Irregular working hours. What does this mean - irregular working hours according to the Labor Code of the Russian Federation? 1 irregular working day

The working day of an employee of the organization can have different lengths depending on the area in which he works. However, when calculating wages taken a certain norm hours of work per day or week, which is regulated by law.

Length of standardized working day

The term “standardized working day” is absent in the legislation, but it is often used by parties to labor relations. It is understood that a citizen will work the norm of hours prescribed by law in a day (week, month).

According to the Labor Code of the Russian Federation, work time - this is the time at which the employee must fulfill his duties provided for by the rules of the internal work schedule and labor contract.

Usually a week is taken to calculate the rate. The weekly work rate is 40 hours. The employer can give the employee a choice: to work 5 or 6 days a week. If a citizen works 5 days a week, his working day will be 8 hours. The six-day period implies a decrease in the working day by an hour. In this case, the working day before the weekend is reduced by 2 hours.

It is more difficult to keep records when people work in shifts, for example, 2 days with a 12-hour workday, 2 days off. Then the schedule is constantly shifting relative to the days of the week. In this case, a longer period is taken for the accounting period, usually a month. But the norm remains the same - 40 hours per week.

A standardized working day assumes a fixed working time. This is how most workers work. Delays are considered overtime and must be paid separately. For some employed persons, a shorter working day may be introduced. It will also be considered normalized, since a certain duration is also provided for.

The organization may introduce irregular working hours for individual employees. This means that the management has the right to occasionally involve them to work in excess of the normalized working hours. Such employees are entitled to an additional 3 days of vacation.

Video: working hours and rest hours according to the Labor Code

Reduced working hours

Labor law gives some citizens the right to work less than normal. Shorter working hours mean that an employee is given less than 40 hours a week to work, but this will be the norm for him. The leader has no right to interfere with this.

A reduced working day (week) is established for the following circle of persons:

• minors who do not study or work during vacations:
  • up to 16 years old - 24 hours a week and 5 hours a day;
  • from 16 to 18 years old - 35 hours a week and 7 hours a day;
• students of minors during the academic year:
  • under 16 years old - 12 hours a week and 2.5 hours a day;
  • from 16 to 18 years old - 17.5 hours a week and 3.5 hours a day;
• disabled people of groups I and II - 35 hours per week;
• teachers - 36 hours a week;
• medical workers - 39 hours a week;
• workers in conditions dangerous to life and harmful to health - 36 hours.

Reducing working hours is possible only if employees have documents proving the validity of such an action.

In addition to reduced working hours, part-time working hours may be introduced. It is issued for the following persons:

• pregnant women;
• a parent raising a child under 14 or a child with a disability under 18;
• a citizen who cares for a sick family member.

In these cases, the working day is shortened by agreement of the parties, no specific limits are provided, but the employer must meet the requirements of such workers.

Any person can work part-time if the organization of work at the enterprise allows it, and the management has no objections.

The main difference between a shortened working day (week) and part-time work is that a shortened schedule implies the calculation of wages to the employee in the same amount as to employees with normal working hours (if the salary is not piecework). In case of part-time work, payment is charged strictly in proportion to the time worked.

Regulation on the normalized working day in the organization

To organize labor process management draws up internal documentation:

• labor contracts with employees and additional agreements to them;
• collective agreements;
• internal labor regulations (PVTP);
• regulation on standardized or irregular working hours, etc.

Usually labor standards are fixed in the PTP, therefore the need for a regulation on standardized working hours does not always exist. It will be required when you need to return employees to the standard work schedule for most.

More often, as a separate document, there is a provision on irregular working hours. It must take into account:

• positions to which the regime may apply;
• the procedure for engaging in work outside the normal working hours;
• the procedure for providing compensation and incentives (additional payments, bonuses, additional leave).

Regulations on irregular working hours are drawn up in the event that employees will be involved in work outside the norm

The regulation on standardized (as well as non-standardized) working days indicates the following:

• the name of the organization in accordance with the constituent documents;
• title of the document;
• date of registration of the position and its number;
• the purpose of creating the document;
• listing of positions covered by the regime;
• terms of remuneration;
• the procedure according to which the time worked by each employee is taken into account;
• application mark, if any.

Procedure for approving the position:

1. First, the document is approved by the responsible persons.
2. Then the manager puts the visa on title page... On the visa his full name, position, personal signature and date of approval are indicated.
3. Further, an order is issued on the introduction of the document in the organization.

The fact that employees are familiar with the situation is certified by their signatures.

The regulation on the regulation of labor in the organization prescribes the goals and objectives that the management pursues

Full-time transfer procedure

Full-time translation must be carried out in a certain manner established at the legislative level or prescribed by the internal documents of the organization. It is forbidden to transfer an employee to full-time work without his consent in writing.

If the initiative comes from the employer, a corresponding order is issued, which is brought to the attention of employees 2 months before the upcoming changes. They must put their signature on the document, which will indicate their consent and awareness.

