Holidays in shopping mall rf. Work on weekends and holidays labor code

Article 153 of the Labor Code of the Russian Federation with comments and changes for 2016-2017.

Commentary on Article 153 of the Labor Code of the Russian Federation:

1. Article 153 of the Labor Code of the Russian Federation provides that specific amounts of remuneration for work on weekends and non-working holidays are established in a collective agreement, a local regulatory act, an employment contract. This provision emphasizes that the dimensions established by the commented article are minimal. They can be increased by agreement of the parties to the social partnership or the parties to the employment contract. This can also be done in a local regulatory act, which in this case should be adopted taking into account the opinion of the representative body of workers.

2. Work on a weekend or non-working holiday (see commentary to article 113) must be compensated. At the choice of the employee, this can be either an increased payment in the amount provided for by the collective agreement, local regulatory act, labor contract (and if this issue is not resolved in them, in the amount specified in the article), or the provision of an additional day of rest.

3. As a general rule, the rest day is not subject to payment, however, in a collective agreement, a local regulatory act, an employment contract, more favorable rules for employees may be established.

The time of using the day of rest is determined by agreement of the parties.

4. It is generally accepted that for creative workers and professional athletes there are special rules for paying for work on weekends and non-working holidays, but this is not entirely true. Part one of Article 153 of the Labor Code of the Russian Federation establishes the minimum amount of payment, which under no circumstances can be reduced. Part two for all employees establishes the same procedure for determining specific wages for work on a non-working day, as for creative workers - in a collective agreement, a local regulatory act, an employment contract. The only difference is that for all employees, except for creative ones, the local normative act is adopted taking into account the representative body of employees, if it is created (Article 8 of the Labor Code), and for creative ones - solely by the employer.

The list of professions of creative workers has not yet been approved.

Breaks at work. Weekends and non-working holidays

Article 113. Prohibition of work on weekends and public holidays. Exceptional cases of involving employees to work on weekends and non-working holidays

See Encyclopedias and other comments on article 113 of the Labor Code of the Russian Federation

Work on weekends and non-working holidays is prohibited, with the exception of cases provided for by this Code.

Engaging employees to work on weekends and non-working holidays is carried out with their written consent if it is necessary to perform unforeseen work in advance, on the urgent performance of which the normal work of the organization as a whole or its individual structural divisions, an individual entrepreneur depends in the future.

Engaging employees to work on weekends and non-working holidays without their consent is allowed in the following cases:

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1) to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, industrial accident or natural disaster;

2) to prevent accidents, destruction or damage to the property of the employer, state or municipal property;

3) to perform work, the need for which is due to the introduction of a state of emergency or martial law, as well as urgent work in emergency circumstances, that is, in the event of a disaster or threat of disaster (fires, floods, famine, earthquakes, epidemics or epizootics) and in other cases, endangering the life or normal living conditions of the entire population or part of it.

Engagement to work on weekends and non-working holidays of creative workers of the media, cinematography organizations, television and video crews, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, in in accordance with the lists of jobs, professions, positions of these employees, approved by the Government of the Russian Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations, is allowed in the manner established by the collective agreement, local normative act, labor contract.

In other cases, involvement in work on weekends and non-working holidays is allowed with the written consent of the employee and taking into account the opinion of the elected body of the primary trade union organization.

On non-working holidays, work is allowed, the suspension of which is impossible due to production and technical conditions (continuously operating organizations), work caused by the need to serve the population, as well as urgent repair and loading and unloading work.

Engagement to work on weekends and non-working holidays of disabled people, women with children under the age of three years is allowed only if this is not prohibited by them for health reasons in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation. At the same time, disabled people, women with children under the age of three, must be familiarized against signature with their right to refuse to work on a weekend or non-working holiday.

Involvement of employees to work on weekends and non-working holidays is carried out by written order of the employer.

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 work on a weekend or non-working holiday was carried out within 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 hours.

Specific amounts of remuneration for work on a weekend or non-working holiday may be established by a collective agreement, a local normative act adopted taking into account the opinion of the representative body of workers, and an employment contract.

At the request of an employee who worked on a weekend or non-working holiday, he may be granted another day of rest. In this case, work on a weekend or non-working holiday is paid in a single amount, and the day of rest is not subject to payment.

Remuneration of work on weekends and non-working holidays for creative workers in the media, cinematography organizations, television and video filming groups, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, in accordance with lists of jobs, professions, positions of these employees, approved by the Government of the Russian Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations, can be determined on the basis of a collective agreement, a local normative act, an employment contract.

(as amended by Federal Law No. 13-FZ of February 28, 2008)

(see text in previous edition)

Registration and payment of work on weekends and non-working holidays

Activities on non-working days are prohibited by Russian law. But every rule contains exceptions.

It is possible to involve citizens in the labor process on weekends with their written consent in the event that an organization has unforeseen work in advance, the failure to perform which may adversely affect its activities in the future.

Dear readers! The article talks about typical ways to solve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

It's fast and for free !

Nuances of the Labor Code of the Russian Federation

Without the consent of employees, it is possible to involve them in work in 3 cases:

To prevent accidents and natural disasters.
To eliminate accidents and destruction of the property of the employer.
To work in a state of emergency or martial law, etc.

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Attracting to work on weekends servants of creative professions is carried out in accordance with the list approved by the Government of the Russian Federation.

