Holidays according to the Labor Code of the Russian Federation. Abstract: Weekends and holidays non-working days according to the Labor Code of Russia

Non-working holidays in the Russian Federation are:

If a day off and a non-working holiday coincide, the day off is transferred to the working day following the holiday, except for the 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.

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).

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 day off to be established.

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 related to 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 - 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.

At the beginning of summer, the Federal Service for Labor and Employment at a meeting of the working group on informing and advising employees and employers on compliance with labor laws and regulations containing labor law norms, Protocol No. 1 dated 02.06.2014<1>approved the Recommendations regulating the procedure for granting non-working holidays to employees.

Rostrud considered in some detail various issues of recruitment to work on holidays, touching, in particular, on the redistribution of working time and rest time in connection with holidays, recruitment to work on non-working holidays and the procedure for their payment.

It should be noted that recently the Federal Service for Labor and Employment regularly "pampers" employers with its recommendations. This time, the clarifications of Rostrud touched on non-working holidays. We will study what advice the department gave to employers.

Establishment of holidays

The employee has the right to rest, including that provided by the provision of non-working holidays. This is stated in par. 6 h. 1 tbsp. 21 of the Labor Code of the Russian Federation.

According to Art. 112 of the Labor Code of the Russian Federation, non-working holidays in the Russian Federation are:

Moreover, the above non-working holidays are established throughout the Russian Federation. According to Rostrud, this follows from Part 1 of Art. 13 of the Labor Code of the Russian Federation, according to which federal laws and other regulatory legal acts of the Russian Federation containing labor law norms are valid throughout Russia, unless these laws and other regulatory legal acts provide otherwise.

Note. Article 22 of the Labor Code of the Russian Federation states that the employer is obliged to comply with labor legislation and other regulatory legal acts containing labor law norms. This means that this list is mandatory for all employers. They are not entitled to approve and apply a schedule of non-working holidays that differs from that established in the Labor Code of the Russian Federation.

However, they have the right to expand it. Recall that employers adopt local regulations containing labor law norms within their competence in accordance with labor legislation. Moreover, these norms can improve the position of workers in comparison with the established ones (parts 1 and 4 of article 8 of the Labor Code of the Russian Federation).

In addition to national holidays, in the constituent entities of the Russian Federation Additional religious holidays may be set. True, the provision on additional holidays in the regions was not fixed by the Labor Code of the Russian Federation, but by another regulatory act - clause 7 of Art. 4 of the Federal Law of September 26, 1997 N 125-FZ "On Freedom of Conscience and Religious Associations".

For this, the following conditions must be met:

- the holiday has a religious orientation;

- a request for a non-working holiday was received from a religious organization;

- the decision was made by the state authority on the territory of a particular subject of the Russian Federation.

By the way, due to the fact that the norm was established by a different federal law, and not by the Labor Code of the Russian Federation, several years ago a dispute on this issue reached the Presidium of the Supreme Court of the Russian Federation.

Arbitrage practice. A citizen of Bashkiria disputed para. 3 and 4 paragraph 1 of Art. 1 of the Law of the Republic of Bashkortostan dated February 27, 1992 N ВС-10/21 "On holidays and memorable days, professional holidays and other significant dates in the Republic of Bashkortostan", according to which two non-working holidays are established in the Republic of Bashkortostan - Uraza Bairam and Kurban Bairam .

In Resolution No. 20-PV11 of December 21, 2011, the Presidium of the Supreme Court of the Russian Federation upheld the decision of the court of first instance and canceled subsequent court decisions, indicating that the norms of the current legislation do not exclude the right of the state authority of the constituent entity of the Russian Federation in the relevant territory to declare non-working (holiday) days about religious holidays.

A similar position was later confirmed by Rostrud in the Letter of September 12, 2013 N 697-6-1.

Redistribution of working time and rest time

As a general rule, if a day off and a non-working holiday coincide, the day off is transferred to the next working day after the holiday (part 2 of article 112 of the Labor Code of the Russian Federation).

In 2012, Federal Law No. 35-FZ of April 23, 2012 “On Amendments to the Labor Code of the Russian Federation and Article 122 of the Code of Civil Procedure of the Russian Federation” was adopted, which allowed the Government of Russia to postpone days off coinciding with the New Year holidays and Christmas , on other days in the next calendar year (part 5 of article 112 of the Labor Code of the Russian Federation).

The same rule of transferring a day off, if it coincides with a holiday, to the next working day, also applies to regional religious holidays. The fact is that the legislator does not establish specific features for them and does not provide for the possibility of introducing a different procedure.

