Due to irregular work hours. Additional leave for overtime work

Recently, employers who have difficulties with working in irregular working hours have turned to us for clarification. The problem is that the latter sometimes start work later, for example, a couple of hours, believing that lateness is acceptable, since in previous days there were delays at work after its formal end. And if they were often delayed, they demand a paid day off, indicating that they have already processed, and significantly. Is the position of employees justified, should the employer satisfy their requirements and provide an additional day off, how is work organized in the irregular working day? You will find answers to these and other questions in the article.

According to Art. 97 of the Labor Code of the Russian Federation, the employer has the right in the manner determined Labor Code, involve an employee in work outside the working hours established for him:

• for overtime work (Article 99 of the Labor Code of the Russian Federation);
• if he works on an irregular working day (Article 101 of the Labor Code of the Russian Federation).

The concept of irregular working hours

Article 101 of the Labor Code of the Russian Federation gives a clear definition of such a mode of work - this is a mode in which individual employees can, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the working hours established for them.

In practice, personnel and accounting services often equate an irregular day with overtime work, but without providing appropriate guarantees.

Overtime work is carried out at the initiative of the employer outside the working hours established for the employee: daily work (shift), and in the case of summarized accounting of working hours - in excess of the normal number of working hours for the accounting period (Article 99 of the Labor Code of the Russian Federation). That is, the concept of an irregular working day in the Labor Code involves the appointment of a special working time regime. Equate this concept overtime is inappropriate.

Working in irregular working hours, like other employees, is subject to the mode of work in the organization. For example, if a company's working day starts at 9.00 and ends at 18.00, then an employee with an irregular working day must come to work and leave at the specified time. key point with an irregular working day is that to work in excess established norm working time, the employee is involved sporadically, that is, not often. Although there are employers who are confident that if an employee has such a work schedule, he must sit at work from 8.00 to 00.00. This is mistake.

Many workers believe that since they have an irregular working day, they can come to work instead of the prescribed 9.00 to 10.00 or 11.00 or leave when they please. It's a delusion. The introduction of irregular working hours does not at all imply flexible working hours. The application of such a regime to a separate group of persons does not relieve them of responsibility for non-compliance with labor discipline.

Thus, the employee filed a lawsuit to declare the disciplinary sanction unlawful. He was reprimanded for being 25 minutes late for work. The employee believed that there could be no delay, since he had an irregular working day. Court, recognizing disciplinary action legal, indicated that an irregular working day involves work outside the established working hours and does not provide for the release of the employee from work within the established working hours, as well as arbitrary self definition by the employee of the time of coming to work and leaving work, the admission of being late for work(Determination of the Moscow City Court of June 7, 2016 No. 4g-5671/2016) .

Who can be assigned an irregular working day?

Let's say right away that the Labor Code does not limit the choice of the employer: he has the right to determine the categories of employees who can be assigned such a mode of work. The main condition is to develop and approve a list of employees' positions. It is included in the collective agreement, agreement or any local regulatory act of the employer.

Such a list may include positions of employees:

• the duration of which cannot be accurately calculated (heads of companies, business personnel and employees technical services);
• planning the implementation of the tasks at their discretion;
• the working day of which is divided into intervals of unspecified duration.

It is not necessary to include absolutely all positions on the staff list in the list - controllers will consider this irrational.

Note

The list of positions of employees with irregular working hours must be agreed with the representative body of employees (if any).

Here is an example of what such a list might look like.

For work in irregular day employees holding the positions referred to in clauses 1 and 2 are provided with an additional annual paid leave of 5 calendar days in accordance with clause 3.7 of the internal labor regulations dated 10.10.2003 No.  3.

Is it possible to establish an irregular working day for a person performing work on a part-time basis?

Yes, you can. There is no corresponding ban, and Rostrud has repeatedly spoken out on this issue, pointing out such a possibility (see, for example, Letter No. 1073-6-1 dated April 19, 2010).

Making a condition for irregular working hours

Many employers believe that if an employee is familiar with the local regulation, according to which his position implies a special mode of work, this is enough to periodically involve the employee in overtime work. Moreover, most employers prefer not to formalize the attraction in any way, making verbal orders. However, we will say right away that it is not enough to approve the list of positions of workers with irregular working hours. Any time an employee needs to work more than they should, this should be documented.

So, if even before hiring it is known that this employee an irregular working day will be required, before concluding an employment contract, a beginner must be familiarized with local regulations that establish a list of positions with irregular working hours, indicate the type and amount of compensation for working in this mode. Then it is issued labor contract, which includes the condition of working in irregular working hours, if the corresponding position is included in the list of positions of employees with irregular working hours. The inclusion of such a condition in the contract is necessary, since among the mandatory conditions of the employment contract, named in Art. 57 of the Labor Code of the Russian Federation, it means working hours and rest time (if for this employee it differs from the general rules in force for this employer).

Thus, an employee was brought to disciplinary responsibility for refusing to continue working outside of working hours. Recognizing the punishment as unlawful, the court said that failure to comply with the oral order of the head of the department on the urgent processing of materials for the field season cannot serve as a basis for bringing to disciplinary liability in the form of a reprimand, even if the employment contract establishes an irregular working time regime (Appeal ruling of the Kurgan regional court dated 08.07.2014 in case No. 33‑1982/2014).

