Law 169 of April 30, 1930. Regulations on regular and additional vacations. III. Time and procedure for using vacation

REGULATIONS
about regular and additional vacations

Document with changes made:
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decree of the Council of People's Commissars of the USSR of October 22, 1942 N 1725;
by the resolution of the Council of Ministers of the USSR of December 6, 1956 N 1586;
resolution of the USSR Council of Ministers of March 21, 1961 N 254;
by a joint resolution of the USSR State Committee for Labor and the All-Union Central Council of Trade Unions Presidium of December 29, 1962 N 377/30;
by order of the Ministry of Health and Social Development of Russia of April 20, 2010 N 253.

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These Rules are valid to the extent that they do not contradict the Labor Code of the Russian Federation.
- Note from the manufacturer of the database.
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(Issued on the basis of the decree of the Council of People's Commissars of the USSR of February 2, 1930 - protocol N 5/331, paragraph 28).
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The resolution has not been published.

I. Right to leave

1. Each employee who has worked for this employer for at least 5 months has the right to receive another vacation.

The next vacation is granted once during the year of work of the employee with the given employer, counting from the date of employment, i.e. once a working year.

The right to the next regular vacation on account of the new working year arises from the employee after 5 months from the date of the end of the previous working year.

Employees who came to this employer in 1929 or earlier are granted leave in compliance with Article 37.

If an employee is transferred at the suggestion of a labor body or a commission under it, or at the suggestion of a party, Komsomol or professional organization from one enterprise or institution to another, without interruption in work, then the length of service, which gives the right to leave, counts the time worked for the previous employer - provided that the employee, of his own free will, did not receive compensation for unused vacation (the part is additionally included by the resolution of the People's Commissariat of Labor of the USSR of January 31, 1931 N 32).

Example. The worker entered the plant on February 3, 1930. On July 18, 1930, he receives the right to another vacation on account of the year of his work, i.e. until February 3, 1931. Right to next vacation on account of the second year of work on February 3, 1932, he will receive on July 18, 1931, etc.

2. There may be cases when an employee leaves before the end of the working year for which he has already received leave. In these cases, when calculating, the employer has the right to make a deduction from the salary for unworked vacation days.

Withholding is not allowed if the employee leaves due to:

a) liquidation of an enterprise or institution or its individual parts, reduction of staff or work, as well as reorganization or temporary suspension of work;

b) receipts for a valid military service;

c) sending in the established order to a higher educational institution, technical school, a workers 'school, a preparatory department at a higher educational institution, or to training courses for a higher educational institution or a workers' school;

d) transfer to another job at the suggestion of a labor body or a commission under it, as well as a party, Komsomol or professional organization;

e) revealed unsuitability for work.

The paragraph does not apply on the territory of the Russian Federation - order of the Ministry of Health and Social Development of Russia of April 20, 2010 N 253.
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Paragraph 3 of clause 2 of these Rules is recognized as invalid on the territory of the Russian Federation on the basis of the order of the Ministry of Health and Social Development of Russia dated March 3, 2005 N 190.
Order of the Ministry of Health and Social Development of Russia of March 3, 2005 N 190 was returned without consideration of the Ministry of Justice of the Russian Federation (letter of the Ministry of Justice of Russia of March 31, 2005 N 01/2337-VYa) and canceled on the basis of order of the Ministry of Health and Social Development of Russia of April 20, 2010 N 252.
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This entire article applies regardless of whether the vacation is used after 5 1/2 months of work or before this period - in advance (Article 12).

3. If the employee quit before the end of the working year for which he has already received vacation or full compensation, then the new employer has 5 1/2 months of work, which gives the right to vacation, is calculated as follows:

a) if upon dismissal a deduction was made for all unworked vacation days, then 5 1/2 months is considered from the date of receipt by the new employer;

b) if, upon dismissal, the employer, having the right to retention, did not actually make it at all or in part, then 5 1/2 months begins when the employee works for the new employer for one month for each unworked day of leave for which wage remained unstoppable (and with an 18- or 24-day vacation from the previous employer - one month for every one and a half or two days);

c) if, upon dismissal, the employer did not have the right to withholding, then the 5 1/2 months period begins after the expiration of the working year for which the vacation or full compensation was received from the previous employer; in this case, the period of a break in work after dismissal, as well as the time spent at work that does not give the right to leave (temporary, seasonal, etc.) are also included in the annual period.

Example 1 (to item "b"). The employer, dismissing the employee on August 15, 1931, had the right to deduct from him the wages for 5 unworked days of vacation, but in fact withheld it only for 2 days (since the employee was ill on the rest of August). On September 1, 1931, the worker joined a new employer. 5 1/2 months for a new vacation will begin with him only on December 1, 1931 and will expire on May 15, 1932.

Example 2 (to item "c"). On October 1, 1931, the employer dismissed an employee who had served with him since March 1, 1931 and had already used his leave to cut staff. On October 15, 1931, the worker entered a new employer. 5 1/2 months for a new vacation will begin with him only from March 1, 1932 and will expire on August 15, 1932.
(Article as amended by the resolution of the People's Commissariat of Labor of the USSR of December 14, 1930 N 365.

4. In the 5-month period of work, which gives the right to the next vacation, the following are included:

a) actually worked time;

b) the time when the employee did not actually work, but the employer was obliged by law or a collective agreement to retain his position and earnings in whole or in part (including the time when the employer paid for forced absence from improper dismissal and subsequent reinstatement at work);

c) the time when the employee, while retaining his position, did not actually work, but received benefits from the insurance fund (illness, injury, pregnancy, childbirth, quarantine, caring for a sick family member).

The rest of the time during which the employee did not actually work is not credited to the employee.

Example. The worker entered the workshop on March 5. From April 1 to April 15, he was ill and received benefits from the insurance fund during these days; on May 1-5, he was called up for a short-term gathering in the territorial unit; From June 1 to June 10, he did not go to work for reasons recognized by the employer as valid, but without payment for the missed time. The right to leave for such an employee arises after 5 months and another 10 days, i.e. August 30.

5. Not applicable - joint resolution of the USSR State Labor Committee and the All-Union Central Council of Trade Unions Presidium of December 29, 1962 N 377/30 ..

6. Receipt of vacation or compensation for it must be noted by the employer in the paybook and labor list - in accordance with the established forms of these documents. The same mark must be entered in the certificate issued to the employee upon dismissal.

In all these cases, the period for which the leave or compensation was granted must be indicated (for example, "I took the leave before June 1, 1931"). If, upon dismissal of an employee, the employer has the right to withhold wages for unworked vacation days (Article 2), then a note is added in the employee's documents: "the deduction for unworked vacation days has been fully paid" or "wages for so many vacation days remained unreserved" (part is supplemented by the resolution of the People's Commissariat of Labor of the USSR of December 14, 1930 N 365.

If the documents submitted by the employee do not contain instructions on the use of leave from the previous work, the employer may require a corresponding certificate from the employee or request it himself from the previous place of work.

II. Vacation duration

8. Employees with irregular working hours may be provided, as compensation for workload and work outside of working hours, additional leave.