To transfer, first, a federal law or a regulatory legal act of the Government of the Russian Federation must be adopted. Secondly, the deadline for its official publication must be observed.

For resolutions of the Government of Russia (part 5 of article 112 of the Labor Code of the Russian Federation):

- not later than one month before the corresponding calendar year;

- not later than two months before the calendar date of the day off to be established.

For example, Decree of the Government of the Russian Federation of May 28, 2013 N 444 “On the postponement of holidays in 2014” (hereinafter referred to as Decree N 444) was published on June 1, 2013 on the official Internet portal of legal information www. right. gov. ru.

Note. The rule on the postponement of days off that coincide with non-working holidays does not apply to all employers. In particular, it does not affect those who apply different modes of work and rest when work is carried out on non-working holidays. This procedure for transferring days off coinciding with non-working holidays applies to work modes both with constant days of the week fixed on the days of the week, and with sliding days of rest.

This is evidenced by clause 2 of the Procedure for calculating the norm of working time for certain calendar periods of time (month, quarter, year), depending on the established duration of working time per week, approved by Order of the Ministry of Health and Social Development of Russia dated August 13, 2009 N 588n (hereinafter - the Procedure).

In particular, as the Federal Service for Labor and Employment clarifies, if the suspension of work on non-working holidays is impossible due to production, technical and organizational conditions (for example, continuously operating production, daily services to the population, etc.), then the transfer of days off is not carried out.

In the Recommendations, the department emphasizes that It is the weekend that is transferred, not the holiday, since the latter, unlike the weekend, is usually tied to a specific date. If the holiday was initially set not on any date, but on the day of the week that is a day off, then the transfer of this day off is carried out on a general basis, that is, on the first working day following it.

As Rostrud explained, this rule matters for Correct determination of the duration of the vacation which falls during the holidays. So, non-working holidays falling within the period of the annual main or annual additional paid vacation are not included in the number of calendar days of vacation (part 1 of article 120 of the Labor Code of the Russian Federation). But weekends are included in the duration of the vacation, since it is calculated not in working days, but in calendar days (Article 115 of the Labor Code of the Russian Federation).

Example 1. Rostrud gives the following example of the application of this rule. In accordance with Decree N 444, the day off in 2014 was moved from Sunday, January 5 to Friday, June 13. If part of the employee's vacation fell on June 12 and 13, 2014, then June 12 as a holiday is excluded from its duration, and June 13 is taken into account as a regular day off and included in the duration of the vacation.

Note. In some cases, the main or additional leave is granted in working days and not in calendar days. For example, according to paragraph 2 of Art. 19 of the Law of 26.06.1992 N 3132-1 “On the Status of Judges in the Russian Federation”, judges are granted annual paid leave of 30 working days. Employees engaged in seasonal work, according to Art. 295 of the Labor Code of the Russian Federation, paid holidays are provided at the rate of two working days for each month of work. In such cases, the calculation of vacation days and the calculation of the average daily earnings for vacation pay is carried out according to a six-day working week (part 5 of article 139 of the Labor Code of the Russian Federation).

Holiday payment procedure

As noted by the Federal Service for Labor and Employment, rest on holidays does not entail a decrease in wages. At the same time, the payment for such days varies depending on the employer's remuneration system.

In part 4 of Art. 112 of the Labor Code of the Russian Federation states that if an employee receives a salary (official salary), then the presence of non-working holidays in the calendar month is not a basis for reducing his salary.

Other employees are paid additional remuneration for engaging in work on non-working holidays. According to part 3 of Art. 112 of the Labor Code of the Russian Federation, the amount and procedure for paying such remuneration should be determined by a collective agreement, agreements, local regulations adopted taking into account the opinion of the elected body of the primary trade union organization, and an employment contract. At the same time, the amounts of expenses for the payment of additional remuneration for non-working holidays are treated as expenses for wages in full.

Recruitment to work on non-working holidays

Labor legislation contains a general rule prohibiting work on non-working holidays (part 1 of article 113 of the Labor Code of the Russian Federation). Although this rule has a few exceptions.

First of all, Without employee consent it is allowed to engage in work on non-working holidays in emergency situations or in case of a threat of their occurrence:

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

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

- 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 situations, that is, in the event of a disaster or threat of disaster (fires, floods, famine, earthquakes, epidemics or epizootics);

- in other cases that endanger the life or normal living conditions of the entire population or part of it.