When the initiative comes from an employee, he writes a statement asking to transfer him to a full work schedule. On this basis, the management issues an order, and the employee signs as a sign of familiarization with it.

Changes in the schedule are enshrined in a supplementary agreement to the employment contract, which is signed by both the employee and the employer. If the size of the salary changes, this is also taken into account in the document.

Full-time transfer order

A full-time transfer order is drawn up in any form.

It records the following data:

• the date from which the new operating mode is introduced;
• the end date of the changes, if they are not permanent;
• an indication of a change in such elements of the labor regime as working day, week, etc .;
• a list of all foreseen work interruptions.

The order to transfer an employee to full-time work indicates the person who is entrusted with the duty to monitor the execution of this order

Full-time transfer application

The application is drawn up if the employee expresses a desire to work full-time. The transfer applies to those employees who are already on the staff, but work part-time.

As a rule, these are the following persons:

• pregnant women;
• full-time students;
• parents whose child has grown up and does not need increased attention;
• part-time workers.

If the reasons for reducing the work schedule become irrelevant, employees fill out an application for a full-time transfer.

It contains the data:

• name of the organization, position and full name of the head;
• request for a full-time transfer;
• the date from which the worker is ready to start working in full mode;
• employee signature.

The application for a full-time transfer is written in a free form

Features of payroll

A working day within the established norm can be paid in the form of a salary, piecework, or a combined system. But there are special periods for which separate payment rules apply.

Table: how an employee is rewarded for work in different conditions

Labor legislation establishes how much a citizen is obliged to work in certain cases. In many organizations, a standardized working day is established - eight or seven hours. The mode of operation is prescribed in the local acts of the organization, including in the regulation on the standardized working day, and is approved by order of the authorities. If an employee wishes to transfer full-time, he must write a corresponding application.

Since the criteria for episodic involvement in labor within an irregular day and maximum amount overtime, in practice, disputes often arise between the employee and the employer. Let's try to figure it out.

Another feature of this work regime is the ability of the employer to attract an employee both before the beginning and after the end of the shift without obtaining his consent to work in excess of the norm (Letter of Rostrud dated 07.06.2008 No. 1316-6-1). This position is confirmed by the recently issued Letter of the Ministry of Labor dated October 29, 2018 No. 14-2 / \u200b\u200bOOG-8616. In the letter, officials remind that the introduction of irregular working hours should not change the established working hours, and overwork should not lead to the transformation of irregular working hours into an extended one.

If the employee's employment contract does not contain a condition on the irregularity of his working time, but he is occasionally involved in work outside his work norm, such an employee may also qualify for an additional weekend. However, he may choose to compensate with money. In this case, you need to be guided by new edition art. 119 TC - the rule is excluded from it that if the employer does not provide additional leave for using an employee in the irregular day mode, overworking in excess of the standard of working hours with the employee's written consent is compensated as. Thus, the legislator does not recognize overtime work for irregular days, which should be compensated additional payment and has time limits.

At the same time, employees whose working day is irregular are extended to the beginning and end of the working day, providing them with weekly days off and rest on holidays. This means that attracting an employee to additional work on weekends and holidays is possible only in compliance with the rules art. 113 and art. 153 of the Labor Code of the Russian Federation... This is also reminded in the Letter of the Ministry of Labor No. 14-2 / \u200b\u200bOOG-8616.

Work at night is also a deviation from the norm, therefore, it must be formalized properly and paid in an increased amount established by local acts or ( art. 154 of the Labor Code of the Russian Federation).

Who is the irregular day set

The legislation does not restrict the employer in the choice of positions, which can be assigned irregular working hours. However, the definition of such a list must be approached taking into account the nature of the work and not include in it all the positions available at the enterprise. This may raise questions for reviewers.

The list of positions can be drawn up as a separate local normative act or included in a collective agreement, internal labor regulations. Also, it must be agreed with the representative body of workers (if any).

Sample order for approval of the list of positions

Documentary registration of conditions

When hiring an employee, it is necessary to familiarize with collective agreement, internal labor regulations and other local regulations in force in the organization and relating to its labor function. After that, an employment contract is concluded with the employee, which includes a condition for working in a non-standard working day mode. By signing it, the employee agrees with the nature of the work involving overwork.

Sample employment contract

Also, this condition must be indicated in the order for employment.

Sample order

It should be noted that if an employment contract is concluded with an employee for a position that is absent in approved list professions with irregular working hours, then this condition is illegal. Consequently, the employee has the right to refuse to work beyond the duration of the working day and for this reason he cannot be attracted to disciplinary responsibility.

If an employee is transferred to a position for which an irregular day is established, then the employer should:

• familiarize him with local regulations containing a list of positions with irregular working hours;
• conclude an additional agreement to the employment contract on the inclusion of the condition of irregular day and compensation for this nature of work;
• issue a corresponding order (in free form).