The duration of this leave in government agencies and enterprises and mixed joint stock companies with a predominant state capital participation cannot exceed 12 working days.

9. Minor employees who, by the day of the emergence of the right to leave, have not reached the age of 18, as well as all students of factory and mining apprenticeships and schools of mass professions - the next vacation is granted in the amount of one calendar month (for example, from June 5 to July 5 ), but not less than 24 working days.

If these minors or students are admitted in accordance with the established procedure to work in especially harmful and dangerous professions listed in the lists of the NKT, then the next leave is granted to them in a total of one and a half calendar months, but not less than 36 working days.

III. Time and procedure for using vacation

11. Holidays should not be limited exclusively to the 1st and 15th days of each month, but should be distributed, if possible, evenly throughout the month.

12. When establishing a queue, it may be envisaged to grant leave to one or another employee before the onset of his right to leave (in advance).

The part was excluded by the resolution of the People's Commissariat of Labor of the USSR of December 14, 1930 N 365.

The example is excluded by the decree of the People's Commissariat of Labor of the USSR of December 14, 1930 N 365.

13. Holidays for minors are provided (in the order of the queue established by the RKK) according to general rule in summer. This does not deprive minors of the right to take leave at other times of the year.

14. There may be cases when the employee has the right to regular and additional leave arises in different times... In such cases, both leaves are provided to him at the same time in full within the period determined by the RKK when establishing the general queue of leaves. In this case, the period of work for a new vacation on account of the next working year is calculated separately for the next and additional vacation.

Example. An employee who entered the plant on March 10, 1930, is transferred to a harmful shop from May 10. He is entitled to another vacation on August 25, and to an additional one - only on October 25. On a first-come, first-served basis, he is granted both leave from 1 October Next year, he has the right to new vacations again; for the first vacation - August 25, and for the second - October 25.

15. Leave for the combined position is granted simultaneously with the leave for the main position.

16. The employer is obliged to promptly submit for consideration by the RKK (and in the absence of the RKK - for the consideration of the trade union) a draft distribution of the vacation queue.

The employer is also obliged to notify each employee of the start and end of his vacation. Notification is made no later than fifteen days in advance by posting relevant notices in workshops, workshops, departments and other places of work.

Workers taking leave in individually (for example, when postponing the vacation period), must be warned by written notice.

If, by the decision of the RKK, leave is granted to a group of employees out of turn due to an accident, natural disaster, etc., then the employees must be notified of the time of their leave no later than two days in advance.

17. Regular or additional leave must be rescheduled for another period or extended in the following cases:

a) in case of temporary incapacity for work of an employee, certified by a sick leave (certificate of incapacity for work) (subparagraph as amended by the Resolution of the Council of Ministers of the USSR of December 6, 1956 N 1586;

b) in the case of involving an employee in the performance of state or public duties;

c) in case of arrest of an employee;

d) in other cases provided for by special regulations.

The employer has the right to require the employee to submit documents proving the impossibility of using the vacation at the appointed time.

In addition, at the special request of the employee, the vacation must be postponed even if the employer did not timely notify the employee about the time of his vacation or did not pay the salary for the vacation in advance before the start of the vacation.

18. If the reasons preventing the employee from going on vacation occurred before its start, then the new vacation period is determined by agreement between the employer and the employee.

If these reasons occurred during the employee's vacation, then the period for returning from vacation is automatically extended by the appropriate number of days, and the employee must immediately notify the employer about this.

These days are paid by the employer in the event that, according to the law or contract, he was obliged to pay wages to the employee during the execution of the state or public duty or during the arrest.

When the vacation is extended due to temporary incapacity for work, the employer does not pay the additional days.

Example 1. An employee went on vacation on September 15 for a month. From October 1 to October 10, he was ill and received a sick leave and an allowance from the insurance fund. The leave must be extended to him until October 25, without payment by the employer, since thanks to the grant of the allowance, the additional days have already been paid when the vacation is granted. But if the employee has not received a sick leave, the vacation cannot be extended.

Example 2. An employee, while on vacation, was summoned to court by an expert for 3 days. The vacation must be extended by 3 days with payment for these days according to the average earnings.

19. The transfer of the entire vacation in other cases, except for those specified in Article 17, is allowed by agreement between the employer and the employee or by decision of the RKK, and division into parts of the next vacation (including the summarized one) - by agreement of the employer and employee.

In the absence of these conditions, the transfer and division of vacation is not allowed.

IV. Retention of position and earnings during vacation

20. Dismissal of an employee who is on regular or additional leave is not allowed, except for the following cases:

a) complete liquidation of an enterprise or institution;

b) suspension of work in the enterprise or institution as a whole for a period of more than one month for production reasons;

c) the entry into force of a guilty verdict in a case directly related to work in this enterprise or institution;

d) in the case when the dismissal is carried out in the order of cleaning the apparatus in the first or second category.

21. During the stay of the employee on the next or additional leave, his average earnings are retained.

Payment of earnings is made on the eve of the start of the vacation.

22. If during the employee's vacation his salary has changed, then the recalculation with the employee in connection with this change is not made, except for the case of an increase in the fixed rate or the salary of an employee who is paid by time. The enterprise or institution is obliged to pay this employee the difference between the old and the new rate or salary for the time from the day of the increase in pay.

Recalculation is performed in all cases of detection of irregularities in the calculation of wages.

V. Summation of vacations and compensation for vacations

23. Failure to grant the next vacation in the current year is allowed only if the granting of vacation this employee may adversely affect the normal course of business or institution.

For non-provision of leave, an agreement between the employer and the employee is required and the approval of this agreement by the pricing and conflict commission. In case of failure to reach an agreement between the employer and the employee, the issue is resolved by the RKK in a conflict manner.

24. Failure to provide regular vacations for two consecutive years is prohibited.

25. Failure to grant regular vacations to minors, as well as additional vacations in especially harmful and dangerous professions, with the exception of cases of dismissal of an employee, is prohibited.

26. In addition to cases of direct failure to provide leave (Article 23), the vacation is considered unused (in whole or in part) through the fault of the employer also in the following cases:

a) if the leave remained unused due to the failure of the employer to take measures to establish a queue of vacations;

b) if the vacation, which was subject to mandatory postponement, was not postponed for a new period.

27. In case of non-use of vacation (in whole or in part) through the fault of the employer, the employee must be paid monetary compensation for the unused vacation or the next year the vacation must be extended for an unused period.

To summarize the vacation, an agreement between the employer and the employee concerned is sufficient. The summation of vacation in case of disagreement of the employer or employee, as well as any payment of monetary compensation for the vacation (except in cases of dismissal) is allowed only by decision of the RKK.

The employee's refusal to use the vacation within the period established for him without agreement with the employer, and if an agreement is not reached, without the decision of the RKK does not give the employee the right to compensation or summation of the vacation.

28. Upon dismissal of an employee who has not used his right to leave, he is paid compensation for the unused vacation.

At the same time, employees who are dismissed for whatever reason, who have worked for this employer for at least 11 months, which are subject to offset in the period of work that gives the right to leave, receive full compensation.