Secondly, With the written consent of the employee he can be involved in work on non-working holidays if there is a need to perform unforeseen work, on the urgent implementation of which the normal work of the organization as a whole or its individual structural divisions depends in the future (part 2 of article 113 of the Labor Code of the Russian Federation). Sample letter of invitation to work on non-working holiday.

Moreover, it is allowed to engage in work on non-working holidays and in other cases, but also with the written consent of the employee. If the company has an elected body of the primary trade union organization, then it is required to take into account its opinion (part 5 of article 113 of the Labor Code of the Russian Federation).

Thirdly, with regard to Certain categories of workers the procedure for engaging in work on non-working holidays can be established by a collective agreement, a local regulatory act, an employment contract (part 4 of article 113 of the Labor Code of the Russian Federation). These are 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. Their List was approved by Decree of the Government of the Russian Federation of April 28, 2007 N 252 (hereinafter - the List of creative workers).

Fourth, approved Categories of works, the production of which is allowed on non-working holidays, regardless of the presence of the above conditions (part 6 of article 113 of the Labor Code of the Russian Federation). In particular, these include:

- continuously operating organizations carrying out work, the suspension of which is impossible due to production and technical conditions;

- work caused by the need to serve the population;

— urgent repair and loading and unloading operations.

In addition, the personnel department needs to ensure that, regardless of the reasons for attracting personnel to work on non-working holidays, an appropriate written order from the employer is issued (part 8 of article 113 of the Labor Code of the Russian Federation).

Thus, as summarized by Rostrud, in order to attract employees to work on a non-working holiday, the following conditions must be met:

1) the existence of a legal basis for engaging in work on a non-working holiday;

2) the written consent of the employee, except when it is not required;

3) if there is an elected body of the primary trade union organization - taking into account its opinion;

4) written order of the employer.

Compensation for work on non-working holidays

The Federal Service for Labor and Employment recalls that labor legislation guarantees employees two types of compensation for working on a non-working holiday - wages of at least double the amount or an additional day of rest.

As a general rule, for work on a non-working holiday, which is a type of work in conditions that deviate from normal, the employee is entitled to appropriate payments provided for by labor legislation and other regulatory legal acts, a collective agreement, agreements, local regulations, an employment contract. Moreover, their size cannot be lower than those established by labor legislation (Article 149 of the Labor Code of the Russian Federation).

The minimum amount of surcharges is set by Part 1 of Art. 153 of the Labor Code of the Russian Federation in the following sizes:

- pieceworkers - not less than double piece 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 on within the limits of the monthly norm of working hours, and in the amount of at least double the daily or hourly rate (part of the salary (official salary) for a 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.

Arbitrage practice. In the Appellate Ruling of the Moscow City Court dated 06/04/2013 in case N 11-15193, the court, among other things, ordered the employer to recalculate wages, pay for work on weekends according to work schedules in shift work in accordance with Part 1 of Art. 153 of the Labor Code of the Russian Federation and accrue interest in accordance with Art. 236 of the Labor Code of the Russian Federation.

The second compensation option is to provide the employee with an additional day of rest, the so-called day off. But the Employer is not entitled to give the employee a day of rest instead of increased pay without his written consent. If the employee does not mind, then work on a weekend or non-working holiday is paid in a single amount, and the day of rest is not payable (part 3 of article 153 of the Labor Code of the Russian Federation).

As noted by Rostrud, the payment of a day off in a single amount means that an employee receiving a salary is paid a single daily rate in addition to it. In addition, in the month when the day of rest is used, wages (salary) do not decrease. It does not matter whether the employee takes a day of rest in the current month or in subsequent ones.

Arbitrage practice. The Supreme Court of the Russian Federation in the Decision of 08.02.2006 N GKPI05-1644 regarding the conditions of remuneration and the provision of another day of rest for work on a weekend or non-working holiday confirmed that, according to Art. 153 of the Labor Code of the Russian Federation, such work must be paid at least double the amount. At the same time, the employee has the right to use another day of rest for working on a weekend or non-working holiday. In this case, work on a non-working holiday is paid in a single amount, and the day of rest is not payable. Moreover, as the court pointed out, the requirements of Art. 153 of the Labor Code of the Russian Federation also apply to employees working in organizations with shift work.

A similar point of view was previously voiced by both the Ministry of Labor of Russia and Rostrud (see Letters of the Ministry of Labor of Russia of March 11, 2013 N 14-2 / ​​3019144-1157 and Rostrud of February 18, 2013 N PG / 992-6-1).