If the employee excludes the condition of an irregular day, then the employer must conclude an additional agreement with him, which will contain a different work schedule, and issue a corresponding order.

Registration of involvement in work in excess of the norm

The procedure for attracting workers to work in excess of the norm with irregular working hours is not regulated. In practice, recruitment is often carried out on the basis of a verbal order from the boss or on the initiative of the employee himself who did not have time to complete the task. It seems that in order to guarantee the rights of workers, it is advisable for them to demand from the employer a written order to engage in work in excess of the norm, otherwise it will be difficult to prove the existence of such an expression of the will of the employer.

Job accounting

The work time of an employee with irregular days is recorded without taking into account the time worked in excess of the norm. This is due to the fact that he is not compensated in cash, as in the case of overtime work, but is granted additional annual leave. But since article 91 of the Labor Code of the Russian Federation it is determined that the employer is obliged to keep, actually worked by each employee, the employer can keep such records by a separate independently developed document, for example, a log book or a separate time sheet. This can be useful if an emergency situation occurs while performing work outside the working hours.

Part-time and part-time jobs

According to article 101 of the Labor Code of the Russian Federation, an employee working on conditions can be assigned an irregular day if he is assigned a part-time working week, but with a full-time working day (shift).

If the employee is assigned a part-time working day, then it is impossible to establish an irregular working day for him. In this case, one of the modes of labor completely loses its meaning.

Also, the law does not prohibit the establishment of irregular days. But there are some peculiarities here:

• if a part-time worker is set for a working day of no more than 4 hours, then such a working day is considered incomplete. Therefore, it is impossible to establish irregular working hours;
• if a part-time worker at the main place of work is free from execution on some days job responsibilities, then he can work a full shift with a part-time work week. In this case, it will be possible for him to establish an irregular working day (according to art. 101 of the Labor Code of the Russian Federation) and, accordingly, compensation in the form of annual paid leave of at least three calendar days.

Working hours - the time during which the employee, in accordance with the internal labor regulations and the terms of the employment contract, must perform labor duties, as well as other periods of time that, in accordance with this Code, other federal laws and other regulatory legal acts Russian Federation refer to working hours.

Normal working hours cannot exceed 40 hours per week.

The procedure for calculating the norm of working time for certain calendar periods (month, quarter, year), depending on the established duration of working time per week, is determined by the federal body executive powerresponsible for the development of state policy and legal regulation in the world of work.

(part three was introduced by the Federal Law of 22.07.2008 N 157-FZ)

The employer is obliged to keep records of the time actually worked by each employee.

Article 92. Shorter working hours

Reduced working hours are established:

for employees under the age of sixteen - no more than 24 hours a week;

for employees aged sixteen to eighteen years - no more than 35 hours per week;

for employees who are disabled of I or II groups - no more than 35 hours per week;

for workers engaged in work with harmful and (or) dangerous working conditions - no more than 36 hours per week in the manner established by the Government of the Russian Federation, taking into account the opinion of the Russian Tripartite Regulatory Commission social and labor relations.

(Part one as amended by Federal Law of 30.06.2006 N 90-FZ)

Working hours of students educational institutions under the age of eighteen, who work during the academic year in their free time, may not exceed half of the norms established by part one of this article for persons of the corresponding age.

(as amended by Federal Law of 30.06.2006 N 90-FZ)

This Code and other federal laws may establish reduced working hours for other categories of workers (pedagogical, medical and other workers).

(as amended by Federal Law of 30.06.2006 N 90-FZ)

Article 93. Part-time work

By agreement between the employee and the employer, part-time (shift) or part-time work week can be established both upon hiring and subsequently. The employer is obliged to establish part-time work (shift) or part-time work week at the request of a pregnant woman, one of the parents (guardian, trustee) who has a child under the age of fourteen (a disabled child under the age of eighteen years), as well as a person exercising caring for a sick family member in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation.

(as amended by Federal Law of 30.06.2006 N 90-FZ)

When working on a part-time basis, the employee is paid in proportion to the time worked by him or depending on the amount of work performed by him.

Working on a part-time basis does not entail any restrictions for employees on the duration of the main annual paid leave, the calculation of seniority and other labor rights.

Article 94. Duration of daily work (shift)

Duration daily work (shifts) cannot exceed:

for employees aged fifteen to sixteen years - 5 hours, aged sixteen to eighteen years - 7 hours;

for students of general education institutions, educational institutions of primary and secondary vocational educationcombining study with work during the academic year, at the age of fourteen to sixteen years - 2.5 hours, at the age of sixteen to eighteen years - 4 hours;

(as amended by Federal Law of 30.06.2006 N 90-FZ)

for disabled people - in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation.

(as amended by Federal Law of 30.06.2006 N 90-FZ)

For workers engaged in work with harmful and (or) hazardous working conditions, where a reduced duration of working time is established, the maximum permissible duration of daily work (shift) cannot exceed:

with a 36-hour work week - 8 hours;

with a 30-hour work week or less - 6 hours.