After signing the employment contract, an order is issued, in which in the column "Conditions for employment, nature of work" an indication is made of a special mode of work. Next, a work book is filled out without indicating a special mode of operation, an employee's personal card.

If the position was included in the named list in the course of work, then the employees holding these positions must be notified in writing of the change in the mode of work at least two months before the establishment of a new mode. Because Art. 74 of the Labor Code of the Russian Federation allows you to change the terms of an employment contract only for reasons related to changes in organizational or technological working conditions (changes in equipment and production technology, structural reorganization of production, etc.), the employer must have reasons to add this or that position to the list of positions with irregular working hours.

If the employee does not agree to work in the new conditions, the employer is obliged in writing to offer him another available job (both a vacant position or a job corresponding to qualifications, and a vacant lower position or a lower paid job), which the employee can perform taking into account his state of health.

In the absence of the specified work or refusal of the proposed employment contract is terminated in accordance with paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation.

Registration of attraction to work over the norm of working hours

In the irregular working hours, the employee is involved in work periodically by order of the employer. However, in Art. 101 of the Labor Code of the Russian Federation does not say how such an order should be drawn up. Based on this, we can say that the legislator also allows the oral form. At the same time, we believe that the oral form of the order should be used only if the company has a well-established time record.

Regarding the fixation of processing in the irregular working hours, there are two positions.

Some experts believe that it is simply necessary to do this, since according to Part 4 of Art. 91 of the Labor Code of the Russian Federation, each employer must keep accurate records of the working hours worked by each employee. For this, the time sheet is most often used. unified form T-12 or T-13. The use of magazines is also not prohibited.

If an employee is late after work, then, most likely, the employee who enters the information in the time sheet will go home earlier, so there will be no one to record the number of overtime hours. In such cases, it is advisable to issue a written order. In addition, it can be written in the job description or employment contract, for example, that an employee stays at work for two hours twice a month to prepare a report. But there is no need to fix the condition that it is required to linger daily or every other day. Otherwise, when an employee contacts the GIT, controllers recognize such periodic involvement in work outside of working hours as a violation of labor laws.

Other experts believe that the indication in the time sheet of processing leads to the fact that irregular working hours can be confused with overtime, and if the accountant considers the mark in the report card to be information about processing, he will pay for it.

We adhere to the first point of view, since no one canceled the time sheet. Yes, and fixing the time spent at work will help the employer track the frequency of going beyond the working day. In addition, time tracking will come in handy in case of any emergency - it will be possible to say for sure whether the employee was at the workplace or not.

note

Compensation for working irregular hours

As we found out, the processing time in the named mode of operation is not paid. However, legislators did not leave such workers without compensation.

Article 119 of the Labor Code of the Russian Federation determines that employees with irregular working hours are provided with annual additional paid leave, the duration of which is determined by a collective agreement or internal labor regulations and cannot be less than three calendar days. This leave can be added to the annual basic paid leave or taken separately.

note

The right to additional paid leave does not depend on whether the employee works overtime or goes home on time. If the employment contract reflects the condition of irregular working hours, then avoid providing extra days rest will not work.

Sometimes employees, believing that they have overworked quite a lot (for example, worked outside of working hours every day for a month), ask the employer for an additional paid day off. Their desire is understandable - they thought that they would work sometimes, and the employer involved them in such work all the time. But overtime hours in irregular working hours are not equal to overtime hours, in which the employee has the right to choose additional rest time instead of increased pay (Article 152 of the Labor Code of the Russian Federation). Since the legislation provides for only one type of compensation - additional leave, the employer is not obliged to satisfy such a request,

Attraction to work on holidays and weekends, to work at night

We repeat that many employers interpret Art. 101 of the Labor Code of the Russian Federation in their favor, believing that those working in irregular working hours should work "without days off and checkpoints." But this position is wrong. All the norms of the Labor Code apply to workers in the named regime, and they can be involved in work on a non-working holiday or day off only in compliance with the rules established by the code.

For example, in order to attract employees with irregular working hours to work on a weekend, you will have to strictly follow Art. 113 of the Labor Code of the Russian Federation and issue:

• written agreement;
• taking into account the opinion of the elected body of the primary trade union organization;
• notification of the right to refuse to work on a day off (for disabled people, women with children under the age of three) and familiarize employees with it against signature;
• order to work on a day off.

In addition, before issuing an order, you will have to make sure that employees have no medical contraindications for such work.

Finally, work on a day off must be paid according to the rules of Art. 153 of the Labor Code of the Russian Federation.

Note

Work on a weekend or non-working holiday is paid at least twice the amount:

• pieceworkers - at least at double piecework rates;
• employees whose work is paid at daily and hourly tariff rates - in the amount of at least double the daily or hourly tariff rate;
• employees receiving a salary (official salary) - in the amount of at least a single daily or hourly rate (part of the salary (official salary) per day or hour of work) in excess of the salary (official salary), if the work was carried out within the monthly norm of working hours, and in the amount of at least double the daily or hourly rate (part of the salary (official salary) per day or hour of work) in excess of the salary (official salary), if the work was performed in excess of the monthly norm of working time.

Like working on weekends, working at night for a worker with an irregular working day is a deviation from the norm. We recall that according to Art. 96 of the Labor Code of the Russian Federation, night time is considered from 22.00 to 6.00. Accordingly, involvement in work at this time should be properly executed and paid at an increased rate - a minimum of 20% is added to the salary or tariff rate(Article 154 of the Labor Code of the Russian Federation).