Article 113 of the Labor Code prohibits the use of such labor by disabled people and women with children under 3 years of age whose health condition is unsatisfactory (according to a doctor's opinion). Therefore, these categories of persons must be notified of the possibility of waiving the obligation to work on non-working days.

The Labor Code enshrines the obligation of the employer to pay double the amount of weekend work. in particular:

piecework workers - according to double norms;
persons whose wages are calculated by hours and days - at double tariff rates;
employees whose salary is calculated on the basis of the established salary - at least the daily rate (in the case of labor within the monthly standard) and at least twice the daily rate (in the case of labor activity exceeding the monthly standard).

The Labor Code of the Russian Federation provides for the establishment of certain amounts of remuneration for the conditions under consideration by collective and labor contracts. as well as other local acts of the organization.

At the written request of the employee who worked on the weekend, the employer may provide him additional day off. In this case, the remuneration is paid according to the following scheme: the amount of payment for the non-working day worked is calculated in the usual amount, and the day of rest is not paid.

You can learn more about all the nuances of such a process from the following video:

Compensation calculation

On piece-rate payment

The driver Nikolaev N. receives 150 rubles for each trip. In the reporting month, he made 190 trips. Nikolaev was brought to work on 2 days off, during which he made 20 trips. Determine the amount of his salary for the past month:

(190-20) * 150 \u003d 25,500 rubles;
20*150*2=6,000 rubles.

The total salary of Nikolaev will be 31,500 rubles.

With hourly pay

Locksmith Kirillov G. worked 130 hours a month, including 8 hours on Sunday. The hourly rate of a locksmith is 250 rubles. Let's determine the amount of Kirillov's salary for the past month:

The total salary will be 34,500 rubles.

At daily rate

Painter Stepanov P. worked 20 working days per month, including 2 days on holidays. Daily rate - 2000 rubles. Determine the amount of wages for the past month:

The amount to be paid to Stepanov is 44,000 rubles.

With the salary system (exceeding the established norm of working hours)

Watchman L. Kopylov worked 150 hours, including 5 hours on a day off. His salary is 20,000 rubles. Taking into account that the standard working time in this case is 143 hours, and based on the conditions it is exceeded, the compensation for the day off is payable at double the rate.

Determine the hourly rate. There are 3 ways to calculate it:

the ratio of salary to the norm of working time according to the production calendar;
the ratio of salary to the norm of working hours according to the schedule of the employee;
the ratio of 12 salaries to the norm of working hours per year.

The legislation does not clearly regulate the method of calculation. We use method 3. There are 1974 hours in a 40-hour work week in 2016, so:

(20,000 rubles * 12 months) / 1974 hours \u003d 121.58 rubles / hour.

Holiday pay will be:

With a salary system (no excess of the established norm)

Technician Mashkina G. worked 143 hours, including 2 hours on a day off. Her salary is 15,000 rubles. Taking into account that the norm of working time in this case is 143 hours, and based on the conditions it does not exceed the standard, then compensation for work for the day off is subject to payment in the usual amount.

First you need to determine the hourly rate. It is calculated similarly to example 4:

15,000 rubles * 12 months / 1974 hours = 91.19 rubles / hour.

What is an act of admission to the production of work - see this article.

How to write an application for connection to electronic document management - read here.

Registration procedure

It is necessary to exclude persons who, in accordance with the Labor Code, cannot be involved in the output work process. These include:
- pregnant women;
- minors under the age of 18 (except for creative workers, whose categories are approved by the Government of the Russian Federation, as well as athletes).
Notifying employees in writing. It should contain information on the dates of entry to work of a certain person, indicating his full name, position, as well as the name of the structural unit in which the citizen will be recruited.
The letter is being drawn up in 2 copies- one for the employer with the employee's mark of familiarization, the other - for the employee himself. This document is subject to registration in the log of registration of notifications. In case of refusal of a person to familiarize, an act is drawn up.
Obtaining the consent of the employee to engage in work, which is drawn up in writing. This paper is not regulated by law, therefore, it can be drawn up in a simple written form.
Drawing up a draft order with its subsequent coordination with the primary trade union organization. It is important to note exactly what the order is the main document that serves as the basis for involving employees in such work. Therefore, it must contain information about the employee, days of going to work, as well as information about his familiarization with the document. Details of familiarization is located at the bottom of the order. The citizen puts his signature and date.
In order to avoid further disputes, it is recommended to include in the text of the paper information about the possibility to refuse such work. If you refuse to familiarize yourself with the document, it is recommended to record this fact in the act.
Registration of paper in the register of orders for personnel with further familiarization of all employees of the organization.
Marking data on work in the time sheet. Information in the time sheet is entered as follows: in the appropriate column opposite the name of the citizen, the code "BP" or "03" is indicated, the number of hours worked is entered.
Compensation for the corresponding work with monetary compensation or the provision of a day of rest.

Non-working holidays in the Russian Federation are:

January 1, 2, 3, 4, 5, 6 and 8 - New Year holidays (as amended by the Federal Law of April 23, 2012 N 35-FZ - Collection of Legislation of the Russian Federation, 2012, N 18, Art. 2127);

(Part one as amended by the Federal Law of December 29, 2004 N 201-FZ - Collection of Legislation of the Russian Federation, 2005, N 1, Art. 27)

If a day off and a non-working holiday coincide, the day off is transferred to the next working day after the holiday, with the exception of days off coinciding with the non-working holidays specified in paragraphs two and three of part one of this article. The Government of the Russian Federation transfers two days off from the number of days off coinciding with non-working holidays specified in paragraphs two and three of part one of this article to other days in the next calendar year in the manner established by part five of this article (as amended by the Federal Law dated April 23, 2012 N 35-FZ - Collection of Legislation of the Russian Federation, 2012, N 18, item 2127).