The collective agreement may provide for an increase in the duration of daily work (shift) in comparison with the duration of daily work (shift) established by part two of this article for workers employed in work with harmful and (or) hazardous working conditions, provided that the maximum weekly duration of the worker is observed. time (part one of Article 92 of this Code) and hygienic standards for working conditions established by federal laws and other regulatory legal acts of the Russian Federation.

(Part three as amended by Federal Law of 30.06.2006 N 90-FZ)

The duration of the daily work (shift) 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 (exhibiting) of works, in accordance with the lists works, professions, positions of these workers, approved by the Government of the Russian Federation, taking into account the opinion of the Russian Trilateral Commission for the Regulation of Social and Labor Relations, may be established by a collective agreement, local normative act, labor agreement.

(Part four was introduced by the Federal Law of 30.06.2006 N 90-FZ, as revised by the Federal Law of 28.02.2008 N 13-FZ)

Article 95. Duration of work on the eve of non-working holidays and days off

Length of a working day or shift immediately preceding a non-working day holiday, decreases by one hour.

B continuously operating organizations and on certain types work where it is impossible to reduce the duration of work (shift) on the day before the holiday, overtime is compensated by providing the employee with additional rest time or, with the employee's consent, by payment according to the norms established for overtime work.

On the eve of weekends, the duration of work with a six-day working week cannot exceed five hours.

Article 96. Work at night

Night time - time from 22:00 to 6:00.

The duration of work (shift) at night is reduced by one hour without further working off.

(as amended by Federal Law of 30.06.2006 N 90-FZ)

The duration of work (shift) at night is not reduced for workers who have a reduced duration of working hours, as well as for workers hired specifically for work at night, unless otherwise provided by the collective agreement.

The duration of work at night is equal to the duration of work in the daytime in those cases when it is necessary for working conditions, as well as in shift work with a six-day working week with one day off. The list of these works can be determined by a collective agreement, local normative act.

Not allowed to work at night: pregnant women; employees under the age of eighteen, with the exception of persons participating in the creation and (or) performance of works of art, and other categories of employees in accordance with this Code and other federal laws. Women with children under the age of three, disabled workers, workers with disabled children, as well as workers caring for sick members of their families 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 , mothers and fathers raising children under the age of five without a spouse, as well as guardians of children of this age, may be involved in night work only with their written consent and provided that such work is not prohibited by them for health reasons in according to the medical report. At the same time, these employees must be informed in writing of their right to refuse to work at night.

(as amended by Federal Laws of 24.07.2002 N 97-FZ, of 30.06.2006 N 90-FZ)

The order of work at night for creative workers of the media, cinematography organizations, television and video filming teams, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibiting) of works, in accordance with the lists of works , professions, positions of these workers, 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, may be established by a collective agreement, local regulatory act, labor contract.

(as amended by Federal Laws of 30.06.2006 N 90-FZ, of 28.02.2008 N 13-FZ)

Article 97. Work outside the established working hours

(as amended by Federal Law of 30.06.2006 N 90-FZ)

The employer has the right, in accordance with the procedure established by this Code, to attract an employee to work outside the working hours established for this employee in accordance with this Code, other federal laws and other regulatory legal acts of the Russian Federation, collective bargaining agreements, agreements, local regulations, employment contracts (hereinafter - the working hours established for the employee):

for overtime work (Article 99 of this Code);

if the employee works on an irregular working day (Article 101 of this Code).

Article 98. Abolished. - Federal Law of 30.06.2006 N 90-FZ.

Article 99. Overtime work

(as amended by Federal Law of 30.06.2006 N 90-FZ)

Overtime work - work performed by an employee on the initiative of the employer outside the established working hours for the employee: daily work (shift), and in the case of cumulative recording of working hours - in excess of the normal number of working hours for the accounting period.

Engaging an employee to work overtime by the employer is allowed with his written consent in the following cases:

1) if necessary, perform (finish) the work begun, which due to an unforeseen delay in technical specifications production could not be performed (completed) during the working hours established for the employee, if the non-performance (non-completion) of this work may lead to damage or loss of the employer's property (including the property of third parties held by the employer, if the employer is responsible for the safety of this property), state or municipal property or create a threat to the life and health of people;

2) in the production of temporary work on the repair and restoration of mechanisms or structures in cases where their malfunction may cause the termination of work for a significant number of employees;

3) to continue work in the absence of a shift worker, if the work does not allow a break. In these cases, the employer is obliged to immediately take measures to replace the shift with another employee.

Engaging an employee to work overtime by an employer without his consent is allowed in the following cases:

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

In accordance with the Federal Law of 07.12.2011 N 417-FZ from January 1, 2013 in paragraph 2 of part three of this article the words "water supply, gas supply, heating, lighting, sewerage systems," will be replaced by the words "centralized hot water supply systems, cold water supply and (or) sewerage systems, gas supply systems, heat supply systems, lighting, ".