Full compensation is also received by employees who have worked from 5 to 11 months if they leave as a result of (paragraph as amended by the resolution of the People's Commissariat of Labor of the USSR of August 13, 1930 N 267:

a) liquidation of an enterprise or institution or its individual parts, reduction of staff or work, as well as reorganization or temporary suspension of work (the item was additionally included by the decree of the People's Commissariat of Labor of the USSR of August 13, 1930 N 267);

b) admission to active military service (the item was additionally included by the decree of the People's Commissariat of Labor of the USSR of August 13, 1930 N 267);

c) sending in the established order to universities, technical schools, workers 'schools, preparatory departments at universities and courses for training in universities and workers' schools (the item was additionally included by the decree of the People's Commissariat of Labor of the USSR of August 13, 1930 N 267);

d) transfer to another job at the suggestion of labor bodies or commissions affiliated with them, as well as party, Komsomol and professional organizations (the item was additionally included by the Decree of the People's Commissariat of Labor of the USSR of August 13, 1930 N 267);

e) revealed unsuitability for work (the item was additionally included by the decree of the People's Commissariat of Labor of the USSR of August 13, 1930 N 267).

In all other cases, workers receive proportionate compensation. Thus, employees who have worked for 5 to 11 months receive proportionate compensation if they leave for any other reason other than the above (including on their own), as well as all employees who have worked for less than 5 months, regardless of the reasons for dismissal. * 28.4)

29. Full compensation is paid in the amount of average earnings for the duration of the full vacation.

Proportional compensation is paid in the following amounts: * 29.2)

a) for a vacation of 12 working days - in the amount of the daily average earnings for each month of work, subject to offset in the period giving the right to vacation;

b) with a vacation of 24 working days and with a monthly vacation - in the amount of two days' average earnings for each month;

c) with a one and a half month vacation - in the amount of three days, and with a two-month vacation - in the amount of four days' average earnings for each month.

When calculating the term of work that gives the right to compensation, Section I of these Rules shall apply accordingly.

Example 1. An employee entered the job on June 1, 1930, and leaves on March 1, 1931. He has the right to receive compensation for 9 months of work, i.e. for a vacation of 12 working days - in 9 days, for a vacation of 24 working days and a monthly vacation - in 18 days, for a month and a half vacation - in 27 days, and for a two-month vacation - in 36 days based on the daily average earnings.

Example 2. An employee went to work on March 1, and from June 1 was transferred to the workshop from harmful conditions work. Upon dismissal on August 1, he will receive compensation: for the next vacation - for 5 months of work, and for additional leave - for 2 months, and only seven days' earnings.

30. Compensation for extended leave on the basis of collective or written employment contract or on the basis of a mark in the paybook, it is paid in accordance with the vacation period established in the contract or paybook.

In other cases of optional extension of the leave by law, the employer is obliged to pay compensation in accordance with the generally established period of leave.

When summing up holidays, extended holidays are included in the calculation in all cases in full.

31. In case of a part-time job, compensation for the leave not used for the combined position is paid on a general basis.
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Clause 31 is no longer valid in relation to employees official salary which at the main place of work exceeds 60 rubles per month - the decree of the USSR Council of Ministers of March 21, 1961 N 254.
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32. Leave compensation is paid at the end of the year of employment, except in cases of employee dismissal.

33. In the event of the death of an employee, vacation compensation is paid on a general basis.

Vi. Final provisions

34. When paying wages or compensation for vacation, the average earnings are calculated in the manner prescribed by the decree of the NKT of the USSR of April 2, 1930 N 142 on the average earnings and payment for an incomplete month (Izvestia NKT SSSR, 1930, N 13).

In this case, the calculation is made according to the average earnings at a time actual payment wages or compensation.

35. When calculating the terms of work that give the right to proportional additional leave or compensation for leave upon dismissal, surpluses of less than half a month are excluded from the calculation, and surpluses of at least half a month are rounded up to a full month.

35-a. In institutions and in the management apparatus of enterprises of the socialized sector (in the boards of trusts, associations, etc., but not in factory administrations), these Rules are applied with the following additions:

a) During each month, 8-9 percent of all employees must go on vacation. In 1931, it was allowed to increase this rate to 12-15 percent from May 15 to October 1 (due to the incomplete preparedness of resorts and rest homes for work throughout 1931). Deviations from these norms are allowed only in the bodies associated with the maintenance of seasonal work.

The simultaneous granting of holidays to all employees of the institution or its individual parts is allowed only in cases where it is called working conditions (for example, if the inevitable suspension of work during the repair).

Example. The institution has 200 employees. Consequently, 16-18 employees must go on vacation each month. Since holidays should be provided evenly throughout the month, it is possible, for example, to provide holidays on the 3rd, 13th and 23rd or 7th, 17th and 27th, etc. - so that in each of these periods 5-6 employees go on vacation, and in just a month 16-18 employees.

b) Extension of vacation due to unused days off is prohibited.

c) It is prohibited to grant leave without pay, except for those cases when they are provided for by special laws (for example, laws on the distribution of young specialists to work after graduation from universities and technical schools).

d) When going on vacation, the transfer of unfinished work to other employees is not allowed.
(The article is additionally included by the decree of the People's Commissariat of Labor of the USSR of January 19, 1931 N 21)

36. In cases where special regulations are established for certain categories of workers (in particular, for workers in areas with particularly harmful climatic conditions) special rules for granting leave, these Rules do not apply to the extent that they contradict these special regulations. In the rest of its part, these Rules are applied on a general basis.

Special Rules on additional leaves for especially harmful climatic conditions attached.

37. For employees who came to this employer before July 16, 1929, the 5-month period of work, which gives the right to leave with this employer in 1930, is counted from January 1, 1930.

Employees who were admitted between July 10, 1929 and January 1, 1930, are also considered to be from January 1, 1930, if they acquired the right to proportional leave or proportional compensation in 1929 on the basis of a collective agreement. Otherwise, the term is counted from the date of employment.

For workers for whom the period of work giving the right to leave for 1930 is counted from January 1, 1930, the working year in further work for this employer is counted from January 1 to January 1 (i.e., coincides with the calendar year).

Example. The employee, working at the factory for 2 years, was on another vacation in 1928, and the vacation in 1929 was transferred to him in 1930. In 1930, he will receive a cumulative leave, and the period of work on leave in 1930 is considered with him from January 1, 1930.

Upon voluntary dismissal on October 1, 1930, prior to the use of the vacation, the employee will receive full compensation for the 1929 vacation and, in addition, proportional compensation for 9 months of work in 1930, counting from January 1.

38. When granting vacations in enterprises and institutions in 1930 and compensation for them, these Rules shall not apply to employees employed there who, by the date of entry into force of these Rules, have already used their leave for 1930 or are on leave for 1930.

39. For workers who were dismissed by their employer in 1930 prior to the entry into force of this Regulation and entered into a new employer in 1930, these Rules shall apply as follows:

a) if the employee was dismissed with proportional compensation for part of 1930, then the Rules apply to him on a general basis;

b) if the employee was dismissed after receiving full leave or full compensation for 1930, and in 1929 he also received the right to full leave or full compensation somewhere, then the period of work for a new vacation is considered from January 1, 1931;

c) if the employee was dismissed after receiving full leave or full compensation for 1930, and in 1929 he did not receive the right to full vacation or full compensation anywhere, then the period of work for a new vacation is considered from the day of the end of the year after joining the previous employer ...