Employees, with the exception of employees receiving a salary (official salary), are paid additional remuneration for non-working holidays on which they were not involved in work. The amount and procedure for paying the specified remuneration are determined by the collective agreement, agreements, local regulations adopted taking into account the opinion of the elected body of the primary trade union organization, and the employment contract. The amount of expenses for the payment of additional remuneration for non-working holidays refers to labor costs in full ; as amended by the Federal Law of June 30, 2006 N 90-FZ - Collection of Legislation of the Russian Federation, 2006, N 27, Article 2878).

The presence of non-working holidays in a calendar month is not a basis for reducing wages for employees receiving a salary (official salary) . 2878).

For the rational use of weekends and non-working holidays by employees, days off may be transferred to other days by federal law or a regulatory legal act of the Government of the Russian Federation. At the same time, the regulatory legal act of the Government of the Russian Federation on the transfer of days off to other days in the next calendar year is subject to official publication no later than one month before the start of the corresponding calendar year. The adoption of regulatory legal acts of the Government of the Russian Federation on the transfer of days off to other days during the calendar year is allowed subject to the official publication of these acts no later than two months before the calendar date of the established day off (as amended by Federal Law of June 30, 2006 N 90-FZ - Collection of Legislation of the Russian Federation, 2006, N 27, item 2878; Federal Law of April 23, 2012 N 35-FZ - Collection of Legislation of the Russian Federation, 2012, N 18, item 2127).

(Parts three and four are considered parts four and five, respectively, on the basis of the Federal Law of December 29, 2004 N 201-FZ - Collection of Legislation of the Russian Federation, 2005, N 1, art. 27)

Non-working holidays in the Russian Federation are:

Employees, with the exception of employees receiving a salary (official salary), are paid additional remuneration for non-working holidays on which they were not involved in work. The amount and procedure for paying the specified remuneration are determined by the collective agreement, agreements, local regulations adopted taking into account the opinion of the elected body of the primary trade union organization, and the employment contract. The amounts of expenses for the payment of additional remuneration for non-working holidays are included in the cost of wages in full.

The presence of non-working holidays in a calendar month is not a basis for reducing wages for employees receiving a salary (official salary).

Commentary on Art. 112 Labor Code of the Russian Federation

1. Unlike other holidays, professional holidays and memorable dates, work is not performed on non-working holidays.

2. Engaging employees to work on non-working holidays is possible with the payment of additional remuneration in the amount and in the manner determined by this article, and only in exceptional cases (see commentary to article 113 of the Labor Code of the Russian Federation).

3. The transfer of weekends and non-working holidays to other days is carried out in the manner established by the Government of the Russian Federation.

Second commentary on Article 112 of the Labor Code

1. In addition to parts 1 and 2 of Art. 112 has been radically changed. Its new version provides details regarding remuneration for work on non-working holidays, the procedure for determining its size, attributing these payments to labor costs, the procedure for postponing days off if they coincide with non-working holidays.

2. The coincidence of a holiday non-working day with a day off entails the transfer of the day off to the next working day after the holiday. Decrees of the Government of the Russian Federation, which, as a rule, are adopted for the next calendar year, contribute to a uniform solution to the issue of postponing days off.

Article 112 provides that the transfer of days off to other days in connection with the coincidence of non-working holidays with them is carried out in order to rationally use these days by employees.

The commented article now provides that the regulatory legal act of the Government of the Russian Federation on the transfer of days off to other days in the next calendar year is subject to official publication no later than a month before the corresponding calendar year. The adoption of regulatory legal acts on the transfer of days off to other days during the calendar year is not excluded. It is allowed subject to the official publication of these acts no later than two months before the calendar date of the day off to be established. This rule will allow employees, their families and other citizens to plan and organize the use of free time on such days in advance.

3. The above rule for postponing days off is applied in organizations where work is not performed on these days.

If the regime of work and rest in the organization provides for work on holidays (in continuously operating industries, in organizations associated with daily services to the population, etc.), then days off are not transferred (see Clarification of the Ministry of Labor of the Russian Federation of December 29, 1992 N 5 // Bulletin of the Ministry of Labor of the Russian Federation, 1993, N 3).

4. In continuously operating organizations, as well as with a summarized accounting of working hours, work on holidays is included in the monthly norm of working hours (see clause 1 of the Clarification of the USSR State Committee for Labor and the All-Union Central Council of Trade Unions of August 8, 1966 N 13 / P-21 // Bulletin Goskomtruda USSR. 1966. N 10) (in accordance with part 1 of article 423 of the Labor Code of the Russian Federation, legal acts of the USSR are applied insofar as they do not contradict the Labor Code).

5. In accordance with Art. 113 of the Labor Code of the Russian Federation, work on non-working holidays, as a rule, is prohibited. Exceptions to this rule are contained in the same article.

In connection with the need to serve the population, for example, schedules for shops on holidays are established.

6. In Russia, where the population adheres to various religions, the establishment of an Orthodox holiday - the Nativity of Christ - has led to the need to secure the right of adherents of other religions to also have their own holidays. Moreover, it guarantees freedom of religion, including the right to profess individually or jointly with others any religion. There are no and cannot be any obstacles to the exercise of this right in the legislation: the relevant non-working days can be established by the constituent entities of the Russian Federation in connection with the holidays characteristic of other religions.

