In Art. 119 of the Labor Code of the Russian Federation states that specialists who do not have a clear work schedule have the right to have additional days of rest from 3 days a year, depending on the terms of the collective agreement and the amount of work done. Read more about granting additional leave for irregular working hours, read below.
Additional leave is a kind of compensation to the employee for his overtime work. You can count on 3 additional days of rest if:
- working day irregular;
- if the position of the employee is included in the list, which must be approved by the collective agreement or other LNA.
If an employee has never been involved in work on an irregular day for the whole year, this does not relieve the employer from the obligation to provide additional paid leave.
Additional vacation days are subject to payment, which is calculated in the same manner as the regular basic annual leave.
We talked about such a mode of working time as an irregular working day in ours and noted that the employer who established this mode of work is obliged to provide employees with additional leave. And what is the duration of the holidays for irregular working hours?
Who is entitled to leave for irregular working hours?
The Labor Code of the Russian Federation provides that annual additional paid holidays for irregular working hours are due to employees who have such a special mode of work (part 1 of article 116 of the Labor Code of the Russian Federation).
Therefore, if the position of an employee is included in the list of positions for which, in accordance with the collective agreement, agreement or local normative act, an irregular working day is established, and the condition of irregular working hours is fixed in the employment contract, allowance for such an employee must be granted.
The duration of the allowance and the procedure for its granting
The minimum duration of additional paid leave for employees with irregular working hours is 3 calendar days. However, the collective agreement or the internal labor regulations of the employer may provide for the provision of additional allowance and a longer duration (part 1 of article 119 of the Labor Code of the Russian Federation).
At the same time, the time of actual work in conditions of an irregular working day does not matter. It is impossible to calculate additional allowance in proportion to the time of actual work in conditions of an irregular working day (Rostrud Letter dated 05.24.2012 No. PG / 3841-6-1). Therefore, even if the employer establishes in its local regulatory act the condition that the length of vacation for an irregular working day is calculated in proportion to the hours worked, this will be illegal (clause 3 of the Letter of the Ministry of Labor dated 18.08.2017 No. 14-2 / B-761).
We remind you that the procedure for calculating the average wage for calculating additional allowance is similar to the procedure provided for “normal” leave (Articles 114, 139 of the Labor Code of the Russian Federation, Government Decree of December 24, 2007 No. 922).
Allowance for an irregular working day is added to the annual basic paid leave and is provided with it, unless the employee and the employer have agreed on other terms (Article 120, part 1 of Article 125 of the Labor Code of the Russian Federation).
Instead of using additional allowance for irregular working hours, an employee can receive monetary compensation by submitting an appropriate application to the employer (Article 126 of the Labor Code of the Russian Federation). Although the provision of compensation in return for vacation for an irregular working day is the right, not the obligation of the employer.
In any case, allowances not used on time will not be lost. Upon dismissal of an employee, he must be paid monetary compensation for all unused vacations, incl. and additional (
Clearly explains this point.
An irregular day is a special mode of work, according to which the worker, on the basis of the order of the management, works more than his normal working time.
It is worth noting that at the legislative level, there are no restrictions on the use of irregular working hours for certain categories of workers. Therefore, it can be established for minor citizens and pregnant women.
Basis for granting
Rest is due to all persons who hold positions recorded in the local acts of the enterprise. Also, this information should be written in the collective agreement.
Important! The condition for granting additional leave should always be fixed in the employment agreement. For this, there is a special section called "Work and Rest". This rule is explained by article 57 of the Labor Code of the Russian Federation.
For workers of state institutions, the procedure for establishing an irregular schedule, as well as providing additional rest, is also determined at the legislative level. However, the list of citizens to whom these provisions apply is also compiled by the employer.
At whose expense is it paid?
Work performed in excess of the established norm in such a situation is not overtime., nor is it considered that the worker was involved in work at night. This condition is important to consider when making settlements with an employee.
Payment for the provision of additional leave is made from the funds of the employer ().
Duration
The minimum duration of rest is three calendar days. The maximum duration of paid leave of employees is not regulated by law in any way, in contrast to the annual one. Therefore, it is determined by a collective agreement or other normative act. It may depend on the hours actually worked outside the norm.
Regardless of whether a person has worked at least one day beyond the established time, if an irregular day is specified in the contract, leave will be granted in any case.
How can be used?
Reference. Additional leave can be divided into parts equal to one day, or transferred to the next calendar year. Days of rest cannot “burn out”.
The right to use the rest arises from the date of conclusion and signing of the employment contract. The days of additional leave are summed up and, together with other types of leave, are provided to the employee, unless other conditions are stipulated in the approved vacation schedule.
Compensation
Leave may be replaced by monetary compensation, if agreed with the employer. To do this, the employee must write a statement and indicate the request for compensation. In this case, it is necessary to indicate the number of unused days, and then transfer it to the manager for review. After that, the responsible person endorses the document, and the corresponding order is issued in any form.