Example. An employee first entered a wage job on October 1, 1929. Since he only worked for 3 months in 1929, he received no vacation or compensation for 1929. On April 1, 1930, he resigned with full compensation for 1930, and on June 1, 1930, he joined a new employer. The term of work for a new vacation will be considered only from October 1, 1930, when a year has passed from the date of employment with the previous employer.

40. Canceled:

1) Resolution of the NKT of the USSR of August 14, 1923 N 36 - Regulations on regular and additional vacations ("News of the NKT of the USSR and the RSFSR", 1923, N 4/28);

2) clarification of the NKT of the USSR of August 28, 1923 N 58 on the interpretation of Article 18 of the Rules on regular and additional vacations ("News of the NKT of the USSR and the RSFSR", 1923, N 4/28);

3) clarification of the NKT of the USSR of August 23, 1924 N 357/30 on the interpretation of Articles 12-14 of the Rules on regular and additional vacations ("Izvestiya NKT USSR", 1924, N 31);

4) clarification of the NKT of the USSR of October 24, 1924 N 446/38 on the procedure for calculating compensation for unused leave and maintenance during the vacation (Izvestia NKT SSSR, 1924, N 43);

5) clarification of the USSR NKT of June 16, 1928 N 132/350 on the duration of vacations for persons under 18 years of age and employed in professions that give the right to additional leave for harmful work (Izvestia NKT SSSR, 1926, N 24 -25);

6) clarification of the USSR NKT of April 30, 1929 N 155 about the duration of the vacation ("Izvestia NKT USSR", 1929, N 20-21).

41. Article 1 of the USSR NKT decree of February 21, 1928 on the working conditions of overgrown pupils in factory and mining apprenticeships (Izvestiya NKT SSSR, 1928, N 11) excludes the word "vacations".

People's Commissar
Labor of the USSR
Uglanov

Member of the NKT USSR Collegium
and head. Organizational and Legal
Department of NKT USSR
Serina

Appendix to Article 36. Rules on additional leave for particularly harmful climatic conditions

Appendix to
article 36 of the Rules
regular and additional vacations

(modified on 13 August 1930)
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Abolished on the basis of
resolution of the Council of People's Commissars of the USSR of October 22, 1942 N 1725. -

See previous edition
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People's Commissar
Labor of the USSR
Uglanov

Member of the Board
NKT USSR and head. Security Department
Labor NKT USSR
Zheltov

Document revision taking into account
changes and additions prepared
JSC "Codex"

SUPREME COURT OF THE RUSSIAN FEDERATION

In the name of the Russian Federation

The Supreme Court of the Russian Federation, composed of:

Judges The Supreme Court RF Zelepukina A.N.,

Under secretary E.N. Stepanova,

With the participation of the prosecutor E.L. Voskoboinikova,

having considered in open court a civil case at the request of T. on the recognition as invalid and inapplicable to paragraph 29 of the "Regulations on regular and additional vacations", approved by the NKT of the USSR on April 30, 1930,

installed:

In accordance with clause 29 of the "Regulations on regular and additional vacations", approved by the NKT of the USSR on April 30, 1930, upon dismissal of an employee who did not use his right to vacation, he is paid compensation for unused vacation. At the same time, “full compensation is paid in the amount of average earnings for the period of full vacation.

Proportional compensation is paid in the following amounts:

a) for a vacation of 12 working days - in the amount of the average daily earnings for each month of work, subject to offset in the period giving the right to vacation;

b) with a vacation of 24 working days and with a monthly vacation - in the amount of two days' average earnings for each month;

c) with a one and a half month vacation - in the amount of three days, and with a two-month vacation - in the amount of four days' average earnings for each month.

When calculating the term of work that gives the right to compensation, Section 1 of these Regulations applies accordingly. "

T. filed the above statement, in which he pointed out the violation of his right to rest by the contested legal act and equal compensation for unused vacation.

In support of the stated requirements in the application, he argued that this regulatory legal act contradicts Part 3 of Art. 55 and art. 37 of the Constitution of the Russian Federation, as well as Art. Art. 3, 114 and 127 Labor Code Russian Federation.

T. did not appear at the hearing, asked to consider the case in his absence, and therefore his failure to appear does not interfere with the consideration of the case.

The representative of the Ministry of Healthcare and Social Development of the Russian Federation R. asked to dismiss the application, since the contested part of the normative legal act does not contradict the current legislation.

Having heard the conclusion of the prosecutor of the General Prosecutor's Office of the Russian Federation E.L. Voskoboinikova, who considered the application to be dismissed, the Supreme Court of the Russian Federation finds it subject to dismissal on the following grounds.

On April 30, 1930, in accordance with the existing procedure, the USSR NKT "Rules on regular and additional vacations" were approved, in paragraph 29 of which the procedure for calculating compensation for unused vacation is established.

This normative legal act is not included in the list of individual legislative acts that have expired, set out in Art. 422 of the Labor Code of the Russian Federation, and according to Art. 423 of this Code, the legislative acts of the former USSR in force on the territory of the Russian Federation within the limits and in the manner prescribed by the Constitution of the Russian Federation, Resolution of the Supreme Council of the RSFSR of December 12, 1991 N 2014-1 "On Ratification of the Agreement on the Creation of the Commonwealth of Independent States" are applied as they do not contradict this Code.

In accordance with Art. 127 of the Labor Code of the Russian Federation upon dismissal, the employee is paid monetary compensation for all unused holidays.

Monetary compensation for unused vacation is provided for by Art. 291 of the Labor Code of the Russian Federation for employees who have concluded an employment contract for up to two months, which is paid upon dismissal at the rate of two working days per month of work.

The applicant groundlessly refers to the existence of contradictions in the contested part normative act Art. Art. 3, 114 and 127 of the Labor Code of the Russian Federation.

So, Art. 3 of the Labor Code of the Russian Federation prohibits discrimination in the field of work, which includes restrictions on labor rights and freedoms or benefits based on gender, race, color, nationality, language, origin, property, social and official position, age, place of residence, attitude to religion, political convictions, belonging or not belonging to public associations, as well as from other circumstances not related to business qualities employee.

It does not follow from the contested provisions of the normative legal act that it is aimed at discriminating against employees in the labor sphere.

In accordance with Art. 114 of the Labor Code of the Russian Federation, employees are granted annual leave with preservation of their place of work (position) and average earnings.

This norm of the Labor Code of the Russian Federation also does not determine the procedure for calculating compensation for unused vacation, and therefore the part of the normative legal act contested by the applicant does not contradict it.

The norms of the Constitution of the Russian Federation cited by T. provide the right to work, including the right to rest and annual paid leave (Article 37), a prohibition on restricting rights, which is possible only by federal law in these cases (Article 55) in order to protect the foundations of the constitutional order , morality, health, rights and legitimate interests other persons, ensuring the country's defense and state security, are also not violated by the contested part of the normative act.