At the same time, it seems that the issue of non-working holidays introduced for religious reasons should be resolved at the level of federal law.

7. In addition to holidays, non-working days, holidays are also established in Russia that are not associated with the mandatory release of workers from work. First of all, these are numerous professional holidays. The list of holidays, professional holidays and memorable days celebrated in the Russian Federation in 2004 is published in the Bulletin of the Ministry of Labor of the Russian Federation (see Bulletin of the Ministry of Labor of the Russian Federation. 2003. N 10. P. 52; 2005. N 7. Art. 560).

The procedure for considering proposals from federal executive bodies on the establishment of professional holidays and memorable days was approved by Decree of the Government of the Russian Federation of March 16, 2000 N 225 (SZ RF. 2000. N 12. Art. 1299; 2005. N 7. Art. 560). In accordance with it, proposals on the establishment of professional holidays are submitted to the Government of the Russian Federation, taking into account consultations with all-Russian associations of employers, all-Russian associations of trade unions (part 4, article 3 of the said Resolution).

Exemption from work on such days is often provided for in industry agreements, collective agreements.

8. Part 3 of Art. 112 for the first time, payment for non-working holidays is provided not only for employees who receive wages based on a fixed salary (official salary), the amount of which was not and is not affected by the non-working days falling on the paid period, but also to those whose wages are based on the actual output, labor costs. The inability to work on legal non-working holidays (and work on these days is usually prohibited - see Art. 113) reduces their wages. What is unfair in comparison with those whose work is paid on the basis of salaries (official salaries) and for whom the presence of non-working holidays in the calendar month is not the basis for reducing wages (see part 4 of article 112).

New edition of Part 3 of Art. 112 provides that employees, with the exception of employees receiving a salary (official salary), are paid additional remuneration for non-working holidays on which they were not involved in work. The amount and procedure for its payment is determined by the collective agreement, agreement. These issues can be resolved by a local normative act, adopted taking into account the opinion of the elected body of the primary trade union organization (see Art. 372). These issues can be resolved in the employment contract. Apparently, with the help of an employment contract (that is, individually), these issues can be resolved in the absence of relevant norms in a collective contract, agreement, local normative act.

Introduction……………………………………………………………………..…….2

1. Weekends and non-working holidays in accordance with the Labor Code of the Russian Federation………...3

1.1. Features of the legal regulation of weekends and non-working holidays …………………………………………………...3

1.2. Cases of involving employees to work on weekends and (or) non-working holidays ……………………………….……...11

1.3. Rules for attracting and formalizing engagement to work on weekends and (or) non-working holidays ………………… 17

1.4. Pay on weekends and (or) holidays …………….20

Conclusion………………………………………………………………………….24

List of legal acts and literature…………………………...26

Introduction

Rest time - the time during which the employee is free from the performance of labor duties and which he can use at his own discretion. But Article 113 of the Labor Code of the Russian Federation provides for cases when the employer has the right to involve employees in work on weekends and non-working holidays. These cases are the object of my course work.

The purpose of writing a term paper is to conduct a comprehensive study of the legal regulation of leisure time under Russian law.

The achievement of this goal is facilitated by the solution of the following tasks:

Determination of the general theoretical provisions of weekends and non-working holidays in accordance with the Labor Code of the Russian Federation;

Analysis of the procedure for remuneration on weekends and non-working holidays;

1. Weekends and non-working holidays in accordance with the Labor Code of the Russian Federation.

1.1. Features of the legal regulation of weekends and non-working holidays.

Weekends are a form of rest time. Their distinguishing feature is that they are provided to employees for uninterrupted rest between working days.

The concept of "rest" in this case, in addition to the time needed for sleep, includes a sufficient amount of time during which workers could do whatever they wish, or, in other words, free time. The International Labor Organization (ILO) drew the attention of employers in its early years to the fact that the well-directed use of leisure time, by enabling workers to pursue more diverse interests and by providing a break from the stress of everyday work, can increase productivity and output, and thus can help you get the most out of your working day.

In Russian legislation, the regulator of working hours during the week is article 111 of the Labor Code of the Russian Federation, which guarantees the provision of weekly uninterrupted rest for all employees.

The duration of the working week is provided for by the working hours and is established by the collective agreement or the internal labor regulations of the organization in accordance with the Labor Code of the Russian Federation.

Sunday is proclaimed part of the second article 111 of the Labor Code of the Russian Federation as a general day off. Moreover, the second day off with a 5-day working week is established by organizations independently in their local regulations - usually either before or after Sunday, however, other options are possible, since part two of Article 111 of the Labor Code of the Russian Federation provides that both days off, “usually ", are provided in a row.

In accordance with the generally accepted ILO principle of providing workers with uninterrupted free time “to the extent possible”, employers are left with the choice of establishing days off, taking into account the requirements of various sectors of the economy, local customs and the differing abilities and skills of various groups of workers. This principle was reproduced in the third part of Article 111 of the Labor Code of the Russian Federation, which secured the right of employers in organizations in which suspension of work on weekends is impossible due to production, technical and organizational conditions, to provide employees with days off on different days of the week in turn to each group of employees in accordance with the rules of the internal labor organization schedule.