This order has two exceptions:

- in relation to certain categories of creative workers, the procedure for paying for work on non-working holidays can be determined on the basis of a collective agreement, a local regulatory act, an employment contract (part 4 of article 153 of the Labor Code of the Russian Federation);

- for employees who have concluded an employment contract for a period of up to two months, compensation is provided only in cash - at least twice the amount (Article 290 of the Labor Code of the Russian Federation).

Particular attention should be paid to the procedure for providing compensation to personnel in continuously operating enterprises (workshops, sections, units), as well as in the total accounting of working hours. In this case, special rules apply, established by the Decree of the State Committee for Labor of the USSR, the Presidium of the All-Union Central Council of Trade Unions of 08.08.1966 N 465 / P-21 “On approval of Explanation N 13 / p-21 “On compensation for work on holidays” (hereinafter - Explanation). Despite the fact that the act was adopted back in Soviet times, according to Art. 423 of the Labor Code of the Russian Federation, it operates in the part that does not contradict the Labor Code of the Russian Federation. What does the Explanation say? In continuously operating enterprises (workshops, sections, units), as well as with a summarized accounting of working hours, work on holidays is not compensated by another day off if it is included in the monthly norm of working hours. If work on a holiday was not included in the normal working time, then the rules apply as for the normal working hours: at the request of the employee, instead of increased pay, he can be given another day of rest, and payment will be made in a single amount (clause n. 1 and 3).

In addition, as noted above, Increased pay guarantees apply to all employees, regardless of working hours(five-day work week, shift work, etc.). Therefore, double payment is made to all employees for hours actually worked on a holiday. When a part of the work shift falls on a holiday, the hours actually worked on the holiday are paid double - from 0 to 24 hours (clause 2 of the Clarification).

Personnel workers should remember that when calculating overtime hours, work on holidays performed in excess of the norm of working hours should not be taken into account, since it has already been paid in double size (clause 4 of the Clarification, Decision of the Supreme Court of the Russian Federation dated November 30, 2005 N GKPI05-1341 , Determination of the Moscow City Court dated January 17, 2012 in case N 4g / 2-11787 / 11).

Note. Employers will have to provide an additional day of rest not only for work, but also for performing socially significant functions on non-working holidays. For example, if an employee donates blood and its components on a non-working holiday (part 3 of article 186 of the Labor Code of the Russian Federation). At the same time, the employer retains for the employee his average earnings both for the day of delivery and for the rest days provided in connection with this (part 5 of article 186 of the Labor Code of the Russian Federation).

Calculation of the norm of working hours

The duration of the working day or shift immediately preceding a non-working holiday is reduced by one hour (part 1 of article 95 of the Labor Code of the Russian Federation).

Arbitrage practice. In the Decision of September 29, 2006 N GKPI06-963, the Supreme Court of the Russian Federation noted that the length of the working day or shift before a non-working holiday is reduced for all employees, including those who have reduced working hours. This requirement, as noted by the Court, is mandatory for the employer.

The only exception is work in continuously operating organizations and in certain types of work, where it is impossible to reduce the duration of work (shift) on a pre-holiday day. In this case, the processing is compensated by providing the employee with Additional rest time or, with the consent of the employee, payment according to the norms established for overtime work (part 2 of article 95 of the Labor Code of the Russian Federation).

In addition, Rostrud referred to paragraph 1 of the Procedure mentioned above, according to which if a day off is transferred to a working day, then 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. This is stated in paragraph 1 of the Order.

Example 4. In the Recommendations, Rostrud gave the following example: Decree N 444 moved the day off from Monday February 24 to Monday November 3. Since the pre-holiday day of November 3 became a day off after the transfer, and the day off of February 24 became a working day, the working time on this day was reduced by one hour.

Guarantees for certain categories of employees

In conclusion, the Federal Service for Labor and Employment focused on certain categories of workers who are prohibited from being involved in work on non-working holidays. These include:

- pregnant women (part 1 of article 259 of the Labor Code of the Russian Federation);

- minors, with the exception of creative workers in the media, cinematography organizations, television and video crews, theaters, theater and concert organizations, circuses, etc., in accordance with the List of creative workers (Article 268 of the Labor Code of the Russian Federation).

Note. Exceptions should also include underage athletes. According to part 3 of Art. 348.8 of the Labor Code of the Russian Federation, the conditions for their work on weekends and non-working holidays are determined by collective or labor contracts, agreements, local regulations that may provide for work on such days.