Summarize

If necessary, the irregular working hours in the organization can be established for individual employees. At the same time, a list of positions for which such a mode of operation is applied must be determined by a local regulatory act. The condition on the mode of operation, which differs from that established in the organization, must be fixed in the employment contract.

An irregular work schedule implies compliance with the established regime of work and rest at the enterprise, and, if necessary, an increase in the duration of work. Overtime is compensated by additional paid leave of at least three days.

The irregular working day is considered in the legislation as an alternative to the 8-hour working day. Management is free to decide whether it is enough for employees to be on site for the usual number of hours to complete all work, or they need additional time for certain tasks. If the need for this nevertheless arises, an irregular day is introduced for specific employees locally.

How the irregular working day is interpreted in the Labor Code of the Russian Federation

In the Labor Code of the Russian Federation, which is designed to regulate relations between management and subordinates, a lot of attention is paid to the establishment of norms of time spent at work that are not harmful to health, as well as norms of time that the body will have enough to recuperate, including an irregular working day.

What period the employee must stay within the company, performing his labor functions, is specified in the "Working hours" section. Within the framework of this concept, as well as the concept of "non-standard working day", it is fixed how many hours an employee must perform his duties throughout the day (in some cases, the term "shift" is used instead of a working day). There are also time limits for the workweek and year. Separately, there is the concept of "rest time". It adjusts the duration daily rest, weekends and holidays.

Standard working time is perceived as a 5-day week with an 8-hour working day. It is this rule that operates in the vast majority of enterprises and organizations, both public and private. But there is another mode of operation - an irregular working day (Article 101 of the Labor Code of the Russian Federation).

Irregular working hours are not introduced for the entire enterprise, but only for some individuals who simply need to work above the plan. It turns out that the whole company has, for example, a standard 5-day workday with a start at 9 am, and individuals work irregular hours. Their duties include showing up for work at, say, 6 a.m. or leaving the office after 10 p.m.

For many, irregular working hours are tightly intertwined with the concepts of "overtime" and "processing". But at the legislative level they are separated. Irregular working hours are a separate mode of work that allows the employer to employ specific workers outside of their standard schedule.

How many hours per week and year is it permissible to work in 2017-2018

In Russia, a working week of 40 hours is considered the norm (Article 91 of the Labor Code of the Russian Federation). If a we are talking about a 5-day week, and this is how they work at the vast majority of enterprises, then the employee has to work 8 hours daily. But the employer has the right to increase these norms.

This increase is of 2 types:

• attraction to overtime;
• stretching the schedule as part of an irregular working day.

The law introduced a restrictive framework for overtime work: it is impossible for such processing to exceed 120 hours per year. At the same time, it is forbidden to involve an employee in overtime work lasting more than 4 hours 2 consecutive days.

But in relation to the irregular working day, there are no clear time limits in the law. There are only requirements that are not expressed in a specific hourly equivalent. The regime of an irregular working day should be episodic, that is, there can be no talk of any system. In addition, the employer needs to really need the employee to perform his direct duties during irregular working hours.

Irregular working hours - what does it mean for an employee

An employee who has agreed to an irregular working day needs to know the following:

• The employer will not each time ask the consent of the employee to work an irregular working day. Such consent is obtained once and is most often reflected in the employment contract.
• Refusal to work an irregular working day can be equated to a refusal to fulfill one's labor duties. Although the courts have not yet developed a unified practice of resolving labor conflicts on this issue. At the same time, you need to understand that every day such a schedule is unacceptable. Irregular working hours are an episodic occurrence in daily activities.
• Even though this mode of working time is called an irregular working day, this does not mean that there should be no restrictions on its duration. The local act and the employment contract should describe the time frame of the working day and week. Irregularity lies in the difference between the schedule and the generally accepted in the company.
• A person who is called to work an irregular working day must understand that this is not possible on a permanent basis. The employee is obliged to come and go with the rest of the employees, and only if such a need arises to work overtime.
• An irregular working day cannot serve as a reason for the performance of additional duties that are not prescribed in the job description. Increased work time, not the list of duties.

An irregular working day gives the employee a bonus of at least 3 vacation days that are paid by the company. These days may be added to annual leave. Also, instead of vacation, you can receive monetary compensation. The same rules apply here as for annual paid leave. It’s just that there may not be additional payments for irregular working hours if the authorities do not order this.

What does irregular working hours mean for an employer?

A boss who has a need to establish an irregular working day for his employees must first arrange everything. To begin with, it is necessary to reflect the very possibility of attracting persons to work within the framework of an irregular working day in an agreement between the team. It also needs to specify a list of positions for which an irregular working day is required.

Then you need to conclude with each employee who holds a position from this list, an agreement on the introduction of irregular working hours, and in writing. Oral agreements do not apply in this case. The easiest way is to initially prescribe this in the employment contract, and if it has already been agreed, you will have to correct it by introducing a clause on irregular working hours.

The employer must understand that he does not have the right to force an employee to work an irregular working day every day or even every other day, since this mode is strictly episodic. At the same time, during the time worked out by an employee in excess of the norm, one cannot force him to take on additional functions. Non-normative working hours are used only for the performance of the direct duties of the employee.