According to article 110 of the Labor Code of the Russian Federation, the duration of a weekly uninterrupted rest cannot be less than 42 hours. Legislative consolidation of the lower limit of this period of time reflects the seriousness of the state's attitude to the complex of various aspects of the physical, mental and social well-being of workers. After all, the lack of free time may ultimately have a negative impact on their participation in society and disrupt social contacts, which, in fact, constitute the activity of the state. In addition, the very size of the minimum period of uninterrupted free time reflects not only the social side of labor activity, but also the level of economic development of society - in developed countries it is more, and in developing countries it is less.

The beginning of the period specified in Article 110 of the Labor Code of the Russian Federation is calculated from the moment the employee finishes work on the last day of the calendar or working week (when working according to the shift schedule), and the end, respectively, from the moment he enters work on the first day of the new calendar or working week.

By the way, it is precisely for the purpose of complying with the established standard of time for weekly rest that part three of Article 95 of the Code establishes a limit on the duration of work on the eve of days off with a 6-day working week - no more than 5 hours.

Giving the day the status of an official holiday and, importantly, defining its nature as a non-working holiday is carried out in each country in its own way. In some countries, these issues are regulated by special regulations dedicated exclusively to holidays, and which are most often called “On Holidays” or “On Holidays”, in others, holidays are introduced and canceled by separate acts (for each specific day), in third - holidays are established by general regulatory legal acts regulating public administration.

In the Russian Federation, the list of public holidays is determined by article 112 of the Labor Code of the Russian Federation. After amendments to it by the Federal Law of December 29, 2004 No. 201-FZ, non-working holidays in the Russian Federation are:

Without going into an analysis of the legitimacy of these holidays from the point of view of the correspondence of the above articles of the Constitution of the Russian Federation and articles 5, 6 and 112 of the Labor Code of the Russian Federation, we note that article 112 of our main Code does not exhaust public holidays.

According to the second part of Article 112 of the Labor Code of the Russian Federation, if a non-working holiday falls on a day off, then the day off is transferred to the next working day after the holiday.

Here it is necessary to pay attention that for public holidays, which are established by the legislation of the constituent entities of the Russian Federation, the legislative acts that introduce these holidays provide for a similar transfer procedure: if the day off and holidays coincide, the day off is transferred to the next working day after the holiday.

The clarification, in particular, provides that the transfer of days off coinciding with holidays is carried out in organizations that use different work and rest regimes, in which work is not performed on holidays. This equally applies to work modes with both constant days of the week fixed on the days of the week, and with sliding days of rest.

For work and rest regimes that provide for work on holidays (for example, in continuously operating organizations or related to daily public services, round-the-clock duty, etc.), this provision on the postponement of days off does not apply.

In addition to the automatic transfer of days off, part five of Article 112 of the Labor Code of the Russian Federation provides that, for the rational use of weekends and non-working holidays by employees, the Government of the Russian Federation has the right to transfer days off to other days. A draft resolution on such a transfer is being prepared by the Russian Ministry of Health and Social Development. The Government of the Russian Federation considers it and either accepts the proposals of the Ministry and issues a resolution, or edits them.

In practice, the decision to postpone the day off is made by the Government of the Russian Federation when 1 working day is formed between the holiday and the day off and it is required to choose: in which direction to shift the uninterrupted rest of employees - i.e. start it already from the holidays or only from the weekend. For example, by Decree of the Government of the Russian Federation of December 27, 2004 No. 845 “On the transfer of a day off in 2005”, this year the day off from Saturday March 5 was moved to Monday March 7.

Here it is also necessary to pay attention to the Explanation of the Ministry of Labor of Russia dated February 25, 1994 No. 4 “On the duration of work on a day off transferred to a working day due to a holiday” (approved by the Resolution of the Ministry of Labor of Russia dated February 25, 1994 No. 19), according to which “in those cases when, in accordance with the decision of the Government of the Russian Federation, a day off is transferred to a working day, the duration of work on this day (the former day off) must correspond to the length of the working day on which the day off is transferred.

The duration of work on the eve of the holiday is not reduced in the cases established by the second part of Article 95 of the Labor Code of the Russian Federation. So, in a continuously operating organization, this is impossible due to the fact that with a decrease in the duration of work of one employee, the duration of another (shifter) increases, for the reason that the labor function of an employee cannot be terminated according to technical conditions (for example, the driver cannot stop the train) . It is impossible to finish certain types of work an hour earlier (for example, when the technological cycle of manufacturing products necessitates the presence of an employee at the workplace for a strictly established time).

From the first part of Article 152 of the Labor Code of the Russian Federation, it follows that the employer, when deciding on compensation for overtime, must pay or offer the employee the provision of additional rest time, and Article 95 of the Code, on the contrary, that he, without consulting the employee, must compensate for overtime by providing additional rest time , but to pay for processing, he will need the consent of the employee. Since article 95 of the Labor Code of the Russian Federation is prevailing to resolve the issue of compensation for processing on the pre-holiday day, employers should be guided by its norms.

The employer can obtain the employee's consent to "paid" compensation immediately before payroll. The amount of compensation is determined in the manner prescribed by part one of Article 152 of the Labor Code of the Russian Federation: overtime work is paid for the first 2 hours of work at least one and a half times, for subsequent hours - at least double the amount. What else the employer needs to think about on the eve of public holidays is the payment of wages. According to part eight of Article 136 of the Labor Code of the Russian Federation, if the day of payment coincides with a non-working holiday, payment of wages is made on the eve of this day. The transfer of payment of wages to post-holiday days is not provided for by law.