1) disabled people (part 7 of article 113 of the Labor Code of the Russian Federation);

2) women with children under the age of three (part 7 of article 113, part 2 of article 259 of the Labor Code of the Russian Federation);

3) mothers and fathers raising children under the age of five without a spouse (part 3 of article 259 of the Labor Code of the Russian Federation);

4) employees with disabled children (part 3 of article 259 of the Labor Code of the Russian Federation);

5) employees caring for sick members of their families in accordance with a medical report (part 3 of article 259 of the Labor Code of the Russian Federation);

6) other persons raising children under the age of five without a mother (Article 264 of the Labor Code of the Russian Federation);

7) guardians and trustees of children under the age of five and disabled children (Article 264 of the Labor Code of the Russian Federation).

If you plan to involve such employees in work, you must, firstly, obtain written consent from them and familiarize them under signature with the right to refuse such work (see example 2). Secondly, you should make sure that they are not prohibited from working on such days for health reasons in accordance with a medical report (paragraph 2, clause 14 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated January 28, 2014 N 1 “On the application of legislation regulating the labor of women, persons with family responsibilities and minors”).

1. Is it legal to hire employees to work on weekends and non-working holidays?

2. What documents are used to document work on weekends and holidays.

3. What compensation is due to employees for working on weekends and holidays.

In accordance with the Labor Code of the Russian Federation, all employees have the right to rest on weekends and non-working holidays. Moreover, the legislation establishes a direct ban on working on such days. And only in exceptional cases, the employer can involve employees to work on weekends and holidays. At the same time, in order to prevent violations of labor laws, involvement in work on holidays and weekends must be properly executed and paid at an increased rate. How to do it right - read the article.

What days are weekends and non-working holidays

Weekend, that is, days of uninterrupted weekly rest, are established by the internal labor regulations (Article 111 of the Labor Code of the Russian Federation). That is, it is not at all necessary that the generally accepted days off Saturday and Sunday will be days off for a particular employee of a particular organization. For example, if an employee has a shift work schedule and his work shifts fall on Saturday and Sunday, then these days are working days for him, and no special work is required on these days. Or, if an employee has a six-day working week with one day off Sunday, then Saturday will be a regular working day for him, and the employer does not need to arrange and pay for work on such a day in a special way. I.e a special procedure for engaging in work and payment will be valid only if the employee goes to work on his day off, established by the internal labor regulations.

With public holidays the situation is different: they are the same for all employees, regardless of the work schedule. Respectively, work on such days in any case provides for increased pay and compliance with the procedure for attracting to work.

The list of non-working holidays is established by Art. 112 of the Labor Code of the Russian Federation and it is closed:

• January 1, 2, 3, 4, 5, 6 and 8 - New Year holidays;
• January 7 - Christmas;
• February 23 - Defender of the Fatherland Day;
• March 8 - International Women's Day;
• May 1 - Spring and Labor Day;
• May 9 - Victory Day;
• June 12 - Day of Russia;
• November 4 is National Unity Day.

In some cases, additional non-working holidays may be established at the level of a constituent entity of the Russian Federation in connection with a religious holiday.

! Note: If a non-working holiday coincides with a day off, then the day off is transferred to the next working day after the holiday (part 2 of article 112 of the Labor Code of the Russian Federation). The key point here is that it is transferred exactly day off day, and the holiday is tied to a specific date. For example, in 2015, a non-working holiday on May 9 fell on Saturday, so the day off was moved to May 11. Thus, if, according to the shift schedule, the employee had to work on May 11, work on such a day is processed and paid in the usual manner, as well as on other working days. If the work shift fell on May 9, that is, on a non-working holiday, then the employer will have to comply with the conditions for attracting an employee to work on such a day and pay an increased amount for work.

Conditions for employment on weekends and holidays

In most cases, in order to attract an employee to work on a weekend or non-working holiday, the employer must obtain consent from him, and in writing. And only in exceptional cases such consent is not required.

The written consent of the employee is not required.

1. If an employee is called to work on a weekend or non-working holiday in case of emergency(part 3 of article 113 of the Labor Code of the Russian Federation):

• to prevent a catastrophe, industrial accident or eliminate their consequences;
• to prevent accidents, destruction or damage to the property of the employer, state or municipal property;
• to perform work caused by emergency (fires, floods, earthquakes, etc.).

1. If an employee is involved on a non-working holiday in accordance with the established shift schedule(on their own shift) for the performance of work (Article 103 of the Labor Code of the Russian Federation, part 6 of Article 113 of the Labor Code of the Russian Federation):

• in continuously operating organizations;
• related to public services;
• urgent repair and loading and unloading operations.