The list of positions of employees with irregular working hours

The circle of persons who can work irregular working hours is established almost arbitrarily at the local level. There is no single list of positions with irregular working hours in the legislation. You can find only a few recommendations on this issue.

So, in the Decree of the Government of the Russian Federation “On approval of the rules for granting additional annual leave to employees with irregular working hours” dated 11.12.2002 No. 884, it is proposed to include the following positions in the list:

• Leading link. For example, a CEO can easily work irregular hours.
• Maintenance personnel. The same adjuster can come to work in advance during irregular working hours to check the equipment.
• Housekeeping staff. The departure of the caretaker to work off an irregular working day can simplify the work of all staff.
• Employees whose time spent at work is not accountable. The realtor can organize property showings during irregular working hours.
• Employees with an obligation to work certain time, but the period when this must be done is not specified. These include people of creative professions, for whom an irregular working day is quite the norm.

So employers can see some freedom in choosing positions with irregular working hours. In private structures, irregular working hours are established almost entirely at the request of the authorities. The main thing is that the list of positions should be fixed in writing.

The rules for regulating such a regime as an irregular working day are not clearly expressed in labor legislation. The very norms that regulate irregular working hours as a mode of work are scattered throughout the Labor Code of the Russian Federation, and not collected in a separate subsection. In this regard, when establishing and applying irregular working hours, special care must be taken to prevent violations of the law and not to confuse irregular working hours with overtime and overtime work.

For him, to perform overtime work (Article 99 of the Labor Code of the Russian Federation) or if he works on an irregular working day (Article 101 of the Labor Code of the Russian Federation). Let's say right away that workers do not always correctly understand what it is to work in irregular working hours. Quite often, they think that working in a named mode means that they can come to and leave work as needed. However, it is not. In the material, we will talk about irregular working hours and explain how work is built in this mode.

The working hours of creative workers differ significantly from the generally accepted eight-hour working day, as it depends on the schedules of performances, performances and rehearsals. In addition, such workers often have to go on tour to other cities. Nevertheless, the norm of working time, as a general rule, is the same for all workers, including creative ones, and cannot exceed 40 hours per week (Article 91 of the Labor Code of the Russian Federation), unless the creative worker belongs to the category of persons who are assigned a reduced working hours. weeks. Recall that these are (Article 92 of the Labor Code of the Russian Federation):

minor workers under the age of 16 (no more than 24 hours a week);

teenagers from 16 to 18 years old (no more than 35 hours per week);

employees - disabled people of group I or II (no more than 35 hours per week);

employees whose working conditions at their workplaces, according to the results of a special assessment of working conditions, are classified as harmful 3rd or 4th degree or dangerous working conditions (no more than 36 hours a week).

The norm of working time can be worked out under various modes of work, including irregular working hours.

The concept of irregular working hours

The definition of this mode of operation is given in Art. 101 of the Labor Code of the Russian Federation. This is a special regime under which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the working hours established for them.

Note that many employers, referring to this rule, force employees to work daily, covering overtime work with irregular working hours. However, labor legislation considers the irregular working day not as an extended working day compared to the generally established one, but as a special procedure for the distribution of working time within the working day and (or) working week. Its specificity lies in the fact that the employee in most cases is subject to the general mode of operation of the organization, but at the same time, he can stay at work to perform his labor functions in excess of a certain length of the working day (shift) or come to work before the start of work (shift) (Appeal ruling of the Moscow City Court dated February 14, 2017 in case No. 33-5691/2017).

Note: The nuance of working in irregular working hours is that the employee is involved in work in excess of the established norm of working hours sporadically, that is, infrequently.

That is, if in an institution the working day begins, for example, at 8.00, and ends at 17.00, then an employee with an irregular working day must come to work and leave it at the specified time.

Establishing irregular working hours does not imply flexible working hours. That is, if the organization starts working at 8.00, the employee cannot come, for example, by 9.00 or 10.00 and leave before the end of work. And this is confirmed by judicial practice.

So, an employee was reprimanded for being late for work by 25 minutes. He applied to the court with a demand to recognize the penalty as illegal, since he believed that there could be no delay, since he had an irregular working day. The court, refusing the employee, pointed out that the irregular working day implies work outside the established working hours and does not provide for the release of the employee from work within the established working hours, as well as the arbitrary independent determination by the employee of the time of coming to work and leaving work, the admission of being late to work (Appeal ruling of the Moscow City Court dated November 26, 2015 No. 33-44271/2015).

Who can set an irregular working day?

The employer independently determines the list of positions of employees who are assigned an irregular working day. It is important that such a list be enshrined in a collective agreement, agreement or local regulatory act, adopted taking into account the opinion of the employees' body.

Usually, such a list includes positions of employees whose work duration cannot be accurately calculated (heads of institutions, business personnel and technical service workers), as well as those who plan the implementation of the tasks at their discretion and whose working day is divided into intervals of unspecified duration.

Read also

• Features of irregular working hours
• What if the special assessment revealed harmful working conditions?
• A holiday is not a reason to rest
• Summarized accounting of working hours
• Engagement to work on the May holidays of workers who have an irregular working day

When determining the category of workers with irregular working hours, it should be borne in mind that such a category cannot include workers who, in accordance with Art. 94 of the Labor Code of the Russian Federation provides for the maximum norm of daily work (shift). These employees include, in particular:

employees aged 14 to 18;

disabled persons whose daily work duration is determined according to a medical report;

workers engaged in work with harmful and (or) hazardous conditions labor.

