the Russian Federation, the Internal Labor Regulations of TRANSMAG LLC, approved by order of TRANSMAG LLC dated 09/05/2013 N 018 (hereinafter - PVTR),

I order:

1. Head of the Human Resources Department Semenova E.Yu. as a whole for the organization, heads of other structural divisions - in relation to subordinate employees:

- ensure that employees with normal working hours comply with the requirements on the inadmissibility of both being late for work and being at the workplace outside the established working hours, except for the cases provided for in clauses 3.6-3.9 of the PVTP;

- when attracting employees to work outside the established working hours (irregular working hours, overtime work), ensure compliance with the requirementslabor legislationand legislation on labor protection, safety and industrial sanitation;

- to ensure the accounting of the time actually worked by each employee in the manner established by the PTP;

- to provide an analysis of the reasons for work outside the established duration of working hours, if necessary - timely revisions of labor standards, the List of positions of employees with irregular working hours, which is Appendix 2 to the PVTP, the duration of additional leaves provided to employees in appropriate cases;

- monitor compliance with other provisions of the PVTP.

2. To the head of the personnel department Arsenyeva M.D. ensure the inclusion in the job descriptions of the heads of structural units of the authority to issue orders to attract subordinate employees to work outside the established working hours for them (irregular working hours, overtime work). The term of execution is 09/15/2013.

3. Head of the Secretariat Leonova V.K. arrange for bringing this order to the attention of all employees of the organization under a personal signature. The deadline is 04/09/2013.

4. Assign control over the execution of this order to the deputy general director on personnel policy Samokhina P.A.

General Director V.I. Odintsov Odintsov

Secondly, the provision of additional leave for an irregular working day is associated not with the fact of being attracted to "outrageous" work, but with the establishment of an irregular working day regime for the employee as such (i.e. with the potential to attract an employee to work in excess of the established duration of work ) - this follows from a systematic analysis of the norms of Art. 101, part 1 of Art. 119 of the Labor Code of the Russian Federation. Therefore, to provide leave, it is enough to have an employee's position in the list of positions with irregular working hours and the conditions for this regime in the employment contract.

The author of the article happened to encounter attempts by personnel officers to circumvent this rule by fixing the following condition in the employment contract: in the absence of actual overtime, the employee agrees that he will be left without additional leave (see Example 2 about which wording cannot be included in the employment contract). Do not play such games: at the first complaint of an employee to the competent authorities (labor inspectorate, prosecutor's office) or going to court, as well as if the inspectors come on your own initiative, you will be violating labor laws and no wording in the contract will help you, because they illegal, and therefore not applicable. The same way similar provisions should not be included in local regulations (Internal Labor Regulations, Regulations on Holidays, etc.).

Example 2. Fragment of an employment contract with an illegal condition on deprivation of an employee of the right to additional leave in the absence of actual overtime within the framework of irregular working hours

2. Working hours and working hours.<…>

2.2. The employee may, by order of the Employer, if necessary, occasionally be involved in the performance of his labor function outside the established working hours for him, while if the Employer does not use during the working year his right to attract the Employee to work outside the established working hours for him, then the Employee for the given working year additional leave provided for in clause 2.3 of this employment contract , is not provided.

Fragment of the document. Part 2 of Art. 9 of the Labor Code of the Russian Federation

Some normative legal acts expressly state that the number of vacation days is not related to the duration of the actual "outrageous" work, for example:

Fragment of the document. Clause 4 of the Rules for the provision of annual additional paid leave to employees with irregular working hours in organizations funded from the federal budget, approved. Resolution of the Government of the Russian Federation of 11.12.2002 N 884 (extract)

In fairness, we note that there are other approaches to solving this issue:

Fragment of the document. Part 5 of Article 13 of the Law of the Moscow Region of 24.07.2007 N 137 / 2007-03 "On municipal service in the Moscow region "(extract)

In this document, the duration of the vacation is nevertheless set in dependence on the time of work in excess of the established duration. Although it does not explicitly say that in the absence of overtime, leave is not provided at all, the approach outlined is puzzling. The explanation is usually given as follows. By virtue of Part 7 of Art. 11 of the Labor Code of the Russian Federation, labor legislation applies to state and municipal employees with the features provided for by special laws on state and municipal service, including those adopted at the regional level. Therefore, as a justification for the above provision of the law, they say that in relation to municipal employees, the named law has priority over the Labor Code of the Russian Federation. If from a formal point of view this is somehow explained, then from the standpoint of unified approaches to labor regulation in the Russian Federation, it is difficult to agree with such a rule.

Let's summarize. If we are not talking about state or municipal employees, for whom special conditions for granting leave may be established in certain regulatory legal acts, then “ordinary” workers are granted additional leave for an irregular working day in the number of calendar days prescribed in local regulatory acts and / or an employment contract, regardless of the availability and / or duration of actual processing. Anything else will indicate a violation of labor legislation by the employer, no matter what justification he may choose for this.

Mistake 2: the work schedule is changed at the discretion of the employer without the consent of the employee

Setting first for a large number positions of irregular working hours, employers subsequently often find out that in fact there is no need to involve all these employees in "outrageous" work, and additional leave, as we have already found out, must be granted annually. And then the temptation is great, by its strong-willed decision (order), to amend the list of positions of workers with irregular working hours and exclude a number of positions from it, and then stop granting additional vacations. Such actions in most cases can be qualified as a violation of labor laws and entail administrative liability under Article 5.27 of the RF Code of Administrative Violations, not to mention the fact that additional leave will have to be provided in full (if the employee has already quit by the time of debriefing) , then it will be necessary to pay him monetary compensation for unused vacation together with interest for the delay of this payment). Let's explain why.

According to Part 2 of Art. 57 of the Labor Code of the Russian Federation, irregular working hours should be reflected in the employment contract with each employee who is hired with the establishment of such a regime. This means that changing the regime (from irregular working hours to normal working hours) will require an amendment to the employment contract. The change must be made in writing, while the document must contain the signatures of both the authorized representative of the employer and the employee himself.

Fragment of the document ... Article 72 "Changes to the terms of the employment contract determined by the parties" of the Labor Code of the Russian Federation

If the document is signed by both parties labor relations no, then unilaterally, according to the general rule, the work mode cannot be changed, Actions to exclude a specific position from the list of positions of employees with irregular working hours will be valid only for newly recruited persons who, upon registration for work, will immediately have a normal working time set.