In accordance with Part 2 of Art. 253 of the Code of Civil Procedure of the Russian Federation, the court found that the contested normative legal act or part of it contradicts federal law or to another normative legal act of great legal force, recognizes the normative legal act as invalid in whole or in part.

Based on the above, guided by art. Art. 194 - 199, 253 h. 1 of the Code of Civil Procedure of the Russian Federation, Supreme Court of the Russian Federation

t.'s statement on the recognition as invalid and not subject to application of clause 29 of the "Regulations on regular and additional vacations", approved by the NKT of the USSR on April 30, 1930, shall not be satisfied.

The court decision can be appealed to the Cassation Board of the Supreme Court of the Russian Federation within 10 days from the date of its final form.

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REGULATIONS
ABOUT REGULAR AND ADDITIONAL HOLIDAYS

(Published on the basis of the Decree of the Council of People's Commissars of the USSR of February 2, 1930 - Protocol No. 5/331, p. 28)
(as amended by the Resolutions of the NKT of the USSR of 08/13/1930 N 267, of 12/14/1930 N 365,
01/19/1931 N 21, 01/31/1931 N 32, Resolutions of the All-Union Central Council of Trade Unions of 02/02/1936 (Protocol N 164), Resolutions of the USSR Council of Ministers of 12/06/1956 N 1586,
Resolutions of the State Committee for Labor of the USSR, the Presidium of the All-Union Central Council of Trade Unions from December 29, 1962 N 377/30, Order of the Ministry of Health and Social Development of the Russian Federation of 03.03.2005 N 190)

I. Right to leave

1. Every employee who has worked for this employer for at least 5 1/2 months has the right to receive another vacation.
The next vacation is granted once during the year of the employee's work with the given employer, counting from the date of employment, that is, once per working year.
The right to the next regular vacation on account of the new working year arises for the employee after 5 1/2 months from the date of the end of the previous working year.
Employees who came to this employer in 1929 or earlier are granted leave in compliance with Art. 87.
If an employee is transferred at the suggestion of a labor body or a commission under it, or at the suggestion of a party, Komsomol or professional organization from one enterprise or institution to another, without interruption in work, then the length of service, which gives the right to leave, is counted the time worked for the previous employer - provided that the employee voluntarily did not receive compensation for unused vacation during this time.
(part five was introduced by the Decree of the NKT of the USSR of 01/31/1931 N 32)
Example. The employee entered the plant on February 3, 1930. On July 18, 1930, he receives the right to another vacation on account of the year of his work, i.e. until February 3, 1931. He will receive the right to the next vacation on account of the second year of work until February 3, 1932 on July 18, 1931, etc.
2. There may be cases when an employee leaves before the end of the working year for which he has already received leave. In these cases, when calculating, the employer has the right to make a deduction from the salary for unworked vacation days.
Withholding is not allowed if an employee is dismissed due to: a) liquidation of an enterprise or institution or its separate parts, reduction of staff or work, as well as reorganization or temporary suspension of work; b) admission to active military service; c) sending in the established order to a university, a technical school, a workers 'school, a preparatory department at a higher educational institution or training courses for a university or a workers' faculty; d) transfer to another job at the suggestion of a labor body or a commission affiliated with it, as well as a party, Komsomol or professional organization; e) revealed unsuitability for work.
The paragraph does not apply on the territory of the Russian Federation. - Order of the Ministry of Health and Social Development of the Russian Federation of 03.03.2005 N 190.
This entire article applies regardless of whether the vacation is used after 5 1/2 months of work or before this period - in advance (Art. 12).
Example. The worker entered on January 15, 1931. He received full leave from July 15, and on August 15, 1931 he resigned at his own request. The employer can deduct 5 days' wages from him, since the employee received 12 vacation days in 12 months of work and did not complete 5 months of them.
3. If the employee quit before the end of the working year, on account of which he has already received vacation or full compensation, then the new employer has 5 1/2 months of work, which gives the right to vacation, is calculated as follows:
a) if, upon dismissal, a deduction was made for all unworked vacation days, then 5 1/2 months is considered from the date of receipt by the new employer;
b) if, upon dismissal, the employer, having the right to retention, did not actually make it at all or in part, then 5 1/2 months begins when the employee works for the new employer for one month for each unworked day of leave for which the wages remained unretained (and with 18- or 24-day leave from the previous employer - one month for every one and a half or two days);
c) if, upon dismissal, the employer did not have the right to withholding, then 5 1/2 months begins after the expiration of the working year for which the vacation or full compensation was received from the previous employer; in this case, the period of a break in work after dismissal, as well as the time spent at work that does not give the right to leave (temporary, seasonal, etc.) are also included in the annual period.
Example 1 (to item "b"). The employer, dismissing the employee on August 15, 1931, had the right to deduct from him the wages for 5 unworked days of vacation, but in fact withheld it only for 2 days (since the employee was ill on the rest of August). On September 1, 1931, the worker joined a new employer. 5 1/2 months for a new vacation will begin with him only on December 1, 1931 and will expire on May 15, 1932.
Example 2 (to item "c"). On October 1, 1931, the employer dismissed an employee who had served with him since March 1, 1931 and had already used his leave to cut staff. On October 15, 1931, the worker entered a new employer. 5 1/2 months for a new vacation will begin with him only from March 1, 1932 and will expire on August 15, 1932.
4. The 5 1/2-month term of work, which gives the right to the next vacation, includes:
a) actually worked time;
b) the time when the employee did not actually work, but the employer was obliged by law or a collective agreement to retain his position and earnings in full or in part (including the time when the employer paid for forced absence from improper dismissal and subsequent reinstatement at work);
c) the time when the employee, while retaining his position, did not actually work, but received benefits from the insurance fund (illness, injury, pregnancy, childbirth, quarantine, caring for a sick family member).
The rest of the time during which the worker did not actually work is not credited to the worker.
Example. The worker entered the workshop on March 5. From April 1 to April 15, he was ill and received benefits from the insurance fund during these days; on days 1 - 5 May he was called up for a short-term collection in the territorial unit; From June 1 to June 10, he did not go to work for reasons recognized by the employer as valid, but without payment for the missed time. The right to leave for such an employee arises after 5 1/2 months and another 10 days, i.e. August 30.
5. Not applicable. - Resolution of the USSR State Labor Committee, the All-Union Central Council of Trade Unions Presidium of December 29, 1962 N 377/30.
6. Receipt of leave or compensation for it must be noted by the employer in the paybook and labor list - in accordance with the established forms of these documents. The same mark must be entered in the certificate issued to the employee upon dismissal.
In all these cases, the period for which the vacation or compensation was granted must be indicated (for example, "the vacation was used up to June 1, 1931"). If, upon dismissal of an employee, the employer has the right to withhold wages for unworked vacation days (Article 2), then a note is added to the employee's documents: "the deduction for unworked vacation days has been fully paid" or "wages remained unreserved for so many vacation days" ...
If the documents submitted by the employee do not contain instructions on the use of leave from the previous job, the employer may require a corresponding certificate from the employee or request it himself from the previous place of work.