If employees work on a part-time basis, you can also set irregular working hours for them. A similar position is contained in the Letter of Rostrud dated April 19, 2010 No. 1073-6-1.

However, Art. 351 of the Labor Code of the Russian Federation, it is determined that the peculiarities of regulating the labor of creative workers of the organization of cinematography, the media, television and video crews, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, in particular, features regulation of working hours and rest time, wages, in accordance with Art. 252 of the Labor Code of the Russian Federation are determined not only labor law, but also collective agreements, agreements, local regulations.

An example of formalizing the establishment of an irregular working day and compensation for work in this mode can be Order of the FSS of the Russian Federation dated 06/22/2009 No. 146.

Processing compensation

Work in irregular working hours is compensated to the employee only by additional leave. Moreover, the right to such leave arises regardless of whether the employee was involved in overtime work or not. If the employment contract reflects the condition of irregular working hours, then it will not be possible to avoid providing additional days of rest.

According to Art. 119 of the Labor Code of the Russian Federation, the duration of such leave is determined by a collective agreement or internal labor regulations and cannot be less than three calendar days.

Additional leave for an irregular working day, it can be added to the annual basic paid leave (including extended), as well as to other annual additional paid holidays.

Note: rules for granting additional paid leave to employees with irregular working hours in federal public institutions determined by Decree of the Government of the Russian Federation of December 11, 2002 No. 884.

Question:

Is it possible to give employees an extra day off for overtime?

Answer:

Indeed, quite often employees ask the employer for a day off, especially for drivers who often have to linger after the end of work. However, processing during irregular working hours is not equal to processing during overtime work, in which the employee has the right to choose additional rest time instead of increased wages ( Art. 152 Labor Code of the Russian Federation). For an irregular working day, only vacation is due. Therefore, the provision of additional days off is at the discretion of the employer.

Question:

Do I need to pay compensation for unused vacation for an irregular working day upon dismissal of an employee who has not worked for a full year?

Answer:

Article 127 of the Labor Code of the Russian Federation obliges the employee to pay compensation upon dismissal for all unused vacations. This means that it is necessary to pay it, but for the number of days corresponding to the hours worked. For example, an employee is entitled to 4 days of additional leave, he worked for 8 months. Upon dismissal, he is entitled to compensation for 2.67 days (4 days / 12 months x 8 months).

In addition, we note that the employee has the right to receive compensation for unused days of additional leave not only upon dismissal, but also during work. This right is granted to him by Part 1 of Art. 126 of the Labor Code of the Russian Federation: part of the annual paid leave exceeding 28 calendar days, upon a written application of the employee, can be replaced by monetary compensation.

Establish an irregular working day

If the position for which the employee is employed provides for work in irregular working hours, before concluding an employment contract, he must be familiarized with local regulations that establish a list of positions with irregular working hours, as well as the type and amount of compensation for working in this mode. After that, an employment contract is concluded, which must include a condition for working in irregular working hours (part 2 of article 57, part 1 of article 100 of the Labor Code of the Russian Federation).

The next step will be the issuance of an order for employment, in the column "Conditions for employment" of which you need to indicate the establishment of an irregular working day. But it is not necessary to enter in the information on the definition of such a regime - the entry for employment is made according to general rules.

Note: if the employment contract contains a condition on working in irregular working hours, and the position is not included in the corresponding list, bringing to disciplinary action an employee who refused to perform work outside the normal working hours will be illegal (see, for example, the Appeal ruling of the regional court of 08.07 .2014 in case No. 33-1982/2014).

If the need for an irregular working day arose after being hired (for example, when transferring to a position that provides for work in such a mode), the employer must familiarize the employee with local regulations establishing a list of positions with irregular working hours, as well as the type and amount of compensation for working in this mode.

If such a regime is just introduced, you need to notify the employee about the change in working conditions. It is good if the employee agrees to the introduction of a new mode of work. And if not? In this case, the employer should be guided by Art. 74 of the Labor Code of the Russian Federation, which allows the employer to change the terms of the employment contract for reasons related to changes in organizational or technological working conditions (changes in equipment and production technology, structural reorganization of production, etc.).

The employee is notified in writing at least two months before the introduction of a new work regime, indicating the reasons why his position is included in the list of workers with irregular working hours. If the employer does not agree to work in the new conditions, the employer is obliged to offer the employee in writing another available job (both a vacant position or job corresponding to qualifications, and a vacant lower position or lower-paid job), which the employee can perform taking into account his state of health.

In the absence of the specified work or refusal of the proposed employment contract is terminated under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation.

In case of consent to new mode work is much simpler: an additional agreement is concluded to the employment contract. It indicates that from such and such a date a special working regime has been established for the employee, and also reflects the duration of additional paid leave and other changing conditions, if necessary. On the basis of the signed agreement, an order is issued to determine the regime of irregular working hours in any form.

Do I need to apply for employment outside working hours?

Article 101 of the Labor Code of the Russian Federation indicates that the involvement of an employee in work in excess of the norm is carried out by order of the employer, and does not specify in what form it should be done. Specialists in the field labor law recommend documenting engagements outside of normal working hours. However, the courts, when considering disputes related to the performance of work in the irregular working hours, do not exclude the oral form.