Therefore, it is important to sign an amendment to the employment contract with the employee. How to draw up such a document, we show in Example 3. In addition, before signing it, it is necessary to familiarize the employee with a personal signature with all documents that are related to the change in the work schedule (including re-acquainting the employee with the Internal Labor Regulations in force for this employer, as well as with the amended List of positions of employees with irregular working hours, if this list is not part of Of the Internal Labor Regulations). The fact of acquaintance can be verified:

- the signature of the employee in the amendment to the employment contract (we show how this can be done in Example 3 - see paragraph 4 of the document) and / or

- in another way adopted by the organization to bring to the attention of employees the information contained in the collective agreement, local regulations and other organizational and administrative documents (see Examples 4 and 5).

A sample order on amendments to the List of positions of employees with irregular working hours is given in Example 4. However, if the changes to the specified List are large-scale, it is advisable to approve a new version of the document (see Example 5).

Example 3... Amendment to the employment contract: instead of irregular working hours, normal working hours are established

Change N 1
to the employment contract dated 17.02.2012 N 02-k

Novorossiysk

Limited Liability Company "Shipbuilding Company" Karavella "(LLC" SK "Karavella"), hereinafter referred to as the "Employer", represented by General Director Oleg Timofeevich Mikheev on the one hand and Ekaterina Dmitrievna Dorofeeva, hereinafter referred to as "Worker", on the other the parties, collectively referred to as the "Parties", have drawn up this amendment to the employment contract dated February 17, 2012 N 02-k (hereinafter the employment contract) as follows:

1. Sub-clause 2.1 of clause 2 of the employment contract shall be amended as follows:

"The employee is assigned normal working hours.

The working hours and rest hours of the Employee correspond to those established by the Employer in the Internal Labor Regulations of the employees of SK Karavella LLC (clause 3.2), approved by order of SK Karavella LLC dated 11.07.2009 N 114, with which the Employee is familiarized with personal signature ".

2. In everything else that is not provided for by this amendment to the employment contract, the Parties are guided by the employment contract, local regulations and other organizational and administrative documents of the Employer, current regulatory legal acts.

3. This amendment has been drawn up in two copies having the same legal force - one for each of the Parties.

4. Before signing these amendments to the employment contract, the Employee is familiarized with the following documents by personal signature:

1) The rules of the internal Dorofeeva E.D. Dorofeeva 09/16/2013

work schedule of workers ───────── ────────────── ──────────

LLC "SK" Karavella "(signature) (full name) (date)

approved by order

dated 11.07.2009 N 114

2) A list of employee positions

with irregular working hours Dorofeeva E.D. Dorofeeva 09/16/2013

"SK" Karavella ", approved by ───────── ────────────── ──────────

by order of 11.07.2009 N 114, (signature) (first name surname) (date)

as amended

by order of 09/10/2013 N 083

3) Regulations on employee vacations

LLC "SK" Karavella ", approved by Dorofeev E.D. Dorofeev 09/16/2013

by order of 11.07.2009 N 115 ───────── ───────────── ──────────

as amended by order (signature) (first name surname) (date)

from 10.09.2013 N 083

5. Signatures of the Parties:

Employer: Employee

General Director Dorofeeva E.D. Dorofeeva

Mikheev O.T. Mikheev

Example 4... The order on amendments to the List of positions of employees with irregular working hours, which was previously approved by the order for the organization, and the Register on familiarization of employees with this order

Closed joint-stock company"Product-Style"

Order

09.09.2013

N 02.102

Perm

About making changes

in the List of employee positions

Based on the results of the analysis of actual data on work outside the established duration of working hours in the period from 04/03/2009 to 08/30/2013 (minutes of the meeting with the heads of departments and departments of 09/02/2013 N 02.027), guided byArt. 57, 72 , 91 , 97 , 100-101 , 119 Labor Code of the Russian Federation,

I order:

1. From 16.09.2013 to make the following changes to the List of positions of employees with irregular working hours, approved by order of CJSC "Product-Style" dated 03.04.2009 N 02.011 (hereinafter referred to as the List): exclude clauses 6-8, 14-18, 32- 33 of the List.

2. To the head of personnel department Sergeeva I.D. ensure the timely execution of amendments to labor contracts with employees holding positions referred to in clauses 6-8, 14-18, 32-33 of the List as amended by order of CJSC "Product-Style" dated 03.04.2009 N 02.011, having previously familiarized these employees with the Rules internal labor regulations approved by the order of CJSC "Product-Style" dated 03.04.2009 N 02.010.

3. Human Resources Inspector Lanskoy NS organize familiarization of employees in accordance with the register, which isapplicationto this order, with this order for personal signature. The term of execution is 09/11/2013.

General Director Timofeev A.B. Timofeev

Appendix

To order CJSC "Product-Style"

from 09.09.2013 N 02.102

Registry
familiarization with the order of CJSC "Product-Style" dated 09.09.2013 N 02.102

	Structural subdivision	Position	AND ABOUT. Surname	Personal signature	Date of acquaintance
<…>
	Department of preschool education	Clerk-clerk of the 2nd category	T.N. Oskina	Oskina	09.09.2013
<…>

Example 5. Order on approval of a new edition of the List of positions of employees with irregular working hours with attachments: a new edition of the List and a sheet of familiarization with it

Open Joint Stock Company "StroyDorTech"

Order

11.09.2013

Omsk

Approval of the new edition

List of employee positions

with irregular working hours

As part of improving the system for regulating the work and rest regime of employees of OJSC "StroyDorTech", guided by Art. 57, 72, 91, 97, 100-101, 119 of the Labor Code of the Russian Federation,

I order:

1. To approve and put into effect on November 18, 2013 a new edition of the List of positions of employees with irregular working hours (hereinafter - the List, Appendix 1).

2. The revision of the List of positions of employees with irregular working hours, approved by the order of OJSC "StroyDorTech" dated 20.09.2010 N 107, shall be considered invalid from 18.11.2013.

3. The head of the personnel department V.K. ensure that appropriate changes are made to labor contracts with employees of StroyDorTech OJSC. The deadline is 09/27/2013.