1.2. Cases of involving employees to work on weekends and (or) non-working holidays.

According to the first part of Article 113 of the Labor Code of the Russian Federation, work on weekends and public holidays is, as a rule, prohibited. At the same time, Article 113 of the Labor Code of the Russian Federation itself provides for exceptions to this general “rule”.

The first exception. According to the second part of Article 113 of the Labor Code of the Russian Federation, the involvement of employees to work on weekends and non-working holidays is carried out with their written consent in the following cases:

1) to prevent a production accident, catastrophe, eliminate the consequences of a production accident, catastrophe or natural disaster;

2) to prevent accidents, destruction or damage to property;

3) to perform unforeseen work, on the urgent implementation of which the normal work of the organization as a whole or its individual divisions depends in the future.

The list of these cases is closed and is not subject to broad interpretation.

Judicial practice shows that in order to legally engage in work on a weekend and non-working holiday, it is not enough for the employer to simply indicate the relevant case: for each group of circumstances listed in the article 113 of the Code considered in part two, there are legally significant criteria that determine the possibility of such involvement .

In general, these criteria are:

a) the reality (reality) of the event, the consequences that have occurred, as well as the causal relationship between them;

b) the need for an urgent response from the employer;

c) the adequacy of the response to the current situation.

Let us consider each group of circumstances indicated in the second part of Article 113 of the Labor Code of the Russian Federation in detail.

1. Prevention of an industrial accident, catastrophe, elimination of the consequences of an industrial accident, catastrophe or natural disaster. This group of cases consists of two independent subgroups:

1.1. Prevention of industrial accidents, catastrophes. For this subgroup, the necessary condition for recognizing the actions of the employer as lawful in attracting employees to work on a non-working day are:

a) the reality of the threat of an industrial accident or catastrophe;

b) the adequacy of the employer's response, that is, the effectiveness and appropriateness of the response chosen by the employer to eliminate this threat;

1.2. Elimination of the consequences of a production accident, catastrophe or natural disaster. In these cases, the employer must justify:

a) the reality (reality) of an industrial accident, catastrophe or natural disaster and the consequences that have occurred, as well as the causal relationship between them;

b) the need for an emergency response by the employer (i.e. the need to act immediately, for example, to prevent even greater negative consequences);

c) the adequacy of the response to the current situation (whether it was necessary to involve all the employees of the organization or, for example, it was possible to limit the use of only maintenance personnel).

2. Prevention of accidents, destruction or damage to property. For this group of cases, the legally significant conditions for attracting employees to work on weekends and (or) non-working holidays are:

a) objectivity (reality) of the threat of accidents, destruction or damage to property; b) the adequacy of the employer's response, that is, the effectiveness and expediency of the response method chosen by the employer to eliminate this threat.

For the cases specified in paragraphs 1 and 2, it must be borne in mind that under the prevention of accidents, catastrophes (as well as accidents), etc. is understood as a whole complex of organizational or technical measures carried out in advance and aimed at preventing the occurrence or minimizing the risk of the occurrence of the listed situations, as well as at preserving the health and life of people, reducing the amount of damage to the environment and material losses in the event of their possible occurrence. This means that if a dispute arises in connection with the application of part two of Article 113 of the Labor Code of the Russian Federation, the actions of the employer to attract employees to work on weekends and (or) non-working holidays will also be assessed from this point of view. Based on this, an employer who, for example, on June 12, attracted all employees to perform their labor duties due to a production accident that occurred in one of their workshops, will have to explain how the employees of the accounting department or the personnel training department eliminated the consequences of this accident.

3. The performance of unforeseen work in advance, on the urgent implementation of which the normal operation of the organization as a whole or its individual divisions depends in the future. This group of circumstances is most often arbitrarily interpreted by employers.

When engaging employees to work on a weekend and (or) non-working holiday for this reason, the employer must justify that:

a) the work to which he attracts workers could not be predicted and planned in advance, and, therefore, performed in advance;

b) the need for urgent execution of work became apparent only on the eve of a weekend or non-working holiday;

c) the normal work of the organization or its individual divisions depended on the immediacy of the execution of work.

The second exception. Part three of Article 113 of the Labor Code of the Russian Federation provides that it is allowed to involve creative workers of cinematography organizations, television and video filming groups, theaters, theater and concert organizations, circuses, mass media, professional athletes to work on weekends and non-working holidays.

The third exception. Part four of Article 113 of the Labor Code of the Russian Federation provides that engagement to work on weekends and non-working holidays is allowed with the written consent of the employee and taking into account the opinion of the elected trade union body of this organization. Thus, the employer can send employees to work on weekends and holidays in cases where it considers it appropriate and fulfills two conditions:

1) obtain the written consent of the employees;

2) hold preliminary consultations with the elected trade union body of the organization and take into account its opinion.

It follows that the involvement of workers in these types of work is not associated for the employer with additional actions - obtaining the written consent of the workers and taking into account the opinion of the elected trade union body. But at the same time, it cannot be said that in this case the employer is given the opportunity for arbitrariness and attracting all employees of the organization to work on holidays.

As already noted, part four of Article 112 of the Labor Code of the Russian Federation does not oblige employers to obtain the written consent of employees for each involvement of them in work on a non-working holiday. But still, they need to obtain consent in principle to involve employees in work on holidays, and such consent is formally obtained when hiring and concluding an employment contract. Having put his signature in the employment contract, which stipulates that the specifics of the work entrusted to the employee provides for work on weekends and non-working holidays in accordance with shift (work) schedules, the employee thereby gives his consent to work on holidays.