It is forbidden to pay monetary rewards in the following cases:
- if the employee is under 18 years of age;
- if the employee is in position.
The amount of compensation is determined by multiplying the number of days by the average daily earnings.
The amount of compensation directly depends on the employee's income for the last calendar year. The algorithm of actions in the calculations is as follows:
Let's take an example: Employee Nikolaev I.P. worked in irregular hours for 12 months. Nikolaev's salary is 38,000 rubles. According to the regulation on bonuses adopted by the company, no bonus is provided for this employee. So, we find the average earnings:
- 38,000:29.4 = 1292.5 (Nikolaev's average daily income).
- 1292.5X3 = 3877.5 (Amount of additional payment for additional minimum vacation days).
29.4 - THIS IS THE GENERAL COEFFICIENT, which is set by the state, and means it is the average number of days.
Employer's responsibility
If the employer refuses to provide leave for irregular working hours, then he will be punished. In this case, administrative liability is provided, with the imposition of penalties:
- for individual entrepreneurs - up to 5000 rubles;
- for legal entities - 50,000 rubles.
If the violation is detected again, then the company's activities are suspended for a period of three months to three years. It also provides for criminal liability if the employees of the enterprise did not go on vacation for more than two years.
Summing up, we note that an irregular day is a special mode of work, according to which the worker, on the basis of the order of the management, works more than his normal working time. Payment for the provision of additional leave is made from the funds of the employer ().
The minimum duration of rest is three calendar days. The maximum duration is not regulated by law in any way, therefore it is determined by a collective agreement or other regulatory act. If the employer refuses to provide leave for irregular working hours, then he will be punished. In this case, administrative liability is provided, with the imposition of penalties.
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Additional leave for irregular working hours is one of the ways in which the employer "mitigates" the working conditions of specialists who work periodically late (and sometimes on weekends). Since this is not the good will of the company, but an obligation established by the Labor Code of the Russian Federation, it is important for firms to understand which employees they must provide additional allowance, and also what determines the duration of such leave. Similar questions are of concern to specialists who are going to work in irregular conditions. We will reveal the nuances in our article.
Who is granted additional paid leave for irregular working hours under the Labor Code of the Russian Federation
So Art. 119 of the Labor Code of the Russian Federation determines that for employees whose working day is not strictly defined by any time frame, the employer must, in addition to the standard annual leave, provide a few more vacation days as compensation for such a work schedule.
In this regard, the first thing that worries a company that is going to establish an irregular schedule for its specialists is the composition of persons who are allowed by the legislator to introduce such a schedule in principle. The Labor Code of the Russian Federation does not establish a special list of such positions / professions. However, at the same time, it prescribes that a specific list of these persons be approved in the company. It can be approved, for example, by a collective agreement, a separate internal agreement or some other internal regulatory document (Article 101 of the Labor Code of the Russian Federation).
Important! The employee must remember that if he is invited to a position that implies periodic processing, then his employment contract with the company must necessarily include an irregular schedule clause (Article 57 of the Labor Code of the Russian Federation).
In addition, the Labor Code of the Russian Federation defines such a work schedule as episodic involvement of specialists in overtime work if there is a production need (Article 119). This means that before including any position in the enterprise in the list with an irregular schedule, it is necessary to have a justification that the labor function performed by a specialist cannot exclude the occurrence of tasks that will require some time to be spent outside the standard working hours.
The employee also does not need to forget that, as follows from Art. 119 of the Labor Code of the Russian Federation, an irregular schedule is episodic work, which means that the company does not have the right to regularly force an employee to work late, even if there is a justified reason for this.
Pay attention! Working with an irregular schedule is not overtime work (Article 97 of the Labor Code of the Russian Federation), for which the legislator has established clearer time frames (no more than 120 hours per year), as well as other grounds for involvement (with the written consent of a specialist, while with an irregular schedule, such consent of the employee is not required).
The procedure and rules for granting leave for an irregular working day
So, as mentioned above, specialists who hold a position with an irregular schedule (according to the internal documents of the company) can count on additional leave for an irregular working day.
But here the question arises as to the duration of such a vacation. Namely, in Art. 119 of the Labor Code of the Russian Federation, the legislator established the minimum amount of vacation - 3 calendar days. Consequently, the company can provide in an internal document (for example, in a collective agreement) a longer amount of additional leave for irregular working hours.
Pay attention! The company can, for each individual position that involves working on an irregular schedule, set its own duration of additional allowance.
But how exactly for each individual specialist should the firm calculate the number of days of additional leave due to him for an irregular working day? Indeed, for example, standard annual leave, as well as leave for harmful working conditions, are provided in proportion to the number of days actually worked by a specialist in the company (for leave for harmfulness - in working conditions that negatively affect his health).
