An irregular working day is a concept in the Labor Code, which is quite common in practice and is applied within the framework of labor legislation. What does it mean and what features does it have? We will talk about all this in more detail below.
General definition
An irregular working day is such a special time set for the employee to fulfill his immediate duties. This concept is disclosed in the norms of the Labor Code, and is also regulated by them.
In fact, work in an irregular mode is presented so that the employee can be called at any time, outside the established general schedule. After that, for a certain time, he is obliged to perform all the tasks assigned to him in accordance with the agreement.
It is worth noting that despite the abstraction characteristic of the definition of “irregular working hours”, the employer does not have the right to exploit the work of a subordinate for a period which exceeds the length allowed by Russian labor legislation. Moreover, an employee should be involved only in case of industrial need, and not in a random manner.
It is important for any employer to remember that irregularity of the working day is a condition that must be spelled out in an employment contract or contract concluded when an employee is hired. If such a regime is not documented, and the fact of the actual performance of duties will be present, then this type of work on the basis of the provisions contained in the Labor Code of the Russian Federation will be considered overtime, to which completely different accounting and payment rules are presented.
Normative regulation
The basic concept of irregular working hours is spelled out in Russian law. In particular, its reflection is present in the provisions of the Labor Code of the Russian Federation (Article 101).
It is important to note that in more detail the features of attracting employees to perform their own duties within the framework of an irregular day are described in the text of the head of the Labor Code of the Russian Federation “Working hours”. In case of violation of the provisions prescribed by the said normative act, the culprit shall be held liable.
Features of abnormal mode
It is important to note that, like any other legal concept, an irregular working day has its own specific features specific to it.
First of all, it is important to pay attention to the fact that the irregular schedule is not a standard, but a special mode of work, to which only certain categories of employees can be involved, which we will talk about later. It is also important to remember that in order to attract a person to activity on the conditions under consideration, an appropriate order of the head of the enterprise is required, and it can be published only in cases of emergency. From this we can conclude that people can be involved only occasionally in work in the considered mode.
Who should not be involved in such work
The legislator has established a specific list of those people who cannot be involved in the performance of labor duties under the irregular regime.
So, on the basis of Art. 102 of the Labor Code of the Russian Federation, the regime under consideration cannot be established in any way at those enterprises that operate under the conditions of a flexible regime or where summarized records of time spent on the performance of labor duties are maintained (Article 104 of the Labor Code of the Russian Federation). In addition to all of the above, it is worth considering that certain groups of people cannot be involved in the mode of work under consideration, including:
- workers who are legally entitled to pay allowances for the complexity, harmfulness of work or its special regime;
- part-time workers;
- Persons caring for a seriously ill family member;
- persons with a disabled child under the age of 14;
- minors
- disabled people of the 1st and 2nd group, working in conditions of increased harmfulness.
Who can work on the specified conditions
In addition to determining an irregular working day, the Labor Code of the Russian Federation provides a list of those persons who may be involved in the performance of labor duties in an irregular regime. These include:
- those people who have the ability to distribute work at their discretion;
- representatives of business, managerial and technical personnel whose daily schedule cannot be accurately accounted for;
- those persons whose work process due to certain circumstances cannot have a certain duration.
In fact, under the conditions of the regime in question, journalists of publications, drivers, municipal employees, and directors of state institutions work. Practice shows that in the Ministry of Internal Affairs the concept of irregular working hours is also widely used.
The legislator observes that the list of those employees who may be involved in the performance of duties within an irregular working day must certainly be indicated in the organization’s schedule. It is important to note that Art. 101 of the Labor Code prescribes strict observance of this requirement only in relation to managerial positions, which makes it possible to conclude that ordinary employees can be involved in work in an irregular regime everywhere.
Reasons for establishing an irregular regime
As many legal practitioners say, the concept of irregular working hours is enshrined in the Labor Code, but presented rather vaguely, without a strict indication of many details. In this regard, in practice the application of legal provisions, a large number of controversial issues arise, one of which is the determination of those conditions under which it is possible to attract employees to work in the conditions under consideration.
Along with the concept of "irregular working hours", the Labor Code of the Russian Federation defines that this type of labor can be applied only in cases of industrial need. In other words, in the process of working in an enterprise or organization, a situation should arise in which there is an urgent need for the activities of a specific specialist or for the performance of certain professional actions. For all this, the legislator has not clearly defined specific conditions, on the basis of which it can be concluded that it is the employer who must determine whether the same production need arose or not.