The written consent of the employee is required

1. In addition to the above cases, the employer has the right to involve employees to work on weekends or non-working holidays to perform urgent, unforeseen work, on the implementation of which the normal functioning of the organization (IP) depends. In this case, the consent of the employee, drawn up in writing (part 2 of article 113 of the Labor Code of the Russian Federation), is necessary.

The most “closest” example to us: going to work as an accountant on the January holidays for compiling annual reports, payroll, contributions, etc. And although in most cases accountants, as people with a high degree of responsibility, are themselves the initiators of such "holiday" work, it is still necessary to issue a written consent. Otherwise, the employer faces liability for violation of labor laws.

1. Regardless of the reason for which the employer attracts employees to work on a weekend or non-working holiday, for certain categories of employees written consent is mandatory in any case. These categories include (part 7 of article 113, part 2, 3 of article 259, article 264 of the Labor Code of the Russian Federation):

• disabled people;
• women with children under the age of three;
• mothers and fathers raising children under the age of five without a spouse;
• guardians of children under the age of five;
• other persons raising children under the age of five without a mother;
• workers with disabled children;
• employees caring for sick members of their families in accordance with a medical report.

In addition to written consent, for the legal involvement of employees from the categories listed above, it is required (part 7 of article 113 of the Labor Code of the Russian Federation):

• notice of the right to refuse such work, with which the employee must be familiarized against signature;
• confirmation that the employee is not prohibited from working on such days for health reasons in accordance with the medical report.

! Note: Absence from work on a weekend or non-working holiday in the absence of the written consent of the employee (in cases where it is required) is not a disciplinary violation and does not entail any consequences for the employee.

Work ban on weekends and holidays

The Labor Code of the Russian Federation contains a direct ban on employing the following categories of workers on weekends or non-working holidays (even with their consent):

• pregnant women (part 1 of article 259 of the Labor Code of the Russian Federation);
• workers under the age of 18 (Article 268 of the Labor Code of the Russian Federation), with the exception of athletes and creative workers.

Written consent of the employee

The written consent of the employee can be issued as a separate document or contained in a notice of engagement to work on a weekend or holiday. There are no unified forms of such notification and written consent, so the employer has the right to develop and apply their own.

A notice of engagement to work on a weekend or non-working holiday may be addressed to each employee individually or to a group of employees, indicating their full names and positions. The second option - notification to a group of employees - is convenient when it is planned to involve several employees at once in order to "remember" to obtain the consent of each of them. The notice should include:

• the date of the planned employment;
• the reason for the need for such involvement;
• the fact of acquaintance of the employee with the notice;
• the fact of consent (or refusal) of the employee to work on a weekend or non-working holiday;
• the fact that the employee is familiarized with the right to refuse to work on a weekend or non-working holiday (mandatory for certain categories of employees);
• the form of compensation chosen by the employee: payment in an increased amount or an additional day of rest (indicating the date).

Issuing an executive order

Engaging employees to work on weekends and non-working holidays must be formalized in writing by the employer (part 8 of article 113 of the Labor Code of the Russian Federation). The mandatory form of such an order (order) is not provided, therefore, each employer develops it independently.

The order is drawn up on the basis of a document in which the employee's consent is expressed to work on a weekend or non-working holiday (a written consent or a notification containing such consent). The order states:

• Full name and position of the employee (employees) involved in work on a weekend or non-working holiday;
• date of recruitment;
• the reason for the need for such involvement;
• the form of compensation chosen by the employee: payment in an increased amount or an additional day of rest (with an indication of the date). If the form of compensation is not predetermined, then it can be issued by a separate order after completion of work.

Payment procedure for work on weekends and non-working holidays

For work on a weekend or non-working holiday, employees are entitled (Article 153 of the Labor Code of the Russian Federation):

• payment of at least double the amount;

• payment in a single amount with the provision of another day of rest.

Thus, the Code establishes only minimum payment amounts Therefore, the employer has the right to provide for increased wages. For example, instead of double pay, the employer may charge triple pay, and so on. Specific amounts of payment for work on weekends and holidays are fixed in a collective agreement, a local regulatory act (for example, the Regulations on wages) or in an employment contract.

! Note: The employee has the right, at his own discretion, to choose the form of compensation for working on a weekend or holiday: increased pay or pay in a single amount with the provision of another day of rest. An employer cannot "impose" a form of compensation. However, there is an exception to this rule: if the employee works on fixed-term employment contract concluded for a period of up to two months. In this case, for work on a weekend or holiday, the only type of compensation is provided for him - payment of at least double the amount (part 2 of article 290 of the Labor Code of the Russian Federation).

