An employee of a certain economic entity may be involved in the performance of work outside the main working time. This can be done by issuing an order on an irregular working day or by involving it in single-tasking with additional payment.
The concept of the phenomenon under consideration
An irregular working day is the establishment of a special regime in which some employees may be periodically involved in the performance of their duties outside the limits of the working day established for them.
Some employers misunderstand this interpretation, forcing periodically employees working in this regime to work overtime. Is this rightful?
So, irregular working hours: what does it mean? It should not be considered as an extended period of work, but as the possibility of its redistribution during the day, depending on the emerging need.
The specifics of the concept under consideration is that the employee must obey the working regime established in the business entity, however, if necessary, he may be delayed at the workplace or come to work until the start of a normal working day.
This is the redistribution of time during irregular working hours in the TC. However, this does not mean that you can come to work later, but leave earlier.
Arbitrage practice
It shows that in case of an irregular working day under the Labor Code of the Russian Federation, specific work is performed outside the established labor regime, but the employee who works on orders in this mode, as well as his own determination of the start and end times, are not allowed to be released. At the same time, being late for work is not allowed.
Workers with irregular working hours
For those posts to whom a similar regime will be established, a list is compiled, which is approved by the head of the economic entity. It is fixed in a local regulatory act (LNA) or a collective agreement or agreement.
As a rule, these include technical service workers, top managers and business personnel, that is, those who cannot determine the exact duration of their working day or whose tasks do not fit into the working time interval. They also include those of workers whose workday is divided into several periods of varying durations.
For some categories of employees, in particular creative ones, who take part in the creation or performance of various works, the regulation of issues of rest time and working day is carried out by labor legislation, and LNA, and agreements.
Categories of workers for whom the regime in question cannot be established
An irregular working day according to the Labor Code of the Russian Federation cannot be set for employees for whom the maximum daily shift rate is determined. These include:
- minors;
- employees whose work proceeds in harmful and / or dangerous conditions;
- employees who are trained and who have a sessional period at a given point in time.
For these categories, in addition to the latter, a reduced working week is set. So, for minors under the age of 16 years, the working week cannot exceed 24 hours, for them from now until they reach adulthood - 35 hours, the same duration is set for disabled people of the 1st and 2nd groups, for one hour it rises for workers employed in hazardous or hazardous (3-4th degree) jobs.
There is also a group of employees who need to obtain written consent for the introduction of an irregular day, and they must also have an appropriate medical report:
- disabled people;
- female representatives who have children under the age of 3 years;
- guardians of minors;
- single fathers.
Additional days for irregular working hours
The employee’s work in the considered mode under the law is compensated only by the fact that the employee is granted several days of additional leave. Most often, drivers are asked to provide additional days for irregular working hours (it should be clarified that such a regime can be introduced only for taxi drivers, freight forwarders and car drivers, and the usual operating mode should be set for all others).
However, this mode does not imply provision for time off, as with overtime work on a regular working day. A similar question can only be resolved by a senior manager in a business entity. The labor legislation establishes only additional leave for irregular working hours. Moreover, he is entitled to it in any circumstances, if this regime is prescribed in relation to a certain employee in the labor contract, regardless of whether he worked overtime during the calendar year or not. Its duration should be from 3 days. It can be attached to the annual main vacation or other additional.
At the same time, upon dismissal of an employee engaged in the considered mode of work, he needs to be compensated for the time actually worked in the prescribed mode, without providing additional leave for irregular working hours.
Similar compensation may be received by an employee who remains in the service. It can be obtained by any person whose long legal rest exceeds the minimum established by law in 28 calendar days, for those of which are included in excess.
Setting abnormal mode
Before an employee concludes an employment contract containing clauses on working hours, he must be familiarized with the LNA, which defines the positions that fall under this regime, the types and sizes of compensation. After that, a contract is concluded with him with the inclusion of the text on the non-standardized working day.
Upon completion of this action, an order is issued in which it should be indicated that the employee has been hired with the conditions of the regime in question. Record in the work book is made according to general rules without reflecting labor conditions.
An employee with whom a similar labor contract is concluded needs to know that the list of posts for which the regime under consideration can be applied has priority over the latter. If an employment contract has been concluded with him for the special regime under consideration, and his position is not listed, then in case of refusal to work overtime, bringing him to disciplinary liability is illegal. However, finding a position only in this list in the absence of the necessary entry in the employee’s employment contract also does not oblige him to anything.
Therefore, it is important for the employer, in order to avoid problems with inspection organizations, to observe for the employee involved in this mode of work, these two conditions. All working hours, including those considered, must be painted. As a rule, it is carried out in the internal labor regulations, which is one of the types of VLA.
Change in labor regimes
If there is a need for such a regime after the employee is hired, the employer should familiarize him with the VLA, in which the positions that fall under this regime, the types and sizes of compensation are determined. In case of disagreement of the employee, the introduction of such a regime under the Labor Code of the Russian Federation is carried out on the initiative of the head. Article 74 provided therein allows the employer to make changes for an irregular working day related to the dynamics of technological or organizational working conditions.