In the works of most jurisprudence experts written on the subject under consideration, recommendations are often given regarding the improvement of this sphere of labor legislation, for which, in their opinion, it is necessary to formulate more clearly the concept of irregular working hours and eliminate the controversial generalizations of “production necessity” and “organizational need "
Frames to Watch
It should be noted that the legislator does not determine the strict permissible duration of work in an irregular regime. Nevertheless, in fact, one may encounter certain limitations in this area. In particular, the Labor Code indicates that the same employees cannot be involved in the irregular regime for several consecutive days or daily, as well as on an ongoing basis.
As practicing lawyers in the field of labor law note, thanks to the blurry designation of the concept of irregular working hours in Russian legislation, this regime is very convenient for the employer. This is expressed, at least, in order to attract an employee to activities on the specified conditions, although a manager’s order is required, in reality it can be presented in any form - written or oral, because there is no strict indication of this in the regulatory framework. In practice, there are often violations on this basis, which are expressed in non-coordination of the regime with the employee, as well as in the absence of actually issued orders.
About statutory compensation
In addition to what the concept of “irregular working hours” means, the content of the Labor Code of the Russian Federation also mentions the basic compensation for employees working in such a regime, which is additional leave (Article 119 of the Labor Code of the Russian Federation). It is important to note that the duration of such leave can be determined by the content of the employment contract or collective agreement.
It is important to note that only those employees whose position is drawn up as providing for an irregular schedule in the prescribed manner can require additional time for rest.
Weekend attraction
Like any other employees, those who work on irregular days, employers can engage in duties on weekends and holidays. It is worth noting that this group is fully covered by all the same norms of the Labor Code as are workers working under normal conditions. Based on this, it is worth considering that in order to legally attract such an employee, the employer must obtain his written consent, as well as a signature on the notice that the person has the full right to refuse the offer. Also, for each employee, a separate order of the appropriate content should be prepared.
Proper design
The definition of an irregular working day (according to the Labor Code) states that the case of applying the regime under consideration in relation to a specific position that is in the schedule (or a group of such) must be issued in a special manner. Let us consider it in more detail below.
Currently, a serious mistake of employers is that they consider the presence of an indication to the employee on the position of the staff list with a column, where the irregularity of her schedule is determined next to his position, a sufficient condition for engaging in work under the conditions of the regime in question. In fact, the process should be carried out completely differently, but only on the basis of the provisions presented in Art. 101 of the Labor Code of the Russian Federation.
In fact, the employer does not need only a list of full-time posts working under the irregular regime. So, the paragraph on the approval of the irregular schedule for a particular position must certainly be reflected in the content of the employment contract concluded in the process of hiring an employee. The employer must place emphasis on this item, as well as familiarize the employee with the content of local regulatory acts, in which this is also reflected. Moreover, it must be made familiar with the features of remuneration and the establishment of time for rest of the person taken on such a position.
After familiarization with the employee, an employment contract must be concluded. Further, an order is issued to the person who has been accepted, the content of which (in the column “Nature of reception and working conditions”) should indicate the particular characteristics of the position. Only after this should be completed filling out the work book and personal card of the employee.
Provided that when changes are planned to a previous position, the employee must be notified of this first. If there are no objections on his part to the existing labor contract, an additional agreement of the relevant content may be concluded between the parties.
In addition to all of the above, any employer should not forget that each employee’s exit in this order should be documented. It is important to note that in the absence of an indication of the special regime for a particular position in the work schedule, an employee cannot be held disciplinary liable for refusing to respond to a request for the actual performance of duties outside the working day.
Abnormal day and overtime
As practice shows, in fact it regularly happens that the concept of “irregular working hours” corresponds to the process of performing overtime work. If we consider this comparison at the level of the legislative framework, then it is completely unlawful, because the concept of overtime, presented in Art. 99 of the Labor Code of the Russian Federation, implies that the employee conducts activities in excess of the established duration of the schedule, as well as above the normal total number of days. As actual practice shows, an irregular day is universally equated with overtime work, which is fundamentally wrong, because when performing activities under the overtime schedule, the employer must provide the employee with additional guarantees.
It is important to note that among the modern population, an erroneous opinion wanders that, in the performance of assigned duties under an irregular regime, an employee has the full right to appear at the workplace only in those periods when there is work. In fact, this is not so, because the legislator determines that the group of employees under consideration must obey the generally accepted routine applicable at the enterprise. In addition, representatives of this group are also not exempt from compliance with labor discipline rules.