So, we found out that work on a weekend or holiday is paid to the employee at least twice the amount or in a single amount with the provision of another day of rest, which is not paid separately. At first glance, everything is quite simple, but in practice some difficulties may arise, since the specific procedure for calculating the “increased” payment depends on the wage system used.

For clarity, the features of calculating payment for work on a weekend or non-working holiday are reflected in the table.

! Note: If part of the working day (shift) falls on a weekend or non-working holiday, then the hours actually worked on that day are paid double. But if the employee chose another day of rest as compensation, then he is given whole day of rest regardless of the number of hours worked on a weekend or holiday (Rostrud letters dated 17.03.2010 No. 731-6-1, dated 03.07.2009 No. 1936-6-1, dated 10.31.2008 No. 5917-TZ).

As a rule, the main difficulties are caused by the calculation of payment for work on a weekend or non-working holiday, if the employee has a salary. In this case, as can be seen from the plate, it is necessary to take into account the monthly norm of working time. Monthly working hours is calculated according to the schedule of a five-day working week with two days off on Saturday and Sunday based on the duration of daily work (shift) (Order of the Ministry of Health and Social Development of the Russian Federation of August 13, 2009 No. 588n). For example, if a worker has a 40-hour working week, then the monthly norm of working time in August 2015 is 168 hours (40 / 5 x 21).

In more detail, we will consider the procedure for calculating the payment for work on a weekend or holiday using examples.

Example 1. Work on a weekend or non-working holiday is carried out within monthly working hours.

Yu.A. Mikhailov, the operator of Pribor LLC, who works in shifts, has a 40-hour working week and a salary of 41,750 rubles. per month. In June 2015, in accordance with the schedule, Mikhailov Yu.A. worked 20 shifts (8 hours each), while one of them fell on a non-working holiday on June 12. Let's calculate the employee's salary for June 2015:

• The hourly rate in June is: 250 rubles. (41,750 rubles / 167 hours)
• Number of hours worked in June: 160 hours (8 hours x 20 shifts)
• June salary: 40,000 rubles. (250 days x 160 hours)
• Payment for a non-working holiday in excess of salary: 2,000 rubles. (250 rubles x 8 hours)
• Total salary for June: 42,000 rubles. (2,000 rubles + 40,000 rubles)

In this case, work on a non-working holiday is not additionally paid, that is, the salary for June will be equal to the salary and will amount to 40,000 rubles.

Example 2. Work on a weekend or non-working holiday is carried out over monthly working hours.

To the accountant of OOO "Balance" Voronina E.V. a 40-hour working week was established and a salary of 25,050 rubles. per month. In June 2015, all working days were fully worked out, in addition, Voronina E.V. was involved in work on a non-working holiday on June 12 (8 hours). Let's calculate the employee's salary for June 2015:

1. The employee chose an increased pay for work on a non-working holiday without providing another day of rest.

• Monthly norm of working time in June: 167 hours (40 hours / 5 days x 21 days - 1 day (pre-holiday))
• The hourly rate in June is: 150 rubles. (25,050 rubles / 167 hours)
• Number of hours actually worked in June: 175 hours (167 hours + 8 hours)
• Salary for June: 25,050 rubles. (150 rubles x 167 hours)
• Payment for a non-working holiday in excess of salary: 2,400 rubles. (150 rubles x 8 hours x 2)
• Total salary for June: 27,450 rubles. (2,400 rubles + 25,050 rubles)

1. The employee chose to provide another day of rest for work on a non-working holiday.

• Payment for a non-working holiday in excess of salary: 1,200 rubles. (150 rubles x 8 hours)
• Total salary for June: 26,250 rubles. (1,200 rubles + 25,050 rubles)

! Note: If an employee worked overtime on a non-working holiday (for example, instead of 8 hours he worked 9 hours), then all overtime hours are also considered holiday work. At the same time, for the entire time of work on a holiday, only one type of surcharge is charged - for work on a non-working holiday. At the same time, it is impossible to accrue additional payment for work on a holiday and for overtime work.

Income tax, personal income tax, contributions from pay for work on weekends and holidays

Accruals to employees for work on weekends and non-working holidays are part of the salary, therefore, the following amounts:

• are included in the employee's income and are subject to personal income tax in the general manner (clause 6 clause 1 article 208, clause 1 article 210 of the Tax Code of the Russian Federation);
• are subject to insurance premiums to the PFR, FFOMS, FSS in full (part 1 of article 7 of Federal Law No. 212-FZ, clause 1 of article 20.1 of Federal Law No. 125-FZ);
• are taken into account in income tax expenses and under the simplified tax system as part of labor costs (clause 3 of article 255, clause 6 of clause 1 of article 346.15 of the Tax Code of the Russian Federation).