4. To the head of the office Borisova Yu.A. organize familiarization of employees according to the list (Appendix 2) with this order and the new edition of the List of positions of employees with irregular working hours approved by it under a personal signature. The term of execution is 09/16/2013.

General Director Stroganov A.Yu. Stroganov

Annex 1

To order OJSC "StroyDorTech"

from 11.09.2013 N 074

Scroll
positions of employees with irregular working hours
(new edition)

Appendix 2

To order OJSC "StroyDorTech"

from 11.09.2013 N 074

List of employees,
familiar with the order of OJSC "StroyDorTech" dated 09/11/2013 N 074
and the new edition approved by him
List of positions of employees with irregular working hours

	Position with indication of the structural unit	AND ABOUT. Surname	Personal signature	Date of acquaintance
	Assistant manager	A.O. Semenova	Semenova
	Assistant manager	I. Zh. Vasina

In the same way and in the same manner, documents should be drawn up in the opposite situation: when an employee who has been hired under the condition of normal working hours is amended to an employment contract on irregular working hours, before signing he is also introduced under a personal signature with the Internal Labor Regulations, containing provisions on a new mode of work for him, with the List of positions of employees, who establish irregular working hours. Do not forget to indicate in the amendment to the employment contract the specific duration of the additional vacation due to the employee (or make a link to the document where it is spelled out, then it will also need to be familiarized with it under the signature).

However, there is an exception to the rule about the need for the consent of the employee to change the working regime. So, by virtue of Part 1 of Art. 74 of the Labor Code of the Russian Federation in the case when, for reasons related to changes in organizational or technological working conditions (changes in technology and production technology, structural reorganization of production, other reasons), the terms of the labor contract determined by the parties cannot be preserved (including the working regime). time), it is allowed to change them on the initiative of the employer, except for a change in the employee's labor function. The employer is obliged to notify the employee in writing no later than 2 months in advance of the forthcoming changes in the terms of the employment contract determined by the parties, as well as the reasons that necessitated such changes, unless otherwise provided by the Labor Code of the Russian Federation. If the employee does not agree to work in the new conditions, then the employer is obliged to offer him in writing another available job (both a vacant position or a job corresponding to the qualifications of the employee, and a vacant lower position or lower-paid job), which the employee can perform taking into account his state of health. ... At the same time, the employer is obliged to offer the employee all vacancies that meet the specified requirements that he has in the area. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, labor contract (part 3 of article 74 of the Labor Code of the Russian Federation). And according to Part 4 of Art. 74 of the Labor Code of the Russian Federation in the absence of the specified work or refusal of the employee from the proposed work, the employment contract is terminated in accordance with paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation. Let's make a reservation right away that the application of this article is very difficult from a legal point of view and requires the individual preparation of all documents jointly by the legal and personnel services. This is especially true for situations where such actions can lead to mass layoffs of employees.

With regard to the change in the mode of work from non-standardized to normal working hours, it is difficult to imagine circumstances that would not simultaneously require a change in the labor function. However, in practice, such cases are still known.

Example from judicial practice... The plaintiff went to court to the medical school (hereinafter referred to as the defendant, the employer) with a claim for reinstatement at work as a chief accountant. In support of her claims, she stated the following. From 14.02.2004 she worked for the defendant as a chief accountant, the conditions of her work were stipulated in the employment contract dated 14.02.2004 N 4, including irregular working hours and additional leave of 12 calendar days. 11/08/2010 the employer acquainted her with the supplementary agreement to the employment contract, referring to Art. 74 of the Labor Code of the Russian Federation. The plaintiff did not receive any document in the form of a notification, came to the conclusion that in her situation there was no change in the terms of the employment contract in accordance with Art. 74 of the Labor Code of the Russian Federation, and did not agree with what was written in the additional agreement. Therefore, the plaintiff signed an additional agreement of 11/08/2010 with a clause on her disagreement with its terms, including the working hours and rest hours. As a result, she was dismissed under clause 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation (refusal of an employee to continue work in connection with a change in the terms of the employment contract determined by the parties). The plaintiff considered the dismissal to be illegal and appealed to the Kuibyshevsky District Court Novosibirsk region... The first instance court satisfied the claim in part.

However, the defendant did not agree with this decision and appealed against it in the court of cassation. The latter overturned the decision of the court of first instance and issued a new decision to dismiss the claim. In the judicial act, he referred to the following. In accordance with the decree of the Governor of the Novosibirsk Region and the order of the Department of Health of the Novosibirsk Region, from 01.12.2008, the state budgetary institutions to a new wage system. In pursuance of these normative documents the defendant 09.09. new system wages. In connection with the change in the remuneration system, the working time regime has also changed and the condition on the irregular working day of the chief accountant was excluded. Accordingly, this led to the cancellation of additional leave. Regarding the plaintiff's argument that the dismissal procedure was violated by the defendant, namely: she was not notified of the change in the employment contract for 2 months, the court explained the following. The text of the notification is not legally established. The case file contained a written notification to the plaintiff dated 07.19.2010, according to which the employer notified her of a change in working conditions: the wage system, as well as changes in local acts. The notice stated the reasons for these changes. On the same day, the plaintiff was familiarized with the amended local acts: the charter, the collective agreement, the internal labor regulations, and on September 14, 2010 - with the remuneration regulation, July 21, 2010 - with the new job description... In such circumstances, the higher court considered that the failure to indicate in the text of the notification specific changes in the working hours and rest hours does not indicate a violation by the defendant of the dismissal procedure, since the plaintiff was familiar with the local acts in which these changes were contained and knew about them. She was offered a vacant position, but she refused it.

Mistake 3: additional leave for more than 3 days is provided at the expense of net profit

Quite often, the accounting department objects to the establishment of additional leave for employees for irregular working hours lasting more than 3 calendar days. This is due, as a rule, to a persistent misconception regarding the taxation procedure at the organization of payments to an employee in connection with such a vacation. Thus, many accountants mistakenly believe that:

- the cost of paying for vacation in the amount of 3 calendar days is taken into account for the purposes of taxation of profits (i.e. it is possible to reduce the amount of income received by the company before they are taxed on profit, which is beneficial),

- and the costs of providing a longer vacation are not taken into account and the company must implement them at the expense of its net profit remaining after taxation (which, accordingly, is unprofitable for the organization).