For example, the Supreme Court of the Republic - Alania, in Ruling dated February 19, 2014 No. 33-168 / 2014 in case No. 2-241 / 13, indicated that the decision to involve an employee in performing duties in excess of the established normal working hours can be taken and communicated to the employee direct (by the boss) orally, since the Labor Code of the Russian Federation does not provide for a specific form (oral or written), in which the employer gives an order to involve the employee in work outside of working hours.

Overtime accounting

If an irregular working day is determined for an employee, then work in excess of the established working hours is not reflected in the time sheet.

Some experts still believe that it is simply necessary to include processing in the time sheet, since according to Part 4 of Art. 91 of the Labor Code of the Russian Federation, each employer must keep accurate records of the working hours worked by each employee. However, an indication in the time sheet of processing can lead to the fact that irregular working hours are confused with overtime work and, accordingly, the latter is paid.

We believe that it is necessary to fix the processing time, only not in the time sheet, but in some other document, for example, the corresponding journal. Accounting for overtime can be useful in the event of an emergency: it will be possible to say for sure whether the employee was at the workplace or not.

Work on weekends and holidays

Sometimes employers believe that workers with irregular working hours can be involved in work on a weekend or holiday without any compensation. However, this is a mistake.

According to the general rule established by Art. 113 of the Labor Code of the Russian Federation, work on weekends and non-working holidays prohibited, with the exception of cases provided for by the Labor Code. Work in irregular working hours does not apply to such cases. Consequently, the involvement of such employees on a weekend or holiday is carried out according to the general rules: consent is asked (in some cases it is not necessary), certain categories of employees are familiarized with the right to refuse the named work, an order is issued and guarantees and compensations are provided - increased pay work or additional rest time.

The court came to a similar conclusion in the Appeal ruling dated 06/16/2016 No. 33-2113/2016.

Work at night

We recall that according to Art. 96 of the Labor Code of the Russian Federation, night time is considered from 22.00 to 06.00 and work at this time will be a deviation from the norm. This means that involvement in work at night must be properly executed and compensated for by increased wages in accordance with the requirements of Art. 154 of the Labor Code of the Russian Federation.

Summarize

Irregular working hours can be established for employees whose professions or positions are included in the list of professions and positions with irregular working hours. Such a list may be determined by the order of the employer or other local regulatory act of the institution or a collective agreement.

The employer is not obliged to pay extra for work in the irregular working hours, since this is not overtime work. In addition, the Labor Code determines that employees are guaranteed additional paid leave for working in irregular working hours. Failure to grant such leave may result in the employer Negative consequences up to administrative responsibility.

additional leave employment contract working conditions

Rostrud explained in detail what an irregular working day is and how it should be compensated in accordance with the current version of the Labor Code.
As stated in the Letter of 07.06.2008 N 1316-6-1, with an irregular working day, employees may be involved in work outside the working hours established for them not systematically, but from time to time and in certain cases.
This mode means that the employee can perform labor functions both before the start of the working day (shift) and after it ends. However, he is not required to work on weekly rest days and public holidays. And in the case of calling the category of employees in question to work on weekends and non-working holidays, the organization must comply with the general rules provided for in Art. Art. 113 and 153 of the Labor Code.
Rostrud also recalled that the current version of the Labor Code does not recognize overtime work during irregular working hours (as it was in the previous version). Therefore, such work is compensated only by additional leave. Its duration is determined in the collective agreement or internal labor regulations and cannot be less than three calendar days.

"Russian Tax Courier", 2008, N 17

THE MYTH OF THE IRREGULAR WORKING DAY

An irregular working day is a rather "ancient" Soviet invention. In reference legal systems without difficulty there are regulations that establish the rules for working in irregular working hours, which were adopted back in the 20s of the last century. For example, the Decree of the People's Commissariat of Labor of the USSR dated February 13, 1928 N 106 "On workers with irregular working hours", which has not yet been canceled. However, this regime has not lost its relevance: in many employment contracts one can read: "An irregular working day is set for the employee."

The main feature of the irregular working day is the right of the employer to require the employee to stay late at the end of the working day to perform urgent work. At the same time, neither the frequency nor the duration of urgent work is regulated by labor legislation, which, of course, plays into the hands of employers. Although an irregular working day worker works in excess of the standard working time established for him, that is, in most cases beyond 40 hours a week, he does not receive any additional payment or payment for these working hours.

Russians have long been accustomed to the fact that overtime work outside the normal working hours for workers with irregular working hours is not overtime work and is not subject to increased pay. They got so used to it that they did not even notice how the last rule, which gave at least some basis for such an assertion, was repealed.

However, this happened not so long ago - on October 6, 2006. On this day, the Federal Law of June 30, 2006 N 90-FZ "On Amendments to the Labor Code" came into force Russian Federation, declaring as invalid on the territory of the Russian Federation certain normative legal acts of the USSR and invalidated certain legislative acts (provisions of legislative acts) of the Russian Federation.
In principle, even before the adoption of Law N 90-FZ, there were no direct indications in the Labor Code of the Russian Federation that processing during an irregular working day is not overtime work and is not paid either in the usual or in an increased amount. This norm was also absent in the Labor Code of the Russian Federation, which was in force until February 1, 2002.