II. Vacation duration

7. Regular leave for adult employees is provided in all cases for 12 working days, with the addition of days off falling on vacation time.
In the same amount, full additional leave is granted to workers employed in especially harmful and dangerous conditions, according to the lists of professions established by the CNT or a collective agreement, if these lists do not provide for leave of a different duration.
8. Employees with irregular working hours may be provided, as compensation for workload and work outside of working hours, additional leave.
The period of this leave in state institutions and enterprises and mixed joint stock companies with a predominant state capital participation cannot exceed 12 working days.
9. Minor employees who have not reached the age of 18 by the day of the emergence of the right to leave, as well as all students of factory and mining apprenticeship schools and schools of mass professions - the next vacation is granted in the amount of one calendar month (for example, from June 5 to July 5), but not less than 24 working days.
If these minors or students are admitted in accordance with the established procedure to work in especially harmful and dangerous professions listed in the lists of the NKT, then the next leave is granted to them in a total of one and a half calendar months, but not less than 36 working days.

III. Time and procedure for using vacation

10. Holidays are provided to employees at any time throughout the year in the order of the queue established by the RKK, and in the absence of the RKK - by agreement of the employer with the relevant body of the trade union.
The sequence for granting leave for each year is established no later than January 1 of this year (for 1931 - no later than January 25, 1931).
Leave can be granted both sequentially to one employee after another, and simultaneously to all or some groups of employees (for example, when the inevitable suspension of the enterprise for repairs).
In the event of an unexpected suspension of work in an enterprise or institution or in its individual parts (due to an accident, natural disaster, etc.), by decision of the RKK, leave may be provided to all groups or some groups of employees simultaneously, with a deviation from the previously established queue.
11. Holidays should not be limited exclusively to the 1st and 15th days of each month, but should be distributed, if possible, evenly throughout the month.
12. When establishing a queue, it may be envisaged to grant leave to one or another employee before the onset of his right to leave (in advance).
Part two is excluded. - Resolution of the NKT of the USSR of 12/14/1930 N 365.
Example excluded. - Decree of the NKT of the USSR of 12/14/1930 N 365.
13. Vacations for minors are provided (in the order of the queue established by the RKK) as a general rule in the summer. This does not deprive minors of the right to take leave at other times of the year.
14. There may be cases when an employee has the right to regular and additional leave at different times. In such cases, both leaves are provided to him at the same time in full within the period determined by the RKK when establishing the general queue of leaves. In this case, the period of work for a new vacation on account of the next working year is calculated separately for the next and additional vacation.
Example. An employee who entered the plant on March 10, 1930, is transferred to a harmful shop from May 10. He is entitled to another vacation on August 25, and to an additional one - only on October 25. On a first-come, first-served basis, he is granted both leave from 1 October. Next year, he has the right to new vacations again; for the first vacation - August 25, and for the second - October 25.
15. Leave for the combined position is granted simultaneously with the leave for the main position.
16. The employer is obliged to promptly submit for consideration by the RKK (and in the absence of the RKK - for the consideration of the trade union) a draft distribution of the vacation queue.
The employer is also obliged to notify each employee of the start and end of his vacation. Notification is made no later than fifteen days in advance by posting relevant notices in workshops, workshops, departments and other places of work.
Employees receiving leave on an individual basis (for example, when postponing the leave) must be warned by written notice.
If, by the decision of the RKK, leave is granted to a group of employees out of turn due to an accident, natural disaster, etc., then the employees must be notified of the time of their leave no later than two days in advance.
17. Regular or additional leave must be rescheduled for another period or extended in the following cases:
a) in case of temporary disability of an employee, certified by a sick leave (sick leave);
b) in the case of involving an employee in the performance of state or public duties;
c) in case of arrest of an employee;
d) in other cases provided for by special regulations.
The employer has the right to require the employee to submit documents proving the impossibility of using the vacation at the appointed time.
In addition, at the special request of the employee, the vacation should be postponed even if the employer did not timely notify the employee about the time of his vacation or did not pay the salary for the vacation in advance before the start of the vacation.
18. If the reasons preventing the employee from going on vacation occurred before its start, then the new vacation period is determined by agreement between the employer and the employee.
If these reasons occurred during the employee's vacation, then the period for returning from vacation is automatically extended by the appropriate number of days, and the employee must immediately notify the employer of this.
These days are paid by the employer if, according to the law or contract, he was obliged to pay the employee's wages during the execution of state or public duties or during the arrest.
When the vacation is extended due to temporary incapacity for work, the employer does not pay the additional days.
Example 1. An employee went on vacation on September 15 for a month. From October 1 to October 10, he was ill and received a sick leave and an allowance from the insurance fund. His leave must be extended until October 25, without payment by the employer, since thanks to the grant of the allowance, the additional days have already been paid for when the leave is granted. But if the employee has not received a sick leave, the vacation cannot be extended.
Example 2. An employee, while on vacation, was summoned to court by an expert for 3 days. The vacation must be extended by 3 days with payment for these days according to the average earnings.
19. The transfer of the entire vacation in other cases, except for those specified in Art. 17, is allowed by agreement between the employer and the employee or by decision of the RKK, and division into parts of the next vacation (including the summarized one) - by agreement of the employer and employee.
In the absence of these conditions, the transfer and division of vacation is not allowed.

IV. Retention of position and earnings during vacation

20. Dismissal of an employee who is on regular or additional leave is not allowed, except for the following cases:
a) complete liquidation of an enterprise or institution;
b) suspension of work in the enterprise or institution as a whole for a period of more than one month for production reasons;
c) entry into force of a guilty verdict in a case directly related to work in a given enterprise or institution;
d) in the case when the dismissal is carried out in the order of cleaning the apparatus in the first or second category.
21. During the period of an employee's stay on regular or additional leave, his average earnings are retained.
Payment of earnings is made on the eve of the start of the vacation.
22. If during the employee's vacation his salary has changed, then the recalculation with the employee in connection with this change is not made, except for the case of an increase in the fixed rate or the salary of an employee who is paid by time. The enterprise or institution is obliged to pay this employee the difference between the old and the new rate or salary for the time from the day of the increase in pay.
Recalculation is performed in all cases of detection of irregularities in the calculation of wages.
Note: Clause 22 has actually lost force in terms of the procedure for calculating average earnings for vacation pay and compensation for unused vacation in connection with the publication of the AUCCTU Resolution of 02.02.1936 (Protocol No. 164).