And if an accountant with such a wrong point of view manages to convince the top management of his approach, then it will in every possible way resist the establishment of employees' leave of 4, 5 or more calendar days. But in case of significant overtime within the framework of an irregular working day, employees, realizing the inadequacy of compensation in the form of only 3 days of vacation, may not stay for a long time at such work, and the head of the department will either face the need to knock out an increase in wages to increase the attractiveness of such work in the eyes of subordinates, or with a constant turnover of personnel for these positions. The situation can become more complicated if some workers are involved in processing more often than others, and everyone is entitled to the same additional leave - 3 days. Then the sense of justice can be heightened even among the most non-conflicting employees.

These kinds of "accounting" misconceptions are often obstacles to balancing the interests of the employer and employees. Therefore, let's figure out how the costs of providing additional leave are actually taken into account, and it is up to you whether or not to use our arguments in a dialogue with the management.

Let us recall what the Labor Code of the Russian Federation says about the length of leave for irregular working hours.

Fragment of the document ... Part 1 of Art. 119 of the Labor Code of the Russian Federation

So, if we proceed from the literal interpretation of the norms of the Labor Code of the Russian Federation, such a vacation can be 3 or more calendar days (the maximum duration of the additional vacation is not limited). And the specific duration should be spelled out in the collective agreement or internal labor regulations.

The procedure for accounting for the costs of paying additional vacations for the purpose of taxation of profits is established by the Tax Code of the Russian Federation (Tax Code of the Russian Federation).

Fragments of the document. Tax Code of the Russian Federation

Article 255 "Costs of wages" (extract)

Article 270 "Expenses not taken into account for tax purposes" (extraction)

Referring to the above norms of the Labor Code of the Russian Federation and the Tax Code of the Russian Federation, the Office of the Ministry of Taxes and Duties of Russia in Moscow in a letter dated 05.01.2003 N 26-12 / 1419 makes a dubious conclusion.

Fragment of the document ... Letter from the UMNS of Russia in Moscow dated 05.01.2003 N 26-12 / 1419

At one time, this point of view of the tax authority was cited in many media. Other tax authorities have often followed a similar interpretation. It is no wonder that it is so entrenched in the memory of accountants.

But should we be guided by it now? Definitely not. First, the approach of the Moscow tax authorities is based on an incorrect interpretation of the provisions of the laws. After all, Art. 255 of the Tax Code of the Russian Federation provides for referring to the expenses of paying for the leave provided for by the legislation of the Russian Federation, while the legislation (Art. ). Secondly, it is customary to fix the specific amount of additional leave in labor contracts with employees (according to part 2 of article 57 of the Labor Code of the Russian Federation). And one of the signs of recognizing costs as expenses, according to all the same Art. 255 of the Tax Code of the Russian Federation, is their direct indication in the employment contract. Therefore, expenses should include all the actual costs of paying for additional leave, the number of days of which is prescribed in the employment contract (and / or in the Internal Labor Regulations, reference to which is contained in the employment contract) and / or in the collective agreement (in those organizations where a collective agreement has been concluded and is in force). This conclusion is supported by the Russian Ministry of Finance.

Fragment of the document. Letter of the Ministry of Finance of Russia dated January 28, 2005 N 03-03-04 / 1/38

... the conditions for granting employees with irregular working hours an additional annual paid leave relate to the work and rest regime, which is an essential condition of the employment contract.

In connection with the foregoing, for the purposes of taxation of profits, the costs of paying for an additional annual leave of at least three calendar days are taken into account in actual amounts, subject to the procedure for granting the said leave provided for by the current legislation of the Russian Federation.

Similar provisions are contained in other, later letters of the Ministry of Finance of Russia: from 13.01.2006 N 03-03-04 / 2/5, from 06.05.2006 N 03-03-03 / 2/131, from 29.01.2007 N 03-03 -06/4/6, etc. The correctness of the arguments considered is also confirmed by arbitration practice (see, for example, the ruling of the Federal Arbitration Court of the North-West District of 10.17.2006 in case No. A56-28496 / 2005).

Therefore, the costs of paying for an additional vacation of any length are recognized as expenses for the purposes of taxation of profits, provided they are correctly recorded in the appropriate documents. And when deciding how long to set a vacation when working in a position with irregular working hours, one should proceed from considerations of the degree of labor intensity at the time of "transcendental" work, the amount of work performed, the nature of episodes when it may be necessary to attract an employee to work outside the established working hours; and how often such "overtime" can take place. This will allow both to avoid disputes with employees, and to make work in certain positions more attractive in the eyes of candidates when hiring.

Mistake 4: the employer is not interested in a written order

We have already said that the current labor legislation does not formally require the employer to issue written orders to attract employees to work outside the established working hours. Therefore, many organizations, not wanting to waste time in specific situations on the publication of written acts on "outrageous" work and bringing them to the attention of employees under a personal signature, limit themselves to verbal instructions on this topic. However, they are often faced with the fact that such time savings entail significant losses in the future.

Let's see how it is actually more profitable to act in a company in which there is a need to occasionally involve employees in "outrageous" work.

To begin with, by virtue of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), it is the employing organization (and its officials authorized in the field of labor protection, primarily the head of the company) that is responsible for safe working conditions, ensuring labor protection for workers places. It is therefore in the best interest of the company to ensure that working hours are clearly regulated and that the responsible officials have taken all the measures in their power to prevent accidents at work. Including by issuing an order on the inadmissibility of violation of the working regime by employees, which can be expressed not only in being late for work and absenteeism, but also in the habit of staying at work outside the established working hours in order to deal with personal affairs, using the company's office equipment for their own purposes while showing the employer imaginary overwork. We have already provided a sample of such an order (see Example 1 in the first part of this article on page 51 in No. 9 "2013). However, this is only the first step towards controlling the situation with overwork.

Most cases of "outrageous" work in practice are caused by improper work organization on the part of the employees themselves, who do not have time to work between numerous smoke breaks and other "eaters" of working time on a working day (conversations over a cup of tea with colleagues, telephone conversations with relatives, regular correspondence on personal topics in in social networks etc.), and from the side of their immediate supervisors, who look at such a situation "through their fingers" or incorrectly distribute tasks between subordinates (someone is overloaded with work and physically does not have time to complete it in the allotted working time, and then he idles after lunch, not knowing what to do with himself, because he completed all the planned work in the morning). And the habit of postponing complex tasks close to the "deadline" does not lead to good.