Despite the fact that the exception in question provides for the possibility of working on a non-working holiday according to simpler rules, payment for such work must be made in the manner established by Article 153 of the Labor Code of the Russian Federation.

1.3. Rules for attracting and processing attraction to work on weekends and (or) non-working holidays

Articles 112 and 113 of the Labor Code of the Russian Federation define the rules for attracting employees to work on weekends and non-working holidays.

Regardless of the circumstances in connection with which employees are involved in work on weekends and (or) non-working holidays, the employer is obliged to issue a written order (instruction). This follows from the sixth part of Article 113 of the Labor Code of the Russian Federation, according to which the involvement of employees to work on weekends and non-working holidays is carried out by the written order of the employer.

This requirement also applies to some cases specified in the fourth part of Article 112 of the Labor Code of the Russian Federation. If the procedure for attracting the main production personnel of continuous production organizations is defined in local regulations, then a specific list of employees working on weekends and non-working holidays is determined in work (shift) schedules.

As already noted, obtaining the written consent of the employee in the cases provided for by part four of Article 112 of the Labor Code of the Russian Federation is not provided for by the Code itself.

Based on the provisions of Article 113 of the Labor Code of the Russian Federation, the employer must:

a) obtain the written consent of employees to involve them in work on a weekend and (or) non-working holiday;

b) issue a written order (instruction) to involve employees in work on a day off and (or) non-working holiday.

Here, office work can be organized according to the following schemes:

Stage 1, the management (represented by the head of the organization) decides on the need to work on a day off and (or) a holiday non-working day. This decision can be communicated to the personnel department in various ways, for example, in the form of a separate order (instruction), which states the need and (or) a holiday, determines the groups of personnel (and not a specific list of names) that should be involved in work, and gives an order on obtaining the written consent of employees to work on weekends and (or) holidays. Such an order (instruction) may contain conditions for remuneration for work on weekends and holidays;

Stage 2: the personnel service, based on the decision of the management, begins the procedure for obtaining the consent of employees to work on a day off and (or) a holiday. When compiling the lists of employees who need to be involved, it is necessary to single out those categories for which the legislation provides for certain guarantees. Written consent can be obtained from an employee in a variety of ways. The most common is that an employee submits an application for consent to be hired on a weekend and (or) non-working holiday. To facilitate this procedure, the personnel department can make template application forms in which employees will only need to indicate the date and sign.

Stage 3: based on the received written consent to work on a weekend and (or) non-working holiday, the personnel department prepares a specific order, which contains an order to involve agreed employees to work on a weekend and (or) non-working holiday (a specific list is provided employees) and an order from the accounting department to pay for work on that day. It is desirable to formulate the first administrative paragraph of such an order as established in article 113 of the Labor Code of the Russian Federation.

It is possible to simplify the described procedure by omitting the 1st stage and immediately issue an order (instruction) to attract employees to work on a weekend and (or) non-working holiday. However, this does not exempt personnel officers from familiarizing employees with the order (instruction) and obtaining their written consent.

As for putting marks on familiarization with the order (instruction) on engaging in work on weekends and (or) non-working holidays directly in the text of the order (instruction), here one should take into account the position of state labor inspectors, which consists in the fact that the marks about familiarization with the order (instruction) does not mean the consent of the employee to work on a holiday. If one employee is involved in work on a holiday non-working day, this issue can still be resolved by putting a note in the order (instruction) by the employee, but not on familiarization, but on consent to work on a holiday.

1.4. Payment for non-working holidays.

From January 1, 2005, Article 112 of the Labor Code of the Russian Federation is applied in a new edition - with a new part three included in Article 112 by Federal Law No. 201-FZ of December 29, 2004.

According to the specified norm, “the wages of employees in connection with non-working days are not reduced”; “pieceworkers for non-working holidays are paid, the amount of which is determined by the local regulatory act of the organization, adopted taking into account the opinion of the elected trade union body, the collective agreement, agreements, labor contract.”

The first sentence of the new part three of Article 112 of the Labor Code of the Russian Federation should be regarded as a warning to employers against attempts to reduce the wages of employees receiving a monthly salary due to excessively long holidays. But the second proposal is a new provision for Russian labor legislation.

To resolve issues with the payment of such days to piece workers in the organization, a single local regulatory act, designed for repeated use, should be adopted. If the organization has an elected trade union body, such an act should be adopted taking into account its opinion; in the absence of such - by approval by the head of the organization.

Issues of payment to pieceworkers on non-working holidays can be resolved in a separate local regulatory act, for example, in the “Regulation on the payment of non-working holidays” or in the general local regulatory act in force in the organization on the remuneration of employees.

The new norm of Article 112 of the Labor Code of the Russian Federation provides for several ways to resolve the issue of paying non-working holidays and is not limited only to local regulations.

So, the employer can set the amount of payment to pieceworkers for non-working days in a collective agreement.

If this issue is resolved in an agreement that applies to the employer, then the adoption of a separate local act will not be required.

Finally, given that the changes to Article 112 of the Labor Code of the Russian Federation are of an indefinite nature, the employer, guided by the new part three of this article, can make appropriate changes to employment contracts with pieceworkers, setting directly in them the amount and terms of payment for non-working holidays.

However, it seems that this payment should be appropriately justified.