2) in the production of publicly necessary work to eliminate unforeseen circumstances that disrupt the normal functioning of water supply, gas supply, heating, lighting, sewage, transport, communication systems;

3) in the performance of 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 conditions, that is, in the event of a disaster or threat of disaster (fires, floods, hunger, earthquakes, epidemics or epizootics) and in other cases, endangering the life or normal living conditions of the entire population or part of it.

In other cases, involvement in overtime work 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.

It is not allowed to involve pregnant women, employees under the age of eighteen years, other categories of employees in overtime work in accordance with this Code and other federal laws. Involvement of disabled persons, women with children under the age of three years, in overtime work, is allowed only with their written consent and provided that it is not prohibited for them for health reasons in accordance with a medical certificate issued in the manner prescribed by federal laws and other regulatory legal acts of the Russian Federation. At the same time, disabled persons, women with children under the age of three years, must be informed against signature of their right to refuse overtime work.

Overtime work must not exceed 4 hours for each employee on two consecutive days and 120 hours per year.

It is the employer's responsibility to ensure that each employee's overtime is accurately recorded.

Irregular working hours are considered in the legislation as an alternative to the 8-hour working day. Management is free to decide whether employees need to be on site for the usual number of hours to complete the entire work, or if they need additional time for individual tasks. If the need for this nevertheless arises, an irregular day is introduced locally for specific employees.

How irregular working hours are interpreted in the Labor Code of the Russian Federation

The Labor Code of the Russian Federation, which is designed to regulate relations between management and subordinates, pays a lot of attention to the establishment of health-friendly norms of time spent at work, as well as the norms of time, which will be enough for the body to recuperate, including irregular working hours.

What period an employee must stay within the company, performing his labor functions, is discussed in the section "Working hours". Within the framework of this concept, like the concept of "irregular working day", it is fixed how many hours an employee must perform his duties during the day (in some cases, the term "shift" is used instead of a working day). There are also time limits for the work week and year. There is a separate concept of “rest time”. With its help, the duration of daily rest, weekends and holidays is regulated.

The standard working time is perceived as a 5-day day with an 8-hour working day. This is the norm in effect in the overwhelming majority of enterprises and organizations, both public and private. But there is another mode of work - irregular working hours (Article 101 of the Labor Code of the Russian Federation).

Irregular working hours are not introduced for the entire enterprise, but only for some people who simply need to work beyond the plan. It turns out that in the whole company there is, for example, a standard 5-day day with the beginning of work at 9 am, and individuals work irregular working hours. Their job is to show up for work, say at 6 a.m. or leave the office after 10 p.m.

For many, irregular working hours are tightly intertwined with the concepts of "overtime" and "overtime". But at the legislative level, they are separate. Irregular working hours are a separate work schedule that allows an employer to employ specific workers outside of their regular work schedule.

How many hours per week and year is it permissible to work in 2017-2018

In Russia, a workweek of 40 hours is considered the norm (Article 91 of the Labor Code of the Russian Federation). If we are talking about a 5-day day, and this is how they work at the overwhelming number of enterprises, then the employee has to work 8 hours daily. But the employer is entitled to increase these rates.

This increase is of 2 types:

Don't know your rights?

• engaging in overtime;
• stretching the schedule within an irregular working day.

The law introduced a restrictive framework for overtime work: it is impossible that such overtime should exceed 120 hours per year. At the same time, it is prohibited to involve an employee in overtime work for more than 4 hours 2 consecutive days.

But in relation to irregular working hours, there are no clear time limits in the law. There are only requirements not expressed in a specific hourly equivalent. The regime of irregular working hours should be of an episodic nature, that is, there can be no question of any system. In addition, the employer needs to really need the employee to fulfill his direct duties during an irregular working day.

Irregular working hours - what does it mean for an employee

An employee who has agreed to an irregular working day schedule needs to know the following:

• The employer will not each time ask the employee's consent to work irregular working hours. Such consent is obtained on a one-time basis and is most often reflected in the employment contract.
• Refusal to work an irregular working day can be equated with refusal to fulfill one's labor duties. Although the courts have not yet developed a unified practice of resolving labor conflicts on this issue. It should be understood that such a schedule is unacceptable every day. Irregular working hours are an episodic phenomenon in daily activities.
• Even though this mode of working time is called irregular working day, this does not mean that there should be no restrictions on its duration. IN local act and the employment contract must describe the time frame of the working day and week. Irregularity lies in the difference of the schedule from the generally accepted in the company.
• A person who is called upon to work irregular working hours must understand that this is impossible on a permanent basis. The employee is obliged to come and go with the rest of the employees and only when such a need arises to work after hours.
• Irregular working hours cannot serve as a reason for the performance of additional duties that are not prescribed in job description... The working time is increasing, not the list of responsibilities.

