Recently, in practice, employers often have difficulties with employees who perform professional functions in an irregular working day mode. Compensation for such persons, according to the law, is made according to special rules. Meanwhile, not all workers understand them correctly. So, many employees begin to demand paid time off, believing that they have substantially reworked, in some cases they allow themselves to come to work later, arguing that delays at the enterprise in the previous days. Employers, in turn, do not always know for sure whether staffing requirements are legitimate. Further in the article, we will consider the features of an irregular working day, remuneration of labor under such a regime, and a number of other nuances associated with overtime work.
General Provisions
In accordance with Art. 97 TC, the employer has the right to attract an employee to carry out production tasks beyond the duration of the work shift established for him. The law stipulates 2 cases when this is permissible. Firstly, the employer can attract an employee to perform overtime work (article 99 of the Labor Code), and secondly, if the employee carries out labor activities on an irregular day (101 article of the Code). With the latter case in practice the most difficulties.
Definition
In article 101 of the Labor Code of the Russian Federation , the concept of an irregular regime is clearly disclosed. Under it is understood such working conditions under which individual employees by order of the employer may occasionally be involved in the performance of their duties beyond the duration of the work shift established for them.
Difficulty in practice
It should be noted that the personnel services and accounting departments of many enterprises often equate irregular working hours to overtime professional activities. In this case, they calculate payment according to general rules, in accordance with the system adopted by the organization. Meanwhile, the law clearly differentiates these regimes.
Overtime work, according to the Labor Code of the Russian Federation, is carried out on the initiative of the employer outside the shift duration set for the employee, or in excess of the normal number of hours for a specified accounting period (with a cumulative time recording mode). Accordingly, the establishment of an irregular day involves the creation of a special regime of labor activity. Equating these working conditions and overtime work (Labor Code of the Russian Federation, Article 99) is incorrect.
Nuances
An employee performing work on an irregular working day receives wages in the manner prescribed by the local acts of the enterprise. Moreover, he must obey the general regime established in the organization. For example, if at the enterprise the beginning of the working day is 9. 00, and the end is 18.00, then the corresponding employee must come and go at the indicated time. The main point in this mode is that an employee can be involved in activities beyond the norm of time only occasionally, if necessary. Although in practice there are employers who believe that employees who are on a non-standardized day schedule are required to come to work at 8:00 and leave at midnight. This is the wrong opinion.
Some employees believe that they can come to the company not at 9:00, as it should, but at 10:00, or leave when they see fit. It's a delusion. The fact is that the establishment of an irregular day regime does not imply the introduction of a flexible schedule. Accordingly, employees are not exempt from liability for violations of discipline.
To whom can irregular working hours be established?
The positions of workers engaged in labor activities in such conditions can be very different. Legislation does not limit the employer in choosing. The employer can independently determine the categories of employees for whom such a regime can be established. However, the employer must develop and approve a specific list of posts. It is included in the labor agreement, collective agreement or other local document of the enterprise.
The list may include positions of employees:
- The duration of work which cannot be accurately calculated. They, in particular, are directors of companies, business, maintenance personnel, technical employees, etc.
- Independently composing a plan for the implementation of tasks.
- The working day (shift) of which is divided into intervals of undetermined duration.
There is no need to include in this list all the positions stipulated by the staffing list, as the inspection bodies will consider such an action irrational.
The list of positions of employees with irregular schedules is consistent with the representative body - the trade union.
Example
Typically, the list is compiled in a separate document and is attached to the Rules of Procedure. The content should refer to a specific article of the TC, according to which a list is formed. To do this, you can use the following wording: "In accordance with the provisions of Article 101 of the Labor Code of the Russian Federation, due to production requirements, the list of posts with an irregular schedule includes the following posts:
- Sales Department: Head of Department, Manager.
- Administration: Head, Deputy Head, Ch. accountant, driver, secretary.
Employees of the indicated positions are assigned additional paid leave for irregular working hours (Labor Code, Article 119). Its duration is 5 calendar days.
Partial Day Abnormal
Is such a situation possible in practice? Quite. The legislation does not prohibit the establishment of irregular schedules for incomplete days. Moreover, Rostrud has repeatedly spoken out on this issue, pointing to the existence of such an opportunity.
Design Features
Many employers believe that acquaintance of an employee with a local act, according to which the corresponding position is included in the list for which a special work regime is established, is sufficient to periodically attract a person to work in excess of the established norm. At the same time, individual managers do not consider it necessary to draw up staff involvement and are limited to verbal orders.
I must say that the approval of the list of posts is extremely insufficient. Each time it is necessary to document the involvement of an employee in abnormal work. If, prior to enrolling in the state, it is known that this employee will have to work in this mode, before concluding an agreement, he should be familiarized with local acts establishing a list of relevant posts, type, amount of compensation for irregular working hours. After that, an employment agreement is drawn up. It compulsorily includes the condition on irregular working hours according to the Labor Code of the Russian Federation, leave for work in this mode, and other significant points. The need to include such a clause in the contract is stipulated by the provisions of Article 57 of the Code. According to the norm, the regime of work and rest is named among the essential conditions of the agreement if it differs from the general rule stipulated by the enterprise for personnel.
After the conclusion of the contract, an order is issued by the head of the organization. In it, in the column "Conditions for admission, the nature of labor activity" there should be a link to a special work regime. After that, an entry is made in the work book (without indicating an irregular day), as well as in a personal card.
Important point
In practice, it may turn out that the employee’s position is included in the list of posts with an irregular schedule already in the process of the person’s labor activity. In such situations, legislation requires that employees be informed of upcoming changes. Notification is carried out in writing 2 months before the introduction of the new regime.