Issuing written orders in cases where it is required to involve specific employees in work outside the established hours of work, disciplines not only their immediate supervisors (from whom the higher management may "ask" for overtime if they turn from episodic to regular), but and the employees themselves (written assignments are always treated more responsibly than oral assignments).

The presence of written orders will allow for more efficient accounting of actual overtime and, if necessary, promptly raise the issue of either revising labor standards, the number of personnel, or excluding the condition of irregularity for those positions for which, in reality, there is no need for this.

So, when an employer actively uses irregular working hours, he should not neglect such written orders if he is interested in:

- to protect yourself from the claims of employees regarding the imaginary overwork on their part;

- take measures to reduce the likelihood of employees using office equipment and other resources of the organization for personal purposes;

- to secure evidence of the absence of guilt of leading officials in accidents with employees who, on their own initiative, were delayed at work after hours;

- to control the situation with unreasonable expenses for payment of additional rest time in connection with overworking of personnel due to improper organization of work of subordinate employees on the part of their immediate supervisors;

- avoid disruptions in the execution of important assignments, when employees ignore verbal orders about the need to complete urgent work after the official end of the working day and then use the standard excuses "no one told me anything ...";

- facilitate the fulfillment of the statutory obligation to accurately record the time worked by each employee;

- remove possible questions tax authorities on the confirmation of the justification for the costs of providing additional vacations to employees in connection with irregular working hours.

For the same reasons, it is easy to guess that those employees who are distinguished by dishonesty, the situation with oral instructions is much more profitable than the system of issuing written administrative acts established in the company.

In order to minimize the labor costs associated with drawing up documents on attracting to work within an irregular working day, it is advisable to unify such work, in particular:

1. To include in the Internal Labor Regulations of the organization (hereinafter - PVTR) provisions on:

- the procedure for establishing irregular working hours;

- how to form, change and supplement the list of positions of employees with irregular working hours (this will allow us to introduce criteria on the basis of which a decision will be made on which workers' job function requires irregularities in the work schedule, when, under what conditions and how the previously approved list may be amended). See the order in Example 4 in the first part of the article in No. 5 "2013 on page 53;

- the criteria that should be followed in determining specific situations when this or that employee can be involved in "outrageous" work;

- granting additional leave to employees with irregular working hours (including the number of days of such leave in relation to certain positions).

Example 6... The form of the order on attracting the employee (s) to work outside the established working hours for him (them)

Approved by

by order of "Yunona" LLC

dated 07.10.2013 N 62

Limited Liability Company "Yunona"

Order

_____________ N ______________

(date)

Oryol

About attracting to work

beyond the established

working hours

In connection with ___________________________________________________________

(the actual basis for recruiting to work for

limits of the established duration of working hours)

guided by Art. 101 of the Labor Code of the Russian Federation, Rules

internal labor regulations of "Yunona" LLC (clause 3.4.1, appendix

N 4.1), approved by order of September 28, 2012 N 93,

I oblige:

1. ___________________________________________________________________

(job titles (with indication of structural divisions),

surnames, initials of employees involved in work outside

the duration of working hours established by him)

during the period _________ carry out _________________________________________

(assignment within the framework of official

responsibilities of employees, which should

be performed outside the established

their working hours)

outside the established working hours within the

determined by him in accordance with the terms of employment contracts

irregular working hours and taking into account the need to perform

assigned work ______________________________________________________.

(deadline by which it is necessary to complete the assigned work)

Reason: ______________________________________________________________

(type of document (for example, a service or memorandum) and its

divisions), surname, initials of the official)

from ____________________ N .__________________________________.

(date) (number)

2. ___________________________________________________________________

surname, initials of the head authorized to control

the work entrusted by this order)

provide control ____________________________________________________.

(the work performed or its key parameters,

subject to control)

3. ___________________________________________________________________

(job title (indicating the structural unit),

ensure the actual recording of the time worked ______________________

(names

positions (indicating structural divisions), surnames, initials

employees involved in work outside the established by him

working hours)

4. ___________________________________________________________________

(job title (indicating the structural unit),

surname, initials of the person in charge)

bring this order to the attention of ______________________________

(job titles (with

_________________________________________________________________________

indicating structural units), surnames, initials of employees

employed outside the established duration

working time; as well as officials specified in clauses 2-3 of this

orders)

under a personal signature. Period of execution ____________________________________.

_____________________________ ________________ ___________________

(job title (personal signature) (initials, surname)

(indicating the structural

subdivisions) of the person

authorized to publish this

order)

2. Issue an order on compliance with the labor regime at the enterprise, which provides for:

- the obligation of employees with normal working hours to leave their workplaces immediately after the end of the working day;

- extension of a similar obligation to employees with irregular working hours in all cases, except for those when, by written order, they are involved in work outside the established working hours;

- a list of officials of the management staff of the company who can issue orders, signed by themselves, on the occasional involvement of subordinate employees to work outside the established working hours;

- imposing on the relevant officials the responsibility to analyze the reasons for work outside the established duration of working hours.

3. To approve the form of the order on engaging in work within the framework of irregularity, which could be easily used in a specific situation. You can use Example 6 as an example.

The proposed option for documenting when attracting employees of the enterprise to work outside the established duration of working hours not only ensures its uniformity, but also contributes to the correct accounting of the time actually worked by such employees. We will talk about why it is necessary to establish this accounting when considering the following misconception.

Mistake 5: time worked outside of the established working hours can be ignored

The roots of this myth rest on the following opinion, expressed more than once in publications in periodicals: if a specific working time outside the established working hours is noted in the time sheet, this will mean that the employer was able to measure and calculate the employee's work in hours, i.e. .e. such work will turn from non-standardized to standardized, and overwork will become paid as overtime work. On this basis, a number of specialists conclude that better job do not reflect at all in the time sheet in excess of the established working time. Moreover, as you know, the provision of additional paid leave does not depend on the presence or absence of actual overtime during the year.