To resolve the issue of establishing the amount of this payment in a particular organization, it is necessary, first of all, to be guided by its financial capabilities and, in addition, proceed from its economic meaning: payment for non-working holidays is not wages, since the employee does not produce products, but a guarantee or rather compensation .

Consequently, even the most minimal payment will also be considered the fulfillment by the employer of the obligation provided for by part three of Article 112 of the Labor Code of the Russian Federation, provided that its amount is determined in the manner prescribed by law.

If there is a good financial base and a large number of accountants for piecework workers, average earnings can be maintained. However, this technique is acceptable for large organizations, whose accounting departments may perform the additional duty of calculating average earnings for each non-working holiday. For smaller organizations with a limited staff of accountants, this approach may seem overly burdensome.

Representatives of all-Russian associations of trade unions have prepared recommendations for employers to pay in the amount of 2/3 of the tariff rate (salary) - as for downtime for reasons beyond the control of the employer and employee.

Conclusion.

According to Article 37 of the Constitution of the Russian Federation - “everyone has the right to rest”, and along with fixing the main forms of rest (weekends and holidays, paid annual leave), it guarantees the duration of working hours established by federal law to a person working under an employment contract.

Article 106 of the Labor Code of the Russian Federation defines rest time as the time during which the employee is free from the performance of labor duties and which he can use at his own discretion.

Since weekly days off are mostly “tied” to the calendar week, in connection with this, situations arise almost every year in the country when days off coincide with non-working holidays.

Part two of Article 95 of the Labor Code of the Russian Federation proceeds from the fact that compensation for processing should begin with an offer to the employee of additional rest time. How long this rest should be - the named article is silent. However, Article 152 of the Code answers this question: “overtime work, instead of increased pay, may be compensated by providing additional rest time, but not less than the time worked overtime.” In order to avoid misunderstandings with employees, we recommend that you define the conditions for granting this time in the local regulatory act of the organization, including, for example, providing for the possibility of summing up these hours until a full day off.

Since both representatives of all-Russian associations of trade unions and representatives of all-Russian associations of employers are aware that the lack of clarity on the application of part three of Article 112 of the Labor Code of the Russian Federation can lead to labor conflicts, they decided to prepare a draft law on introducing appropriate changes to Article 112 of the Labor Code of the Russian Federation.

Regulations

1. The Constitution of the Russian Federation was adopted at a popular vote on 12/12/1993 // Rossiyskaya Gazeta dated 12/25/1993 No. 237.

2. Labor Code of the Russian Federation dated December 30, 2001 No. 197-FZ // SZ RF 2002. No. 1. Art. 3.

3. Commentary (item-by-article) to the Labor Code of the Russian Federation of official bodies / Ed. Yu.A. Vasina. – M.: Index Media, 2006. – P. 878.

4. Commentary on the Labor Code of the Russian Federation / Otv. Ed. Yu.P. Orlovsky. - M.: Infra-M, 2006. - S. 563.

5. Commentary on the Labor Code of the Russian Federation (item-by-article). New edition / O.V. Smirnov; ed. M.O.Buyanova, I.A.Kostyav. - 5th ed., revised. and additional -M: KNORUS, 2006. S. 315.

6. Commentary on the Labor Code of the Russian Federation (item-by-article) / Ed. ON THE. Diamond. - M.: TK Velby, 2005. - S. 824.

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New edition Art. 112 Labor Code of the Russian Federation

Non-working holidays in the Russian Federation are:

Employees, with the exception of employees receiving a salary (official salary), are paid additional remuneration for non-working holidays on which they were not involved in work. The amount and procedure for paying the specified remuneration are determined by the collective agreement, agreements, local regulations adopted taking into account the opinion of the elected body of the primary trade union organization, and the employment contract. The amounts of expenses for the payment of additional remuneration for non-working holidays are included in the cost of wages in full.

The presence of non-working holidays in a calendar month is not a basis for reducing wages for employees receiving a salary (official salary).

Commentary on Article 112 of the Labor Code of the Russian Federation

Article 112 of the Labor Code of the Russian Federation contains a list of non-working holidays.

Another commentary on Art. 112 of the Labor Code of the Russian Federation

1. Part 1 of Art. 112 of the Labor Code of the Russian Federation establishes all-Russian non-working holidays. Taking into account the delimitation of powers between the federal state authorities and the state authorities of the constituent entities of the Russian Federation in the field of labor relations and other relations directly related to them, the constituent entities of the Federation have the right to establish additional non-working holidays in addition to those established by Part 1 of Art. 112 of the Labor Code of the Russian Federation. This is of particular importance in a multinational and multi-confessional state, which is the Russian Federation. Replacing certain non-working holidays provided for by federal law with other days would be contrary to the Labor Code of the Russian Federation (see Article 6 of the Labor Code of the Russian Federation and commentary thereto).

2. In accordance with Parts 3 and 4 of Art. 112 of the Labor Code of the Russian Federation, non-working holidays are payable. For employees whose remuneration system provides for the monthly payment of a salary (official salary), if there are non-working holidays in a calendar month, the amount of wages for this month is not reduced. With other systems of remuneration (piecework, time-based, time-bonus, remuneration on a commission basis, etc.), for non-working holidays on which employees were not involved in work, they are paid additional remuneration. Its size and payment procedure are determined by the collective agreement, agreements, local regulations adopted by the employer, taking into account the opinion of the elected body of the primary trade union organization, and the employment contract.

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