Irregular working hours give the employee a bonus in the form of at least 3 vacation days, which are paid by the company. These days can be attached to annual leave... Also, instead of vacation, you can receive monetary compensation. The same rules apply as for annual paid leave. It may simply not be possible to pay extra money for an irregular working day, if the authorities do not order it.

What does irregular working hours mean for an employer

A boss who has a need to establish an irregular working day for his employees must arrange everything in advance. To begin with, it is necessary to reflect the very possibility of attracting people to work within a normal working day in an agreement between the team. In it, you also need to indicate a list of positions for which a standardized working day is required.

Then you need to conclude with each employee who holds a position from this list, an agreement on the introduction of irregular working hours, and in writing. Oral agreements in in this case unsuitable. The easiest way is to initially prescribe this in an employment contract, and if it has already been agreed upon, you will have to correct it by adding a clause on irregular working hours.

The employer must understand that he has no right to force the employee to work irregular working hours every day or even every other day, since this regime is strictly episodic. At the same time, during the time worked out by the employee in excess of the norm, one cannot force him to take on additional functions. A non-standard working day is used only for the performance of the employee's direct duties.

List of positions of employees with irregular working hours

The circle of persons who can work irregular working hours is established almost arbitrarily at the local level. There is no single list of positions with irregular working hours in the legislation. You can find only individual recommendations on this issue.

So, in the decree of the Government of the Russian Federation "On approval of the rules for granting annual additional leave to employees with irregular working hours" dated 11.12.2002 No. 884, it is proposed to include the following positions in the list:

• Leading link. For example, the CEO can easily work irregular working hours.
• Maintenance personnel. The same installer can come to work in advance within the framework of an irregular working day to check the equipment.
• Housekeeping staff. The exit of the caretaker to work off irregular working hours can simplify the work of all staff.
• Employees whose time spent at work is unaccountable. A realtor can organize real estate shows during irregular working hours.
• Employees who have an obligation to work for a certain time, but the period when this must be done is not specified. These include persons creative professions, for which irregular working hours are quite the norm.

So employers have some freedom to choose positions with irregular working hours. In private structures, irregular working hours are established almost entirely at the request of the authorities. The main thing is that the list of positions should be fixed in writing.

The rules for regulating such a regime as irregular working hours are not clearly expressed in labor legislation. The norms themselves, which regulate irregular working hours as a labor regime, are scattered throughout the Labor Code of the Russian Federation, and not collected in a separate subsection. In this regard, when establishing and applying irregular working hours, special care must be taken to prevent violations of the law and not to confuse irregular working hours with overtime and overtime work.

Working conditions in irregular working hours

By virtue of Art. 97 of the Labor Code of the Russian Federation, the employer has the right in the manner prescribed Labor Code, to attract an employee to work outside the working hours, for this employee in accordance with the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation, collective bargaining agreements, agreements, local regulations, labor contracts:

for overtime work (Article 99 of the Labor Code of the Russian Federation);

if the employee works on an irregular working day (Article 101 of the Labor Code of the Russian Federation).

According to Art. 101 of the Labor Code of the Russian Federation, irregular working hours - a special mode of work, according to which individual employees can, by order of the employer, if necessary, occasionally be involved in the performance of their labor functions outside the established working hours for them. The list of positions with irregular working hours is established by a collective agreement, agreements or a local normative act, adopted taking into account the opinion of the employee body.

Based on this wording, the following mandatory conditions of work in the regime of irregular working hours can be distinguished:

1. The list of positions involving work in such a regime is established by a collective agreement, agreements or local regulations.

2. Such work is carried out by order of the employer.

3. Such work is carried out sporadically.

In addition, in accordance with Part 2 of Art. 57 of the Labor Code of the Russian Federation, the condition of irregular working hours is enshrined in the employment contract with the employee.

Note: if the irregular working time regime is introduced after the conclusion of the labor contract with the employee, he is first notified of this no later than two months in advance, then an additional agreement to the labor contract is concluded on changing the working time regime, and on the basis of the agreement, an order is issued. Such changes are carried out by agreement of the parties (Article 72 of the Labor Code of the Russian Federation) or by the employer unilaterally (Article 74 of the Labor Code of the Russian Federation).

Who can work at irregular hours?

The employer has the right to determine the list of positions with irregular working hours independently, fixing it in the collective agreement, agreement, local normative act, which is adopted taking into account the opinion of the representative body of workers.

the list of positions of employees with irregular working hours was approved by Order of the FSS of the Russian Federation dated June 22, 2009 No. 146;

the list of positions of employees of the Pension Fund system with irregular working hours - Resolution of the Board of the RF PF dated 01.11.2007 No. 274p.

Quite a few positions are included in these lists - these are the management staff, specialists, and service personnel.