However, by virtue of Part 4 of Art. 91 of the Labor Code of the Russian Federation, the employer is obliged to keep records of the working time actually worked by each employee! And violation of this obligation threatens to be brought to administrative responsibility in the manner and under the conditions established by Art. 5.27 of the RF Code of Administrative Offenses. In particular, officials of the organization can be fined in the amount of 1,000 to 5,000 rubles, the organization itself - from 30,000 to 50,000 rubles (or its activities may be suspended for up to 90 days). Moreover, a repeated violation of labor legislation by an official previously subjected to administrative punishment for a similar violation may result in his disqualification.

Let us clarify that labor legislation, establishing the employer's obligation to keep records of the time actually worked by each employee, does not make any exception for work in conditions of irregular working hours.

At the same time, Rostrud, in a letter dated 07.06.2008 N 1316-6-1, provided clarifications that the Labor Code of the Russian Federation does not recognize overtime in the case of irregular working hours, in which an increased wage is required. On the contrary, this department emphasizes that compensation for work in the regime of irregular working hours is provided only in the form of additional leave.

Another issue is that, within the framework of an irregular working day, overworking in and of itself should not be systematic, they should only be episodic. And the presence of a written document, which reflects the actual hours worked, makes it possible to conclude whether employees are really involved in "outrageous" work irregularly. In other words, the absence of the need to record the time worked in excess of the established duration is usually said by those who want to hide (from the inspection bodies, management) constant overtime. But, firstly, the secret sooner or later can still become apparent, and secondly, the absence of documents for recording working hours creates a prerequisite for bringing to administrative responsibility due to the very fact of the absence of such documents.

If the employer does not abuse his right to involve personnel in "outrageous" work within the framework of irregular working hours, then he should not be afraid to keep a correct record of the hours worked. In general, with the proper establishment of this regime at the enterprise, questions to the employer should not arise either from the inspection bodies or from the courts. This is confirmed by numerous examples from judicial practice. Here are some of them.

Arbitrage practice. Served in the Office of Governor and Government Affairs Krasnoyarsk Territory driver passenger car the second class of the motor depot of the transport service department filed a claim with the employer for the recovery of payment for overtime work and compensation for moral damage. The claim was motivated by the fact that from 2007 until the date of dismissal (11/18/2011), he regularly, on behalf of the employer, worked more than 8 hours a day (despite the fact that his work schedule was an 8-hour working day with a five-day working week), an average of 12 hours a day, but did not receive overtime pay.

When considering the case, the court found that, according to the employment contract concluded between the plaintiff and the defendant, the plaintiff's working hours were established in accordance with the employer's internal labor regulations. It stated that work outside the established hours of work, if the employee works on irregular working hours, is not overtime. At the same time, in accordance with Appendix 2 to the said Rules, an irregular working day was established for the driver of a car.

On this basis, the court concluded, among other things, that the plaintiff, having concluded an employment contract on irregular working hours, had thereby already expressed his consent to employ him outside the established working hours, therefore the time worked by the plaintiff for limits of normal working hours, overtime work is not and is not covered by the guarantees provided for by law for employees working overtime (appeal ruling of the Krasnoyarsk Regional Court of 19.09.2012 in case N 33-8174 / 2012).

Arbitrage practice. The plaintiff went to court to the Office Federal Service bailiffs in the Republic of Buryatia on the recovery, among other things, of wages for overtime work and the amount of compensation for moral damage. He referred to the fact that during his service as a bailiff-executor, he was involved on the initiative of the employer to work in excess of the normal working hours.

The court found that the plaintiff's service contract provides for irregular working hours and additional paid leave for it. The defendant proved that the plaintiff was granted additional leave. Therefore, the court, along with other findings, with respect to the claim for payment of overtime work, indicated that there were no grounds for payment of the plaintiff's work performed during a period exceeding the normal length of service time (appeal ruling of the Supreme Court of the Republic of Buryatia dated 09.04.2012 in case No. 33-742).

Arbitrage practice. The plaintiff, who worked as a driver at ZAO Mine Aprelkovo, filed a lawsuit against the employer to collect overtime pay and compensation for moral damage. In substantiating his claims, he stated that the employer had abused the right and the regime of irregular working hours.

However, in this situation, the court supported the employer, indicating that it follows from the employment contract and waybills that the plaintiff worked in the regime of irregular working hours; upon dismissal, the plaintiff received compensation for unused additional leave for irregular working hours in full (appeal determination of the Zabaikalsky regional court dated 16.10.2012 in case N 33-3284-2012).

So, the obligation to keep records of the working hours actually worked by each employee, including those with irregular working hours, is established by law. But in the Labor Code of the Russian Federation there are no rules on how to properly carry out this accounting.

Since 01.01.2013, unified forms of primary accounting documentation for labor accounting and remuneration have become optional. But this does not mean that accounting documents are not required at all. The whole question is in what form they should be drawn up starting from 01.01.2013.

Now employers can either continue to apply the unified forms, approving them as used in their enterprise, or develop their own forms of documents, also approving them in the prescribed manner. Most organizations have already taken advantage of the first option described. However, the time sheet (according to forms N T-12, T-13, approved by the resolution of the State Statistics Committee of Russia dated 05.01.2004 N 1 "On approval of unified forms of primary accounting documentation for accounting of labor and its payment") does not provide for special symbol for work outside the normal working hours with irregular working days. Therefore, in such a situation, there is room for maneuver. You can:

- either supplement the "goskomstat" forms with new designations and columns / lines in order to reflect the processing in the conditions of irregular working hours, approving its edition of such a form for internal use in the company;

- either develop a form for another document - a journal for recording the actual hours worked (in excess of the established duration of working hours) by employees with irregular working hours.

The second option is more convenient. It allows you not to overload the timesheet with data on overtime in the conditions of irregular working hours and to take into account such overtime separately from those that are payable as overtime. At the same time, as a confirmation of the fulfillment of the obligation to keep actual records of working hours worked in excess of its established duration, this document will avoid administrative liability. An example of a journal form and filling it out is shown in Example 7.