The provisions of article 74 of the Labor Code allow changes in working conditions solely as a result of changes in the organizational or technological system at the enterprise. It is, in particular, about the introduction of a new production technology, structural reorganization, etc. The employer must have reasonable reasons to include a specific position in the list.
Employer Responsibilities
Not always the employee agrees to change his schedule. If an employee refuses to work on an irregular day, the employer must offer him in writing another vacant position corresponding to qualifications, a lower position or work paid less, taking into account the state of health of the employee. If there is no such position or job at the enterprise, in accordance with Part 1 of Article 77 of the Labor Code, the employment contract is terminated.
Specifics of execution of the order
In the conditions of an irregular day, the employee is involved in labor activities on the orders of the employer. However, the provisions of Article 101 of the LC do not contain an indication of the procedure for issuing such an order. Taking this into account, it can be concluded that the legislator fully permits the issuance of an oral order. Meanwhile, according to a number of lawyers, verbally ordering the involvement of employees should only be done when the organization has a clear time tracking system.
Fixation and payment of processing at irregular working hours
There are two opinions regarding the reflection of processing. Some experts believe that it is necessary to fix it. The fact is that in accordance with Part 4 of Article 91 of the Labor Code, the employer is required to keep records of the time worked by each employee. For this, as a rule, a report card is used. T-12 and T-13. In addition, in some enterprises information is reflected in magazines.
If the employee is delayed, most likely, the person responsible for entering information in the accounting documents will leave before him. Therefore, there will be no one to reflect the information. In such situations, it is advisable to issue a written order. You can also indicate in the job description or in the labor agreement that the employee, for example, will be delayed at work for 3 hours twice a month to draw up a report. It is not necessary to fix the condition that the employee must remain after the shift every day or even every other day. Otherwise, when an employee contacts the labor inspectorate, such an order will be declared unlawful.
Other experts believe that the indication in the report card on processing leads to the fact that irregular days and overtime work can be confused. If the accountant considers the mark in the document as processing data, he will charge an additional fee.
With an irregular working day, however, time tracking is necessary. This not only complies with the requirements of the law, but also has practical significance for the head of the enterprise. The fact is that according to the report card, the employer can track the frequency of going beyond the working day. Accounting is also very useful in case of any emergency. Information from the time sheet will allow you to accurately determine whether a particular employee was present at the enterprise at that moment or not.
With an irregular schedule, hours of processing are not paid. However, the legislation still provides guarantees for employees working in such conditions. Article 119 of the Labor Code stipulates that such employees are granted additional leave (paid), the duration of which is determined in the collective agreement or internal rules. Moreover, its duration should be at least 3 days (calendar). Vacation is quite possible to attach to the main or take separately.
The right to additional rest is granted regardless of the presence or absence of processing.
Controversial moment
In some cases, employees, believing that they have processed a lot (for example, performed production tasks outside the normal shift duration every day for a month), ask the employer for an additional paid day of rest. Of course, their desire is quite understandable. Employees believed that they would process only occasionally, and they were constantly attracted. However, the hours of processing under irregular conditions are not equal to overtime hours. In the latter case, the employee has the opportunity to choose either monetary compensation or additional rest (article 152 of the Labor Code of the Russian Federation). For irregular schedules, the law provides only one compensation - vacation. Accordingly, the employer may not satisfy the request for an additional paid day of rest.
Work at night, on weekends and holidays
Let us briefly consider how irregular working hours are paid in such cases. First of all, it should be noted that the attraction of employees to work at night, on holidays or on holidays, regardless of the regime, is carried out in compliance with the requirements established by the Labor Code. In particular, the provisions of article 113 of the Code are applicable. According to the norm, it is necessary:
- Obtain written consent from an employee.
- Take into account the opinion of the elected body of the union.
- To notify the employee of the right to refuse to work on receipt.
- Issue an order.
In addition, the employer must take into account the state of health of the employee. If the latter has contraindications, overtime work is not allowed.
With regard to payment, the double rate relies on:
- To the builders. The calculation uses double piecework rates.
- Persons whose work is paid at hourly (daily) rates. For them, the calculation is made using a double rate.
- Employees receiving salaries. He calculates at a rate of at least a single rate (hourly or daily) in excess of salary if the subject worked within the monthly norm, and if above it - in the amount of a double rate.
As for work at night, even with an irregular schedule, it is recognized as a deviation from the norm. Consequently, engaging in night work is paid in an increased amount - at least 20% is added to the salary (rate).
Features of overtime pay
They are mentioned in article 152 of the Labor Code of the Russian Federation. According to the norm, overtime work for the first 2 hours is paid in one and a half times, and for the subsequent time - in double. Specific dimensions can be established in a collective or labor agreement, a local act.
When calculating, the amounts of average monthly and average daily earnings are used. In Art. 152 a specific calculation procedure is not fixed. In this regard, as explained by the Ministry of Health and Social Development in the Letter of 2014 No. 16-4 / 2059436, the calculation can be carried out according to the rules of Art. 153. In accordance with it, the minimum rate of double payment is the double tariff without incentive and compensation payments. The hourly rate should be calculated by dividing the salary set for the employee by the average monthly number of hours depending on the length of the week. Using the average monthly and average daily earnings allows you to get the same amount for the same number of hours worked in different months.
According to Art. 152 TC, the cash payment can be replaced by additional rest at the choice of the employee. At the same time, its duration should be no less than the duration of overtime work.