According to Decree of the Government of the Russian Federation of 11.12.2002 No. 884 (hereinafter referred to as Decree No. 884), the list of positions of employees with irregular working hours of federal state institutions includes managerial, technical and economic personnel and other persons whose work during the working day cannot be accurately recorded, persons who distribute working time at their own discretion, as well as persons whose working time, by the nature of the work, is divided into parts of an indefinite duration. A specific list of positions of such employees is established by the internal labor regulations or other regulatory acts of the institution. If these regulations are absent, the employer independently adopts a local act and establishes a list of positions with irregular working hours at his own discretion and with the consent of the trade union.

There are no restrictions on the positions that can be included in the list. As for the status of employees holding these positions, it is not easy with him: not everyone can set irregular working hours. Despite the fact that there is no special prohibition in the Labor Code, there are other norms, in particular, regulating the second type of work outside the norm of working hours - overtime. You cannot involve:

pregnant women (Article 259 of the Labor Code of the Russian Federation);

workers under the age of 18 (Article 99 of the Labor Code of the Russian Federation);

workers during their apprenticeship (Article 203 of the Labor Code of the Russian Federation).

Disabled people, women with children under the age of three, fathers raising children without a mother, guardians (trustees) of minors are allowed to be involved in overtime work only with their written consent, having informed them of the right to refuse such work (Art. 99, 259 of the Labor Code of the Russian Federation).

There is an opinion that it is impossible to establish irregular working hours for employees who have reduced working hours (disabled people, minors working in harmful and (or) dangerous conditions, etc.). Some judges share this opinion. In particular, the judges of three instances, when considering the case, concluded that a disabled employee who has been assigned a reduced working time cannot be assigned an irregular working day, regardless of the employee's consent or disagreement (Cassation ruling of the Moscow City Court dated 23.10.2015 No. 4g / 2-10554 / 2015).

At the same time, it should be noted that the labor legislation does not prohibit the involvement of disabled workers in overtime work with their written consent.

Officials of the Ministry of Labor, in turn, responding to the establishment of irregular working hours for workers in harmful and (or) dangerous conditions, said: since the establishment of a reduced working time is a guarantee for persons employed in jobs with harmful and (or) dangerous working conditions, if an irregular working day is established for this category of workers, the said guarantee actually loses its purpose - reducing the negative impact on a person harmful conditions labor. Accordingly, irregular working hours for such workers can be established only if they have not established a reduced working time.

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Notwithstanding the foregoing, we believe that since there is no direct prohibition on establishing irregular working hours for employees with reduced working hours, in some cases (with the written consent of employees), irregular working hours can be established, in particular, for the same disabled employee. Perhaps the legislator will eliminate this gap, as he eliminated it for persons who work part-time. Now part 2 of Art. 101 of the Labor Code of the Russian Federation it is clearly established that an irregular working day can be established for those working on a part-time basis only if the agreement of the parties to the employment contract provides for an incomplete working week, but with a full working day (shift).

Question:

Can irregular working hours be established for part-time workers?

Answer:

Here it should be noted the opinion of some experts, based on the fact that part-time work by virtue of the law is a part-time job. Proceeding from this, the part-time worker by virtue of Part 2 of Art. 101 of the Labor Code of the Russian Federation can work in the regime of irregular working hours only if by agreement of the parties to the employment contract an incomplete working week with a full working day is established.

We cannot agree with this position. According to the norm of Part 1 of Art. 284 of the Labor Code of the Russian Federation, the duration of working hours when working part-time should not exceed four hours a day. On days when the employee is free from work duties at the main place of work, he can work part-time full-time (shift). During a month (another accounting period), the duration of working time in case of part-time work must not exceed half of the monthly norm of working time (norm of working time for another accounting period) established for the corresponding category of workers.

However, part-time work is not part-time work.

Therefore, we believe that since there is no ban on the work of part-time workers in the regime of irregular working hours in the Labor Code, it can be established for such employees as well. And the compensation provided for work in the appropriate mode should be provided to them in full, as well as to the main employees (part 2 of article 287 of the Labor Code of the Russian Federation).

The order of work in the irregular day mode

Let us recall that by virtue of Art. 101 of the Labor Code of the Russian Federation, if the regime of irregular working hours is established, the employee carries out work outside normal working hours on the basis of an order from the employer and periodically.

And here two questions arise at once, which at the moment remain open:

1. In what form should the order be issued?

2. What does "occasionally" mean?

For the first question, let us turn to the Labor Code, which often uses the term “order” along with the name “order”. For example, according to Part 6 of Art. 193 of the Labor Code of the Russian Federation, an order (order) of the employer on the application of a disciplinary penalty is announced to the employee against his signature. That is, both an order and an order mean a written act issued by the employer represented by the organization.

However, unlike an order, an order - despite the fact that it also has the character legal act, - can have both written and oral form and be published not only by the head of the organization, but also by the heads of structural divisions within their competence. Within the meaning of Part 1 of Art. 101 of the Labor Code of the Russian Federation, the written form of the order is not implied, respectively, it can be given orally. And in practice, since the written consent of the employee for each recruitment to work beyond the normal working hours is not necessary, it is easier to give oral instructions.