V. Summation of vacations and compensation for vacations

23. Failure to grant the next leave in the current year is allowed only if the granting of leave to this employee may adversely affect the normal course of work of the enterprise or institution.
For non-provision of leave, an agreement between the employer and the employee is required and the approval of this agreement by the pricing and conflict commission. In case of failure to reach an agreement between the employer and the employee, the issue is resolved by the RKK in a conflict manner.
24. Failure to grant regular vacations for two consecutive years is prohibited.
25. Failure to grant regular vacations to minors, as well as additional vacations in especially harmful and dangerous professions, with the exception of cases of dismissal of an employee, is prohibited.
26. In addition to cases of direct non-provision of leave (Article 23), the leave is considered not used (in whole or in part) through the fault of the employer also in the following cases:
a) if the leave remained unused due to the failure of the employer to take measures to establish a queue of vacations;
b) if the vacation, which was subject to mandatory postponement, was not postponed for a new period.
27. In case of non-use of vacation (in whole or in part) through the fault of the employer, the employee must be paid monetary compensation for the unused vacation or the next year the vacation must be extended for an unused period.
To summarize the vacation, an agreement between the employer and the employee concerned is sufficient. The summation of vacation in case of disagreement of the employer or employee, as well as any payment of monetary compensation for the vacation (except for cases of dismissal) is allowed only by decision of the RKK.
The employee's refusal to use the vacation within the period set for him without agreement with the employer, and if an agreement is not reached - without the permission of the RKK - does not give the employee the right to compensation or summation of the vacation.
28. Upon dismissal of an employee who has not used his right to vacation, he is paid compensation for the unused vacation.
At the same time, employees who are dismissed for whatever reason, who have worked for this employer for at least 11 months, which are subject to offset in the period of work that gives the right to leave, receive full compensation.
Employees who have worked from 5 1/2 to 11 months also receive full compensation if they leave due to:
a) liquidation of an enterprise or institution or its individual parts, reduction of staff or work, as well as reorganization or temporary suspension of work;
b) admission to active military service;
c) sending in the established order to universities, technical schools, workers 'schools, preparatory departments at universities and courses for training in universities and workers' schools;
c) transfer to another job at the suggestion of labor bodies or commissions with them, as well as party, Komsomol and professional organizations;
e) revealed unsuitability for work.
In all other cases, workers receive proportionate compensation. Thus, proportional compensation is received by employees who have worked from 5 1/2 to 11 months if they quit for any other reason other than the above (including of their own free will), as well as all employees who have worked less than 5 1/2 months, regardless of the reasons for dismissal.
29. Full compensation is paid in the amount of average earnings for the duration of the full vacation.
Proportional compensation is paid in the following amounts:
a) for a vacation of 12 working days - in the amount of the average daily earnings for each month of work, subject to offset in the period giving the right to vacation;
b) with a vacation of 24 working days and with a monthly vacation - in the amount of two days' average earnings for each month;
c) with a one and a half month vacation - in the amount of three days, and with a two-month vacation - in the amount of four days' average earnings for each month.
When calculating the term of work that gives the right to compensation, Section I of these Rules shall apply accordingly.
Example 1. An employee started working on June 1, 1930 and leaves the job on March 1, 1931. He has the right to receive compensation for 9 months of work, i.e. for a vacation of 12 working days - in 9 days, for a vacation of 24 working days and a monthly vacation - in 18 days, for a month and a half vacation - in 27 days, and for a two-month vacation - in 36 days based on the daily average earnings.
Example 2. An employee went to work on March 1, and from June 1 he was transferred to a workshop with harmful working conditions. Upon dismissal on August 1, he will receive compensation: for the next vacation - for 5 months of work, and for additional - for 2 months, and only seven days' earnings.
30. Compensation for extended leave on the basis of a collective or written employment contract or on the basis of a mark in the paybook is paid in accordance with the period of leave specified in the agreement or paybook.
In other cases of optional extension of the leave by law, the employer is obliged to pay compensation in accordance with the generally established period of leave.
When summing up holidays, extended holidays are included in the calculation in all cases in full.
31. In case of a part-time job, compensation for the leave not used for the combined position is paid on a general basis.
32. Leave compensation is paid at the end of the year of employment, except in cases of employee dismissal.
33. In the event of the death of an employee, vacation compensation is paid on a general basis.

Vi. Final provisions

34. When paying wages or compensation for leave, the average earnings are calculated in the manner prescribed by the Decree of the Council of People's Commissars of the USSR on July 25, 1935.
35. When calculating the terms of work that give the right to proportional additional leave or compensation for leave upon dismissal, surpluses of less than half a month are excluded from the calculation, and surpluses of at least half a month are rounded up to a full month.
35-a. In institutions and in the management of enterprises of the socialized sector (in the boards of trusts, associations, etc., but not in factory administrations), these Rules are applied with the following additions:
a) During each month, 8 - 9 percent of all employees must go on vacation. In 1931, it was allowed to increase this rate to 12-15 percent in the period from May 15 to October 1 (due to the incomplete preparedness of resorts and rest homes for work throughout 1931). Deviations from these norms are allowed only in the bodies associated with the maintenance of seasonal work.
The simultaneous granting of vacations to all employees of the institution or its individual parts is allowed only in cases where it is caused by production conditions (for example, when the inevitable suspension of work during the repair).
Example. The institution has 200 employees. Consequently, during each month, 16-18 employees must go on vacation. Since holidays should be provided evenly throughout the month, it is possible, for example, to provide holidays on the 3rd, 13th and 23rd or 7th, 17th and 27th, etc. - so that in each of these terms 5 - 6 employees go on vacation, and in just a month 16 - 18 employees.
b) Extension of vacation due to unused days off is prohibited.
c) It is prohibited to grant leave without pay, except for those cases when they are provided for by special laws (for example, laws on the distribution of young specialists to work after graduation from universities and technical schools).
d) When going on vacation, the transfer of unfinished work to other employees is not allowed.
36. In cases where special regulations are established for certain categories of workers (in particular, for workers in areas with particularly harmful climatic conditions) special rules for granting leave, these Rules do not apply insofar as they contradict these special regulations. In the rest of its part, these Rules are applied on a general basis.
Special Rules on additional leaves for especially harmful climatic conditions are attached (not shown).
Note: Clause 36 actually became invalid due to the publication of the Decree of the State Committee of Labor of the USSR, the Presidium of the All-Union Central Council of Trade Unions of 24.12.1960 N 1353/28, which approved a new List of industries, workshops, professions and positions with harmful working conditions, work in which gives the right to additional leave and a shorter working day, as well as the Resolutions of the USSR State Committee of Labor, the All-Union Central Council of Trade Unions Presidium of December 29, 1962 N 377/30, which approved the Instruction on the procedure for applying the said List.
37. For employees who came to this employer before July 16, 1929, the 5 1/2 months period of work, which gives the right to leave with this employer in 1930, is considered from January 1, 1930.
Employees who were admitted between July 16, 1929 and January 1, 1930, are also deemed to be from January 1, 1930 if they acquired the right to proportional leave or proportional compensation in 1929 on the basis of a collective agreement. Otherwise, the term is counted from the date of employment.
For workers for whom the period of work that gives the right to leave for 1930 is counted from January 1, 1930, the working year in further work for this employer is counted from January 1 to January 1 (i.e., coincides with the calendar year).
Example. The worker, working at the factory for 2 years, in 1928 was on another vacation, and the vacation in 1929 was transferred to him in 1930. In 1930 he will receive a summarized vacation, and the period of work on vacation in 1930 is considered with him from January 1, 1930
Upon voluntary dismissal on October 1, 1930, prior to using the vacation, the employee will receive full compensation for the 1929 vacation and, in addition, proportional compensation for 9 months of work in 1930, counting from January 1.
38. When granting vacations in enterprises and institutions in 1930 and compensation for them, these Rules shall not apply to employees employed in them, who, by the date of entry into force of these Rules, have already used their leave for 1930 or are on leave for 1930. ...
39. To employees who were dismissed by the employer in 1930 before the entry into force of these Rules and entered in 1930 to a new employer - these Rules apply as follows:
a) if the employee was dismissed with proportional compensation for part of 1930, then the Rules apply to him on a general basis;
b) if the employee was dismissed after receiving full leave or full compensation for 1930, and in 1929 he also received the right to full leave or full compensation somewhere, then the period of work for a new vacation is considered from January 1, 1931;
c) if the employee was dismissed after receiving full leave or full compensation for 1930, and in 1929 he did not receive the right to full leave or full compensation anywhere, then the period of work for a new leave is considered from the day of the end of the year after starting to work by previous employer.
Example. The worker was first employed on October 1, 1929. Since he worked in 1929 for only 3 months, he did not receive any leave or compensation in 1929. On April 1, 1930, he resigned with full compensation for 1930, and on June 1, 1930 he joined a new employer. The term of work for a new vacation will be considered only from October 1, 1930, when a year has passed from the date of employment with the previous employer.