Example 7... Register of records actually worked in excess of the established duration of working hours by employees who have an irregular working day

Cover page of the magazine

Closed Joint Stock Company "Gamma"

Magazine
accounting for the actual hours worked (in excess of the established duration of working hours) by employees who have an irregular working day for 2013

Responsible for logging:

Inspector of the personnel department A.S. Komova 01.01.2013

divisions)

───────────────────────── ────────────────── ───────────────────────

(job title (initials, surname) (date from which

responsible person with a responsible person appointed

indicating the structural entity)

divisions)

───────────────────────── ────────────────── ───────────────────────

(job title (initials, surname) (date from which

responsible person with a responsible person appointed

indicating the structural entity)

divisions)

<…>

Subsequent sheets of the magazine

October 2013

Structural subdivision

Surname, initials, position (specialty, profession)

Personnel Number

Notes on the duration of work outside the established duration of working hours, hour

Duration of work outside the established working hours for

Note

half a month

Department of Labor and Wages

Soeva S.S., economist

order of 10.25.2013 N 04.2-03, report of Soeva S.S. from 31.10.2013 N 04.2-01

In practice, the question arises: how will the person responsible for drawing up documents for the actual recording of hours worked, will record overtime - does he also need to stay late at work, exercising control over the working time of an employee with irregular working hours? Not at all. It is enough to provide a mechanism for confirming processing in the internal documents of the company. It can be:

- data (printouts) automatic system access control to the premises;

- personal signatures of employees in the journals of arrival and departure from work, indicating the time of arrival at work and leaving work;

- Memorandum (service) notes of the relevant employees and their managers, reports on the work done outside the established working hours, etc.

The specific option is selected depending on the specifics of the activity and the features of the document flow of a particular enterprise.

Mistake 6: there can be no irregular working hours with part-time work

Until now, many believe that irregular working hours can only be established for full-time workers. And with regard to those who are employed on a part-time basis, it is allegedly impossible to talk about irregular working hours. This position is partly based on a note to the List of positions of employees of the Pension Fund of the Russian Federation with irregular working hours, with the exception of service personnel (approved by Resolution of the PFR Board of November 1, 2007 N 274p). It provides for the following: employees who, in accordance with the law or by agreement between the employee and the employer, are assigned part-time working hours (part-time (shift) or part-time work week), irregular working hours are not established.

However, the current legislative definition of irregular working hours, given in Art. 101 of the Labor Code of the Russian Federation, implies that an employee occasionally, by order of the employer, can be involved in work outside the established for him (i.e., including incomplete) working hours. Rostrud adheres to this interpretation:

Fragment of the document

Rostrud letter of 04/19/2010 N 1073-6-1 "On the indexation of wages to employees, as well as the possibility of establishing irregular working hours for workers employed part-time"

As an exception to this rule, the work of part-time workers can be called. Although there is no formal direct prohibition to establish an irregular working day for a part-time employee, it should be remembered that his working time is initially legally limited: according to Art. 284 of the Labor Code of the Russian Federation, the duration of working time when working part-time should not exceed 4 hours per day, and within 1 month (or another accounting period) the duration of the working time should not exceed half the monthly norm (or the working time norm for another accounting period) established for the corresponding category of employees. Therefore, we do not recommend setting irregular working hours for part-time workers, even if their part-time positions are included in the list of positions of employees with irregular working hours approved at the enterprise.

Since the criteria for episodic involvement in labor within an irregular day and maximum amount overtime, in practice, disputes often arise between the employee and the employer. Let's try to figure it out.

Another feature of this work regime is the employer's ability to attract an employee both before and after the end of the shift without obtaining his consent to work in excess of the norm (Letter of Rostrud dated 07.06.2008 No. 1316-6-1). This position is confirmed by the recently issued Letter of the Ministry of Labor dated October 29, 2018 No. 14-2 / ​​OOG-8616. In the letter, officials remind that the introduction of irregular working hours should not change the established working hours, and overwork should not lead to the transformation of irregular working hours into an extended one.

If the employee's employment contract does not contain a condition on the irregularity of his working time, but he is occasionally involved in work outside his work norm, such an employee may also qualify for an additional weekend. However, he may choose to compensate with money. In this case, you need to be guided by the new edition Art. 119 TC- the rule is excluded from it that if the employer does not provide additional leave for using an employee in the irregular day mode, overworking in excess of the standard working hours with the employee's written consent is compensated as. Thus, the legislator does not recognize overtime work in case of irregular day work, which must be compensated for by additional payment and has restrictions on hours.

At the same time, employees whose working day is irregular are extended to the beginning and end of the working day, providing them with weekly days off and rest on holidays. This means that attracting an employee to additional work on weekends and holidays is possible only in compliance with the rules Art. 113 and Art. 153 of the Labor Code of the Russian Federation... This is also reminded in the Letter of the Ministry of Labor No. 14-2 / ​​OOG-8616.

Night work is also a deviation from the norm, therefore it must be properly formalized and paid in increased size established by local acts or ( Art. 154 of the Labor Code of the Russian Federation).

To whom the irregular day is set

Legislation does not restrict the employer in the choice of positions for which irregular working hours can be established. However, the definition of such a list must be approached taking into account the nature of the work and not include in it all the positions available at the enterprise. This may raise questions from the reviewers.

The list of positions can be drawn up in the form of a separate local normative act or included in a collective agreement, internal labor regulations. Also, it must be agreed with the representative body of workers (if any).

Sample order for the approval of the list of positions

Documentary registration of conditions

When hiring an employee, it is necessary to familiarize oneself with the collective agreement, the internal labor regulations and other local regulations in force in the organization and concerning his labor function. After that, an employment contract is concluded with the employee, which includes a condition for working in irregular working hours. By signing it, the employee agrees with the nature of the work involving overwork.

Sample employment contract

Also, this condition must be indicated in the order for employment.

Sample order

It is worth noting that if an employment contract is concluded with an employee for a position that is absent in the approved list of professions with irregular working hours, then this condition is illegal. Consequently, the employee has the right to refuse to work beyond the duration of the working day and on this basis he cannot be brought to disciplinary responsibility.

If an employee is transferred to a position for which an irregular day is established, then the employer should:

• familiarize him with local regulations containing a list of positions with irregular working hours;
• conclude an additional agreement to the employment contract on the inclusion of the condition of the irregular day and compensation for this nature of work;
• issue a corresponding order (in free form).