But we note: by issuing written orders, the employer will be able to confirm later that he did not abuse his right and involved employees in such work periodically, and not constantly. In addition, he will be able, with written evidence in hand, to bring the employee to disciplinary responsibility if he refuses to work in excess of the norm.

In any case, an order made orally does not entail a violation of the order of work in the regime of irregular working hours.

Unlike the order form, the second question is of fundamental importance and if it is established that the employee is constantly overworking, the employer may be obliged to pay for such work as overtime.

Hiring an employee from time to time means irregularly, not constantly, from time to time, from time to time. Of course, special certainty given characteristic does not contribute. Moreover, the maximum number of hours of work in excess of the norm has not been established either. The lack of clear restrictions (as in overtime work) in practice leads to an unreasonable expansion of the scope of irregular working hours and, as a result, to employers' abuse of the right.

Note: the obligation to keep records of hours of work in excess of the norm is not established by legislation (such work does not apply to overtime). However, since Part 4 of Art. 91 of the Labor Code of the Russian Federation obliges the employer to keep records of the time actually worked by each employee, it is better to keep records of processing - including in order to confirm its episodic nature. Only you need to do this in a separate journal, and not in the time sheet, so that it is not considered overtime.

In the case of irregular working hours, employees are required to comply with the internal labor regulations. And as noted in the Rostrud Letter dated 07.06.2008 No. 1316-6-1, the introduction of such a regime for workers does not mean that they are not subject to the rules that determine the start and end times of work, the procedure for recording working hours, etc.

Compensation for irregular work

In accordance with Art. 116 of the Labor Code of the Russian Federation, an employee working on an irregular working day must be granted an additional annual paid leave. The specific duration of such leave is determined by collective agreements or local regulations, which are adopted taking into account the opinion of the elected body of the primary trade union organization. At the same time, the minimum duration of an additional paid vacation is three calendar days (Article 119 of the Labor Code of the Russian Federation).

Note: The rules for granting an additional annual paid leave to employees with irregular working hours in federal government agencies approved by Resolution No. 884 (hereinafter referred to as the Rules).

According to the Rules, the duration of additional leave for relevant positions is established by the internal labor regulations of the institution and depends on the amount of work, the degree of labor intensity, the employee's ability to perform his labor functions outside the normal working hours and other conditions. In this case, the right to additional leave arises for the employee regardless of the duration of work in conditions of irregular working hours.

Additional leave provided to employees with irregular working hours is summed up with the annual basic paid leave (including extended leave), as well as other annual additional paid leaves.

In case of postponement or non-use of additional leave, dismissal, the right to said leave is exercised in the manner prescribed labor legislation RF for annual paid vacations.

It is not provided for the provision of additional leave for irregular working hours in proportion to the hours worked in the working year and for other employees (not working in federal state institutions). This is indicated in the Letter of Rostrud dated May 24, 2012 No. PG / 3841-6-1.

In accordance with Art. 126 of the Labor Code of the Russian Federation, an employee has the right to refuse to use additional leave. In this case, such leave may be replaced monetary compensation.

Note: additional leave is granted to the employee, even if there were no overtime. In this regard, if the employer does not keep records of overtime hours, this should not affect the granting of vacation and is not a violation.

Irregular working hours and overtime

Although irregular working hours and overtime work means working in excess of the established norm, it is absolutely different concepts... Moreover, the regime of irregular working hours for employers, of course, sometimes this leads to the fact that overtime work is formally replaced by the regime of irregular working hours. To show the difference between overtime and overtime work, we present a table.

Question:

Can an employee with irregular working hours be involved in overtime work?

Answer:

If the employer understands that the need to work beyond normal working hours occurs more often than sporadically, the employee can be involved in overtime work. Despite the fact that in practice such a combination is rare, no prohibition is established by the Labor Code. Only this should be done on different days.

The judges do not find anything illegal in such a decision (Appellate ruling of the court of 16.10.2012 in case No. 33-3284-2012).

Summing up, we once again note the distinctive features of the irregular working day regime:

1. Such a regime is established only for employees included in the list of positions determined by the collective agreement, agreements or local regulations.

2. The condition on the regime of irregular working hours and the duration of additional leave must be established by an employment contract or additional agreement to him.

3. The employee is involved in such work, if necessary and occasionally.

In addition, remember that it is impossible not to provide additional leave if there were no overtime, to provide leave for less than three calendar days and set an irregular day for part-time work.

Also, the employer should take into account that engaging the employee regularly and systematically to perform official duties in excess of the established normal working hours can be recognized as overtime work, but already in court. And then the employee will be given additional leave and the employer will be obliged to pay for work in excess of the norm as overtime.

In order to avoid disputes, it is better to fix in the local act the provision on in which cases the attraction to additional work is considered episodic within the framework of an irregular working day. If overtime becomes permanent, the employee can be involved in overtime work with his consent.

overtime work additional leave employment contract