Should a similar, proportional calculation scheme be applied in the situation with additional leave for irregular working hours?
The Labor Code of the Russian Federation does not contain any explanations in this regard. At the same time, the regulatory authorities expressed the following point of view: the basis for a specialist to receive additional leave for an irregular working day is the fact that the employee works in a position that the company, by its internal document, correlates with an irregular working day. The legislator does not provide for the condition that the amount of leave provided corresponds to the number of days actually worked on an irregular schedule (letter of Rostrud dated May 24, 2012 No. PG / 3841-6-1).
Therefore, any specialist for whom, by virtue of the internal regulations of the company (and his employment contract), an unfixed work schedule is established, must receive additional leave for irregular working hours in the full amount that the employer has established for him, even if the employee has never actually been late at work until late.
Compensation instead of allowance
In practice, employees often ask for monetary compensation instead of such additional allowance. In this regard, some companies, in an effort to avoid paperwork, are considering the option of prescribing in the internal document of the company a norm according to which an employee who works irregular hours will be paid a certain amount of money instead of a default allowance. Can it be done?
The Labor Code of the Russian Federation does not directly prohibit doing so. But at the same time, Art. 128 of the Labor Code of the Russian Federation, the legislator prescribed that the employer must replace the part of the annual leave that exceeds 28 days if he receives a corresponding application from the employee. And since the additional leave for an irregular working day has an annual frequency, it seems that the need for an application from a specialist extends to such additional allowance.
Pay attention! If the company nevertheless decides to provide for compensation instead of additional allowance in the internal document, then it should be prepared for a possible administrative fine. After all, the right to additional allowance is a guarantee for episodic processing of an employee, which allows him to recuperate. Therefore, the inability to go on additional admission can be considered as a deterioration in the position of the company's employees in comparison with the current norms of the Labor Code of the Russian Federation (Article 8 of the Labor Code of the Russian Federation), for which fines are provided under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation.
Paid leave for irregular working hours for certain categories of employees
A separate and often relevant question for companies is the following: is there a need to provide additional leave for irregular working hours to those specialists who work in the company on any special conditions (for example, are part-time workers or work on a rotational basis)?
Let's start with collaborators. They, as a general rule, work in one organization as their main job, and additionally work part-time in another company. As required by the legislator, such specialists can spend no more than 4 hours a day on their additional work, and for a month, for example, if the “standard” working time norm is 176 hours, then they can work part-time only 88 hours, i.e. e. no more than half (Article 284 of the Labor Code of the Russian Federation).
Working according to an irregular schedule, as already mentioned, involves the episodic involvement of a specialist in the performance of his work function in excess of the standard length of his working day. That is, an irregular schedule in itself suggests that a part-time worker in this case will sometimes work more than 4 hours a day, which is in conflict with Art. 284 of the Labor Code of the Russian Federation.
Pay attention! A part-time job, however, can in some cases work at an additional job and full time (when the main job does not pay wages, when he suspended his work by virtue of Article 142 of the Labor Code of the Russian Federation). However, this is rather an exception, and it is unlikely that the episodic involvement of a specialist in excess of the standard length of his working day will coincide with the days when he is released from work at his main place of work.
The courts also note that if the part-time worker has not suspended his work at the main place of work, then in the second company he actually works on a part-time basis, and not an irregular one (determination of the Supreme Arbitration Court of the Russian Federation dated July 29, 2013 No. VAS-9418 / 13). Therefore, it seems that if a specialist works part-time at a second job on an irregular schedule, while not occasionally suspending his work in the main organization, then his part-time job cannot give him the right to additional paid leave for an irregular working day .
A similar conclusion is also true for shift workers. After all, their working time is taken into account in aggregate for the entire period (for example, for a month, quarter or year) during which they were at the enterprise and performed their work (summated accounting, article 104 of the Labor Code of the Russian Federation). It is not possible for the firm to determine exactly when such an employee was occasionally involved in connection with production needs. Therefore, if a shift worker is forced to work longer than usual, then this can be qualified as overtime work (Article 99 of the Labor Code of the Russian Federation), and not as an irregular schedule. This means that a shift worker is not entitled to additional allowance for an irregular schedule.
Results
The right to additional paid leave for irregular working hours is available to every specialist to whom the company has the right to periodically instruct to work longer than usual. In this regard, organizations should be aware that such leave can only be granted to those specialists whose position, according to the internal document of the company, belongs to the list of positions with non-fixed working hours. At the same time, leave for such specialists should be provided in full, regardless of how many days he actually worked in excess of the norm, the very fact of working in an irregular schedule is important. In addition, some categories of workers are not allowed to allow additional admission, since the very involvement of them in work with an unfixed schedule conflicts with the norms of the Labor Code of the Russian Federation (for example, part-time workers, shift workers).
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