If the employee excludes the condition of an irregular day, then the employer must conclude an additional agreement with him, which will contain a different mode of work, and issue a corresponding order.

Registration of attraction to work in excess of the norm

The procedure for attracting workers to work in excess of the norm with irregular working hours is not regulated. In practice, recruitment is often carried out on the basis of an oral order from the boss or on the initiative of the employee himself, who did not have time to complete the task. It seems that in order to guarantee the rights of workers, it is advisable for them to demand from the employer a written order to engage in work in excess of the norm, otherwise it will be difficult to prove the existence of such an expression of the will of the employer.

Job accounting

The work time of an employee with irregular days is recorded without taking into account the time worked in excess of the norm. This is due to the fact that he is not compensated in cash, as is the case with overtime work, but is granted additional annual leave. But since Article 91 of the Labor Code of the Russian Federation it is determined that the employer is obliged to keep, in fact, worked by each employee, the employer can keep such records in a separate independently developed document, for example, a log book or a separate time sheet. This can be useful if an abnormal situation occurs while performing work outside the working hours.

Part-time and part-time jobs

According to article 101 of the Labor Code of the Russian Federation, an employee working on conditions can set an irregular day if he is assigned a part-time work week, but with a full-time work day (shift).

If the employee is assigned a part-time working day, then it is impossible to establish an irregular working day for him. In this case, one of the modes of labor completely loses its meaning.

Also, the law does not prohibit the establishment of irregular days. But there are some peculiarities here:

• if the duration of the part-time job is set working day no more than 4 hours, then such a working day is considered incomplete. Therefore, it is impossible to establish irregular working hours;
• if a part-time worker at the main place of work on some days is free from the performance of labor duties, then he can work a full shift with an incomplete working week. In this case, it will be possible for him to establish an irregular working day (according to Art. 101 of the Labor Code of the Russian Federation) and, accordingly, compensation in the form of annual paid leave of at least three calendar days.

At the enterprises of the country, without regard to ownership, you can conclude an agreement where an irregular working day will be indicated, in the establishment of which additional days are required to labor leave those employees to whose positions it is applicable. The concept migrated to the current Labor Code from the old Labor Code, but with its own nuances. What you need to know for those employees who agree to an irregular work schedule - in detail below.

What is irregular working day

Irregular work schedule, during which some employees of the organization can perform labor duties, more precisely, to be attracted to this by their management over the duration of the employment time - this is an irregular working day. Moreover, the consent of the employee is not required, since this paragraph is spelled out specifically in the employment contract.

It is important to understand that the established nature of work is not permanent, but only when necessary - this is enshrined in legislation. Often, upon admission, an applicant can fill out a questionnaire where there is a question about consent to work on a non-standard day. The introduction of such a regime can only be approved by the head of the organization. It is introduced for management personnel and other categories of workers, for example, drivers.

The concept of irregular working hours in Russian law

V Labor Code there is a separate article defining what irregular working hours are. This circumstance is prescribed in the concluded work contract. The candidate is obliged to put his signature on this document, confirming his consent. It is important to understand that such a routine involves the performance of duties by employees in accordance with the routine of the working day. Those who assume that under such conditions of employment it is possible to come or leave their work at any time are mistaken.

Duration

According to the law, the length of the irregular working day is fixed by an employment contract and various local acts, certain agreements in force in the organization. Violation of this regime is not allowed. It is possible to increase the occupancy time only by setting overtime work. This is the main difference. Work over the established time must be separately accounted for and paid for. The manager does not have to give instructions to start performing functions on weekends or holidays (business trip does not count).

How irregular working hours are established at the enterprise

Document irregular schedule work can be done in two ways:

• by concluding an employment contract. Before signing, the specialist is introduced to the list of professions for which a special work schedule is fixed, he is given information about local regulations, which reflects information about this mode. After that, an order for employment is issued, where information on abnormal employment is prescribed.
• in the process of performing duties. You can set a non-standard day by means of an additional agreement, where changes are established on the conditions of the working day. Information on the provision of additional leave with payment is also reflected there.

Irregular day order

The need to issue an order is a controversial matter, since an employment contract with irregular working hours thus establishes all the norms of this regime. The publication of the order gives the accounting department the basis for calculating the payment. Registration is carried out on the company's letterhead, however, simple registration is also allowed if the company does not provide for such forms. The order is assigned a number according to the numbering in the accounting journal. The document indicates the position and full details of the employee, in respect of whom a special mode of employment has been established.

It is imperative to indicate in the order the date when the employee begins to perform his duties under the special regime. There is also information on the provision of incentives for work on a non-standard schedule. As a rule, these are additional days of paid leave. At the end of the order, it is indicated who is the controlling person for the execution of the order. The order is endorsed by the head of the enterprise with a stamp.

Accounting for irregular working hours

If in an organization or at an enterprise an employee works on a non-standard day's schedule, then this accounting of working hours is somehow not particularly reflected in the report card. According to the law, the employer is obliged to keep records of the time worked separately by each employee. For this purpose, a journal of daily recording of the duration of labor time is intended. It is conducted with the aim of not overworking, since a non-standard day is different from overtime work. The method of logging is regulated by internal legal acts.

Payment for irregular working hours

With regards to compensation for work according to the schedule of a non-standard day, here it is necessary to note one feature. Overtime work provides for an additional payment to the salary in a certain amount, those employed under abnormal conditions are deprived of such an opportunity under the terms of the law. Instead, they are provided with additional days, which are added to the annual labor leave. The number of days is negotiated separately and each employer has the right to set its own number, which is reflected in the collective agreement.

How many hours can you recycle

For workers with a non-standard day, the employment contract defines in writing the schedule of employment and the period of rest, breaks, the execution of which is mandatory on all sides. When a non-standard day is allowed, it is allowed to attract an employee to work, and this is done not on a permanent basis, but only occasionally, and the duration of processing is not established in any way. If for a whole year the specialist has never been involved in the performance of duties under such a regime, then a revision of working conditions should take place.

Vacation pay

It is easy to get a vacation for an irregular working day - you need to write a statement, and there is no need to do this separately, since these days are added completely to the main vacation. The number of these days is calculated by order directly for the enterprise, and the employee is paid for them, as well as for the entire vacation, in a similar way. Taxation is carried out in mandatory from these payments.