In the Labor Code of the Russian Federation, only one article mentioned irregular working hours - 68, which established the grounds for granting additional holidays. Its paragraph 3 obliged employers to provide additional leave to employees with irregular working hours. Clause 5 of the mentioned Decree of the NCP of the USSR N 106, which was in force both at that time and now, states that workers who have an irregular working day, like all other workers, are exempted from work on weekends and holidays. Work on such days is paid to employees with irregular working hours according to general rules.

According to Art. 101 of the Labor Code of the Russian Federation, as amended, in force until October 6, 2006, an irregular working day was recognized as a special mode of work, according to which individual employees could, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the normal working hours. At the same time, Art. 99 of the Labor Code of the Russian Federation defined overtime work as work performed by an employee at the initiative of the employer outside the established working hours, daily work (shift), as well as work in excess of the normal number of working hours for the accounting period.

As you can see, work with an irregular working day fully fit into the concept of overtime work, since the normal length of working time is the length of working time established for the employee.
However, Art. 119 of the Labor Code of the Russian Federation, which regulates the issues of granting additional leave to employees with an irregular working day, provided that in the event that leave is not granted, processing in excess of the normal working hours with the written consent of the employee is compensated as overtime work. Thanks to Art. 119 of the Labor Code of the Russian Federation, processing during an irregular working day was not paid as overtime work. If the surcharge should be made in case of non-provision of vacation, then its timely provision frees the employer from the need to pay for processing during irregular working hours.

All experts commenting on Art. 119 of the Labor Code of the Russian Federation, they agreed that with an irregular working day, processing in excess of the norm of working hours is generally compensated by the provision of additional leave. The employer's obligation to pay for processing as overtime arises only if additional leave is not actually granted, and the employee has written a corresponding application.

Thus, Art. 119 of the Labor Code of the Russian Federation, albeit indirectly, gave employers the right not to pay for processing during irregular working hours. However, on October 6, 2006 Law N 90-FZ came into force, which set out this article in new edition. From its text, the proposal to pay as overtime work for processing during an irregular working day in case of non-provision of vacation has disappeared. Now Art. 119 of the Labor Code of the Russian Federation simply indicates the need to provide employees with additional paid leave, who have an irregular working day. And Art. Art. 101 and 99 of the Labor Code of the Russian Federation are agreed with each other. Now they are talking about work outside the established working hours for the employee. Compare:
"Irregular working hours - a special mode of work, in accordance with which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the working hours established for them" (Article 101 of the Labor Code of the Russian Federation as amended by Law N 90-FZ ); and "Overtime work - work performed by an employee at the initiative of the employer outside the working hours established for the employee: daily work (shift), and in the case of summarized accounting of working hours - in excess of the normal number of working hours for the accounting period" (Article 99 of the Labor Code of the Russian Federation in version of the Law N 90-FZ).

It turns out that processing with an irregular working day is the same overtime work. Neither Art. 99, no art. 101 of the Labor Code of the Russian Federation do not establish any features of overtime work for workers with irregular working hours. Article 119 of the Labor Code of the Russian Federation no longer refers to payment for processing as overtime only in the event that additional leave is not provided. Why is it still considered correct not to pay for overtime during irregular working hours, but to compensate for it by providing leave?
Article 152 of the Labor Code of the Russian Federation obliges employers to pay for any overtime work at an increased rate, including work outside the established working hours with irregular working hours.

The condition on irregular working hours, contained in the employment contracts of employees, must be understood as the right of employers to involve employees in overtime work without observing the procedures established by Art. 99 of the Labor Code of the Russian Federation. Engaging workers with irregular working hours to work outside the established working hours for them does not require their written consent or the consent of the body of the trade union organization. Work outside the established working hours, as in the cases listed in Parts 2 and 3 of Art. 99, and in all other cases, it is carried out only on the basis of the order of the employer, if the employee has an irregular working day.

The inability to refuse to perform work outside the established working hours and the inconvenience associated with this are compensated by the provision of additional leave of at least 3 calendar days. But the worker's labor itself is subject to payment, and payment at an increased rate, as if it were produced under conditions that deviate from normal.

In the general case, the employee receives wages for all the hours worked by him. If any of these hours are overtime, they are paid at an increased rate. In addition, all hours worked are included in the length of service, giving the right to annual leave given to each employee. Meanwhile, a worker with an irregular working day "according to tradition" is deprived of money for processing. Not only does he not receive any extra pay for working under abnormal conditions, he does not receive any remuneration for this work at all, only vacations. This state of affairs seems unfair.

The considered problem cannot be solved without the participation of the courts. Only the court can give correct interpretation the norms of labor legislation regulating the issues of payment for processing during irregular working hours. The legislator seems to have already said his word.
I. Aleksandrov - Lawyer of the Center for Legal and Economic Consultations / "EJ-Jurist", 2007, N 35

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Irregular working hours - what does it meanfor the employee and for the employer? Read about this and the most interesting aspects in the installation and application of such a labor regime in this article.

How is an irregular working day determined in the Labor Code of the Russian Federation?

The main features of this working mode are as follows:

• NSD must be established for a specific employee, and the possibility of its establishment must be fixed in advance in the internal regulations of the enterprise;
• when establishing the NSD, this should be fixed in labor contracts for each employee involved;
• involvement in work beyond the usual working hours should be episodic and should be due to production needs;
• types of work performed in overtime should only be the same as those performed in the usual mode and provided for by the employment contract, job description and other similar documents;
• working extra time for employees in the NSD regime on working days is not considered overtime work;
• the establishment of the NSD has restrictions provided by law in relation to persons who are provided with additional social and state support:
  • minors;
  • pregnant women;
  • disabled people;
  • single parents of young children.