In this case, the employee must be warned that a new mode of work will be introduced for his position. This notification should be made no later than 2 months before the introduction of this regime. It indicates the reasons for the transfer of his position to the list with irregular working hours.
Employee consent to these conditions
In the event of a change - the non-standardized working day has replaced the standardized - the employee must agree or not agree to these conditions. In the first case, an additional agreement is concluded with his employment contract, which sets out a specific date when the work mode in question will be applied for this employee holding a certain position.
In addition, the number of days of additional legal rest, other conditions, if they have been amended, should be prescribed in it. This agreement is signed by both parties, after which a free-form order is issued defining the regime in question.
Worker's disagreement with the changed regime
In this scenario, the employer in writing must offer another job to the employee, which may correspond to his qualifications or be lower than her. Also, the proposed work may be lower paid in comparison with the previous one. It is proposed on the basis of a medical certificate on the employee’s health status. If the employee also refuses this work, the labor contract is considered to be completed.
Termination of this contract also occurs if the employer does not have any of the above work that he could offer the employee.
Notification form inconsistency
It was indicated above that all actions to introduce the regime in question in an economic entity should be reflected in the relevant documentation, that is, it can be assumed that a written form is mandatory. However, in the 101st article of the Labor Code it is written that it is possible to attract an employee to work at the end of a working day by order of the head without indicating the form. Judicial practice indicates that irregular working hours in the Russian Federation can be established orally. Such a decision was made, for example, by the Armed Forces of the Republic of SO - Alania in 2014.
Worker scheduling under review
As you know, in order for a salary to be accrued to a particular employee, a time sheet should be submitted to the accounting department, which reflects how many days and hours he worked for the past month. If the considered operating mode is applied, overtime work in this document on the accounting of working hours is not taken into account. Although some researchers believe that the norms of Art. 91 indicate that accounting for time classified as working should be accurate. But a complete indication of the hours can lead to the fact that in the accounting department these hours will be mistakenly defined as processing during normal operation, as a result of which the employee will receive additional money that is not due to him. Therefore, if you carry out the tabulation according to the exact amount of time spent, it is necessary that it is especially noted inside the time sheet that the work of this employee is not standardized.
Work on holidays and weekends at night
Work on these days is prohibited for everyone, except for those cases that are stipulated in the Labor Code of the Russian Federation. The considered operating mode does not apply to their list. Therefore, if it is necessary to carry out work on these days, it is necessary to obtain the consent of the relevant employees, they must be familiar with the fact that they have the right to refuse to perform it, if this does not follow, then an order must be issued, after which the salary is recalculated or leisure time available.
To night work refers to one of them, which is carried out from 10 hours in the afternoon to 6 hours before noon. Attraction to it should be formalized by a separate order and offset by additional salary increases.
Nuances
Workers outside the normal working day may not be involved in the work of the regime under consideration if the former are not within the scope of their work. As already noted, irregular working hours under the Labor Code of the Russian Federation can be applied to employees who work on a shortened week. But it cannot be applied to those of them whose work is carried out according to the reduced time of the working day.
A similar regime cannot be applied to all employees of a certain economic subject.
Differences between overtime work performed in the considered mode and with a normal working day
The main ones are as follows:
- Limitation of working hours - no restrictions are provided for the described working day, while processing with a standard working day is allowed no more than 4 hours for two consecutive days and should not exceed 120 hours per year.
- In the form of compensations, under the considered regime, only additional vacation can appear, while with a different type of processing, time off or material compensation can be provided.
- An employee’s consent to work at the end of a working day specified in the collective agreement with an irregular working day is not required, but with an ordinary one it is necessary.
- At the same time, the regime in question should be indicated in the employment contract, and during normal work this should not be done.
Does it make sense in this mode?
Labor activities carried out in this order are mostly positive for the employer. Employees, as a rule, do not welcome their transfer on an irregular day. Therefore, competent employers use methods of material incentives for workers who have a similar work regime. This is necessary to carry out already because tracking the work of an employee at a time when the main part of the economic subject has ended is quite problematic.
An employee, left to his own devices, can do the work without accelerating, but slowing it down, which will lead to a number of unpleasant consequences for the employer. Therefore, it is better to appoint responsible people to such posts. Better yet, use a regular working day for everyone, and pay employees for overtime work as necessary. However, due to the fact that in the latter case there are time limits, this is not always applicable.
Complaints about ongoing processing
As follows from the above interpretation in the shopping center of an irregular working day, work outside the normal working day can be carried out sporadically. However, many employers sin by this, and the latter grows into permanence. It is necessary to complain about this to labor inspectorates, and if this does not help, then to the courts.
First instances have the right to conduct checks of working conditions and modes, and if a discrepancy in working conditions is revealed, this will be reported to the head, who will have to adjust the employment standards of each employee.
Finally
In this article, we found out what this means - irregular working hours. Basically, for employees it is a labor duty for which additional payment is not provided for by law, and compensation is carried out only in the form of a few days of additional allowance. The employer also has its own problems in monitoring the work of this work. Therefore, if possible, a compromise option should be used, which provides for the usual mode of working with overtime work if necessary.