Judicial practice of the region in cases of collection of wages.

In preparing the summary, the appellate rulings of the regional court for 2015 were analyzed. The study of practice showed that the courts made mistakes in the application of the provisions of the law on the time frame for going to court, which entailed a change judgments with the collection in favor of the employee of the payments due, in particular compensation for the delay in issuance work book (Article 234 of the Labor Code of the Russian Federation), or refusal to satisfy the stated requirements.

In addition, there were cases of incorrect application by courts of substantive law when determining the size of the average earnings for the period of employment of a dismissed employee, as well as errors in determining the amount of unpaid wages when an employee is dismissed.

As an example of misuse labor legislation In relation to claims for the recovery of wages, the Court of Appeal analyzes, in particular, the following case. F. went to court with a claim against JSC "***" for the collection of wage arrears, compensation for unused leave, interest, monetary compensation for moral damage. In support of the claim, he indicated that since / DATE / year was in labor relations with JSC "***" in the position of deputy chief mechanic of the department on the basis of an employment contract, which / DATE / year was terminated due to staff reduction. On the day of dismissal, a settlement was made with him, including with the payment of compensation for unused vacation in the amount of *** rubles. *** cop. Believes that the employer paid him / her salary for / DATE / year and compensation for unused vacation not in full.

By the decision of the Kirov City Court, F.'s claims were denied. The court of first instance indicated that paragraph 28 of the Regulations on regular and additional vacations, approved by the NKT of the USSR on April 30, 1930, No. 169, applies to employees of the organization who have worked for less than one year, and in all other cases, employees receive compensation in proportion to the hours worked.

Judicial board for civil affairs The Murmansk Regional Court did not agree with these conclusions of the court on the following grounds. Clause 28 of the Rules on regular and additional vacations, approved by the NKT of the USSR on April 30, 1930, No. 169 (hereinafter referred to as the Rules), which continue to operate at the present time in accordance with Article 423 of the Labor Code of the Russian Federation as not contradicting the said Code, established that upon dismissal of an employee who has not used his right to leave, he is paid compensation for the unused vacation. At the same time, employees who are dismissed for whatever reason, who have worked for this employer for at least 11 months, which are subject to offset in the period of work that gives the right to leave, receive full compensation.

Full compensation is also received by employees who have worked from 5 ½ to 11 months if they leave, inter alia, as a result of the liquidation of an enterprise or institution or individual parts of it, reduction of staff or work, as well as reorganization of certain parts of it, reduction of staff or work, and also reorganization or temporary suspension of works. In all other cases, workers receive proportionate compensation.

Thus, employees who have worked from 5 ½ to 11 months receive proportional compensation if they leave for any other reason other than the above (including of their own free will), as well as all employees who have worked less than 5 ½ months, regardless from the reasons for dismissal.

There is no indication in these provisions that full compensation for layoffs to reduce the number of employees who worked prior to the layoff from 5 ½ to 11 months is paid only to employees in their first year at the enterprise.

The systemic interpretation of the norms of the Rules indicates that this norm applies to those workers who, after the expiration of the year for which they took leave, worked from 5 ½ months to 11 months and are dismissed due to staff reductions (paragraph 1.3 of clause 1, paragraph 4 paragraph 2 of the Rules).

This interpretation of the Rules is supported by the fact that a separate legal regulation With regard to the payment of compensation for unused vacation to employees who have been working for more than a year with the employer, these Rules do not contain (paragraph 29 of the Rules provides only the procedure for calculating full and proportional compensation).

Moreover, the wording contained in the conclusion of paragraph 28 of the Rules clearly indicates all categories of persons receiving proportional compensation - these are employees who have worked from 5 ½ to 11 months, if they leave for any other reasons other than those indicated above (including of their own free will), as well as all employees who have worked for less than 5 ½ months, regardless of the reasons for dismissal.

As follows from the Protocol of June 19, 2014 No. 2, which was approved by Rostrud at the meeting working group to inform and advise employees and employers on compliance with labor laws, the Rules inextricably link the right to leave with the employee's working year. Accordingly, the same approach should be used when applying paragraph 28 of the Rules.

In this norm, we are talking about 5.5 months of the working year, that is, about the period for which leave is granted, and not about the total duration of work with this employer. A different interpretation puts workers in an unequal position who have worked in the organization for less than a year and work for a longer period.

At the same time, the prohibition of discrimination in the labor sphere, as well as the equality of rights and opportunities for workers are the most important principles of legal regulation of labor relations and other relations directly related to them (Article 2 of the Labor Code of the Russian Federation).

In such circumstances, the panel of judges concluded that the plaintiff's right to receive compensation for unused vacation in full, and not proportionally to the hours worked, and therefore compensation for unused vacation for the last working year in the amount of 44 calendar days per the amount of *** rubles *** kopeck, based on the average earnings *** ruble *** kopecks, the amount of which was determined by the defendant correctly.

The decision of the first instance court was canceled, a new decision was made in the case

REGULATIONS
ABOUT REGULAR AND ADDITIONAL HOLIDAYS

(Extract)

(as amended by the Resolutions of the NKT of the USSR from 13.08.30, from 14.12.30 N 365,
from 19.01.31 N 21, from 31.01.31 N 32; Resolutions of the All-Union Central Council of Trade Unions
from 02.02.36; Resolutions of the Council of Ministers of the USSR dated 06.12.56 N 1586)

I. Right to leave

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Law 169 of April 30, 1930. Regulations on regular and additional vacations. III. Time and procedure for using vacation

I. Right to leave

II. Vacation duration

III. Time and procedure for using vacation

IV. Retention of position and earnings during vacation

V. Summation of vacations and compensation for vacations

Vi. Final provisions

Appendix to Article 36. Rules on additional leave for particularly harmful climatic conditions

The last

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