How is the non-standard mode of operation set?

Establishment for certain categories of NSD employees includes several mandatory steps:

1. A list of positions at the enterprise, for which NSD is expected to be filled, is being developed and approved. There is no specific list in the legislation, so employers need to do it themselves, based on the specifics of the activity and the functionality of the positions. According to statistics, they top the list of such positions and professions:
   • top management representatives;
   • employees whose work schedule is related to the work of management: assistants, secretaries, clerks, personal drivers, translators;
   • heads of accounting and financial services;
   • heads of departments with atypical work schedules (for example, warehouses or equipment adjusters);
   • technicians and adjusters;
   • technologists (especially in production with a continuous cycle);
   • logisticians and dispatchers;
   • workers responsible for safety and security.
2. A draft of the internal normative act on the establishment of the NSD for the categories of employees included in the list.
3. If the enterprise has representative body employees, the draft local act must be submitted to him for approval. The procedure is provided for in Art. 8 and 372 of the Labor Code of the Russian Federation.

For more information about approvals with the body representing the interests of employees, see.

1. A draft normative act agreed with the interested parties is approved and becomes a regulation internal regulations organizations. All employees must be familiarized with it against signature.
2. For already working employees, when they establish NSD, they make additional agreements to employment contracts. For newly accepted, the established NSD is immediately included in the contract, job description and an acceptance letter. Also new regulation is reflected in the collective agreement of the enterprise with employees.

What are the nuances of applying such a labor regime in practice?

The NSD regime contains a number of obvious advantages for the employer:

1. Overtime work is not considered overtime under NWP. This means, among other things, that:
   • there is no need to document every employee’s delay at work as required by Art. 99 of the Labor Code, - with a separate order for each case, the written consent of the employee, etc.;
   • there is no need to pay for processing at higher rates according to the norms of Art. 152 TK.
2. NSD makes it possible to simplify the accounting of working time for the relevant categories of employees, because:
   • no need to follow the processing limits allowed under Art. 99 TK;
   • Compensation for NSD does not depend on the number of overtime, so there is no need to keep their separate special records for calculating compensation (the number of hours actually worked in the usual manner is entered into the time sheet).

At the same time, NSD provides for a number of mandatory compensation points for employees on the part of the employer:

1. Establishment of monetary compensation (for example, salary supplements) for NSD. It is worth noting here that such an allowance should be paid in any case, regardless of whether the employee had actual processing under NSD in the billing period (month) or not.
2. Establishment of additional days of annual paid leave. According to Art. 119 of the Labor Code, there should be at least 3 of them, however, according to collective agreements, there may be more. Here the rule is the same as in the case of payroll: additional leave is provided if, under the terms of the contract, an NSD employee has, even if he actually worked according to the general regular schedule.
3. The NSD regime does not apply to work on weekends and holidays. According to the rules of Art. 111 and 113 of the Labor Code, weekends and holidays are set for all employees, so the rules for engaging in work and payment for it at this time are regulated separately.

IMPORTANT! If the NSD's assignment to the employee is not properly executed and/or the compensatory measures envisaged by the Labor Code are not fulfilled in relation to him, then any actual processing should be documented and compensated as overtime work. .

How and by how many hours can a standard working day be extended?

In this aspect, almost everything remains at the discretion of the employer. Labor legislation does not establish special regulatory standards, therefore:

• To additional work at NSD, you can attract both before and after the official working day.
• An instruction to be late (or to appear earlier) can be issued in any form, including verbal, and a separate consent of the employee is not required.
• The time spent on processing at NSD is not limited in any way, the employee works as many hours as required to complete the assigned task. The only condition: processing should not be everyday for a long time.

How to fix the transition to an irregular day in an employment contract - a sample

If the regulation on NSD is already in force at the enterprise, information about this is entered in advance in draft labor contracts with new employees who will work on the terms of NSD (according to the norms of Article 57 of the Labor Code of the Russian Federation).

As an example, consider a situation where NSD is an innovation for employees with whom there are valid contracts .

Example

Transit-logistic LLC is engaged in the storage and sorting of cargo for air transportation. In connection with the increase in the volume of activities and the acquisition of new warehouse space, LLC introduces a new work schedule for warehouse employees and irregular working hours for heads of departments. In this regard, the LLC amends the employment contract with the head of the sorting department A. A. Pryakhin.

Please note: 2 clauses of the contract have been changed. Directly relating to the mode of operation and establishing a standard work schedule. The item on the work schedule is a direct adherence to the norms of Art. 101 of the Labor Code, which establishes that NSD is a periodic involvement in work in excess of the established working hours. Therefore, in order to prescribe NSD in the contract, it is necessary to determine the established “normal” working hours.

It should also be noted that it is necessary to indicate in the agreement the date from which the changes take effect. Changes cannot take effect backdating. All employee overtime that took place prior to NSD's appointment must be treated as overtime and paid accordingly.

Results

Irregular working hours of employees are convenient for the employer. However, when establishing, one should take into account the nuances associated with its design, application and compensation measures for employees.