At the same time, the minimum amount of payment for work on a weekend or non-working holiday, accrued in the amounts established by the Labor Code of the Russian Federation, is unambiguously included in expenses for taxation purposes: double if another day off is not provided, and in a single amount if another day off is provided.

As for the inclusion of increased payment in expenses, in the part exceeding the minimum established by the Labor Code of the Russian Federation, there is no unambiguous position of the regulatory authorities on this matter. Thus, the Ministry of Finance spoke out against including in expenses the amounts of payment for work on weekends and holidays in excess of those established by the Labor Code of the Russian Federation (Letter of the Ministry of Finance of Russia dated 04.03.2005 No. 03-03-01-04 / 1/88). However, the Federal Tax Service considers it possible to include in tax expenses the full amount accrued for work on weekends and holidays (Letter of the Federal Tax Service of Russia dated April 28, 2005 No. 02-3-08 / 93). Thus, the taxpayer has the opportunity to defend the legitimacy of including in the expenses the entire amount accrued for work on a weekend or holiday. At the same time, do not forget that the costs must be justified and documented. I.e increased payment must be fixed in internal administrative documents, and the need to involve reflected in the relevant order.

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Normative base

1. Labor Code of the Russian Federation
2. Tax Code of the Russian Federation
3. Federal Law No. 212-FZ dated July 24, 2009 “On Insurance Contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund”
4. Federal Law No. 125-FZ of July 24, 1998 “On Compulsory Social Insurance against Occupational Accidents and Occupational Diseases”
5. Order of the Ministry of Health and Social Development of the Russian Federation of August 13, 2009 No. 588n “On approval of the procedure for calculating the norm of working hours for certain calendar periods of time (month, quarter, year) depending on the established working hours per week”
6. Letter of the Ministry of Finance of Russia dated March 4, 2005 No. 03-03-01-04/1/88
7. Letter of the Federal Tax Service of Russia dated April 28, 2005 No. 02-3-08/93
8. Letters from Rostrud

• dated 17.03.2010 No. 731-6-1,
• dated 03.07.2009 No. 1936-6-1,
• dated October 31, 2008 No. 5917-ТЗ

How to get acquainted with the official texts of these documents, find out in the section

The shortened pre-holiday day according to the Labor Code of the Russian Federation is the day immediately preceding a non-working holiday. As a general rule, the duration of a working day or shift on a pre-holiday day, according to labor legislation, is reduced by one hour (Article 95 of the Labor Code of the Russian Federation). And if the holiday is preceded by a day off - according to the calendar or work schedule, then the duration of the last working day before the day off is not reduced.

For example, the pre-holiday day of December 31, 2016 falls on a Saturday. This is a public holiday in an organization with a five-day work week. In this regard, on the previous working day - December 30 - the duration of the working day, as well as on other days, will be 8 hours.

Note that professional holidays such as lawyer's day, trade workers' day, geologist's day, etc., are not official holidays and non-working holidays. Therefore, the duration of the working days preceding them is not reduced.

Pre-holiday day in continuously operating organizations

Not every employer can provide their employees with a shortened pre-holiday working day. We are talking about continuously operating organizations, for example, medical institutions, transport companies, etc. Employees of such organizations, as compensation for processing on the pre-holiday day, are entitled to additional rest time or payment according to the norms established for overtime work (

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 Federal Law of December 29, 2004 N201-FZ - Collection of Legislation of the Russian Federation, 2005, N1, Article 27)

If a day off and a non-working holiday coincide, the day off shall be 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 Federal Law of April 23, 2012 N 35-FZ - Collection of Legislation of the Russian Federation, 2012, N 18, article 2127).

Employees other than salaried employees

(official salary), for non-working holidays on which they were not involved in work, additional remuneration is paid. The amount of expenses for the payment of additional remuneration for non-working holidays refers to the cost of wages in full dated 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) (as amended by the Federal Law of June 30, 2006 N 90-FZ - Collection of Legislation of the Russian Federation, 2006, N 27, Art. 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 holidays 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 holiday being established (as amended by Federal Law of June 30, 2006 N 90-FZ - Collection of Legislation of the Russian Federation , 2006, N 27, article 2878; Federal Law of April 23, 2012 N 35-FZ - Collection of Legislation of the Russian Federation, 2012, N 18, article 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)