We solve rotational problems. Rotational work method, annual schedule. Calculation of days of inter-shift rest What time is excluded from the calculation period

New edition of Art. 301 of the Labor Code of the Russian Federation

Working hours and rest time within the accounting period are regulated by the work schedule on the shift, which is approved by the employer, taking into account the opinion of the elected body of the primary trade union organization in the manner established by Article 372 of this Code for the adoption of local regulations, and is communicated to employees no later than two months before its entry into force.

The specified schedule provides for the time required for the delivery of workers to the shift and back. Days on the way to and from work work time are not included and may fall on days between shifts.

Each day of rest in connection with the processing of working hours within the work schedule on the shift (day of inter-shift rest) is paid in the amount of a day tariff rate, daily rate (part of the salary ( official salary) per day of work), if a higher pay is not established by a collective agreement, local regulation or an employment contract.

Hours of overworking of working time within the work schedule on a shift, not multiples of a whole working day, may accumulate during the calendar year and be summed up to whole working days with the subsequent provision of additional days of inter-shift rest.

Commentary on Article 301 of the Labor Code of the Russian Federation

According to the terminology of Article 100 of the Labor Code, the regime of work and rest, which is referred to in the title of Article 301 of the Labor Code, is the regime of working hours and hours of rest. Its features are regulated by Article 301 of the Labor Code, as well as by-laws in the manner prescribed by the Government of the Russian Federation.

Currently, one of the main special acts remains the Basic Provisions on the rotational method of organizing work, approved on December 31, 1987 N 794 / 33-82, which regulate issues that are not reflected in Chapter 47 of the Labor Code.

Taking into account the above provisions and norms, when establishing working hours and rest times when working on a rotational basis, it is necessary to be guided by the following:

The duration of daily work (shift) should not exceed 12 hours, as indicated by paragraph 4.2 of the Basic Provisions;

On the basis of part 5 of article 103 of the Labor Code, work for two shifts in a row is prohibited;

The duration of daily (inter-shift) rest, in accordance with clause 4.3 of the General Provisions, taking into account breaks for rest and meals, can be reduced to 12 hours;

The number of days off in the current month should not be less than the number of full weeks of this month, as established by part 1 of Article 111 of the Labor Code and paragraph 4.3 of the Basic Provisions, on the basis of which days off can be provided on average for each working week, and not necessarily during each calendar weeks;

Weekends can fall on any days of the week (clause 4.3 of the General Provisions);

The work schedule on the shift is brought to the attention of workers no later than two months in advance, which is directly stated in part 1 of Article 301 of the Labor Code. The work schedule on the shift is approved, as a rule, for a year.

During work on a shift, the length of the working day (shift) may change by the shift schedule. Schedules of work on a shift are used, providing for a decrease in the duration of the working day (shift) at the beginning and end of the week and an increase in it in the middle of the week.

In order to compensate for the existing processing, it is possible to reduce the duration of the working day (shift).

The work schedule on the shift can be common for employees of the entire organization, its individual divisions, and maybe individual.

Individual schedules can be used to take into account the specifics of work related to collateral:

Compliance with the rules governing the duration of the shift and the use of the summarized recording of working hours, in case of actual deviations from the general (normal) work schedule on the shift.

In case of part-time work in the accounting period or on a shift, the working hours according to the calendar, falling on the days of absence from work, are deducted from the norms established by the schedule, in accordance with clause 4.5 of the Basic Provisions.

In the absence of a trade union organization, the employer must take into account the opinion of another representative body of employees, or, in the absence of one, approve the work schedule on the shift independently.

"The time required for the delivery of workers to the shift and back", which is referred to in part 2 of Article 301 of the Labor Code, is determined in the schedule, taking into account the timetable of the corresponding modes of transport. The specified time is called "days on the way to the place of work and back", and in part 1 of Article 302 of the Labor Code - "days on the way from the location of the employer (collection point) to the place of work and back", part 5 of Article 302 of the Labor Code defines - "days spent on the way from the location of the organization (collection point) to the place of work and back."

The legal essence is the same. The most accurate is the wording of part 1 of Article 302 of the Labor Code. It is best used when developing and approving a regulation on a rotational method for a particular employer.

Despite the fact that the days on the way to the place of work and back are not included in working hours, on the basis of part 2 of Article 301 of the Labor Code, for these days the employee is paid a special allowance, as well as the daily wage rate (salary) in accordance with parts 1, 5 Article 302 of the Labor Code.

Inter-shift rest, taking into account parts 3 - 4 of Article 301 of the Labor Code, are additional days of rest provided in connection with work outside the normal working hours in the accounting period according to a special calculation. That is, an inter-shift vacation is a kind of vacation, provided not annually, but several times a year for the time worked in each period of the summarized accounting.

This type of rest is one of the features legal regulation labor with a rotational method, which exists, although not mentioned in article 107 of the Labor Code.

In contrast to clause 4.3 of the Basic Provisions on the rotational method of organizing work, part 3 of Article 301 of the Labor Code provides for the accumulation of hours of working hours, which are subsequently used to calculate the duration of an inter-shift rest.

Summing up, in accordance with part 3 of Article 301 of the Labor Code, is subject only to processing hours within the shift work schedule. Overworking in excess of the scheduled working hours is overtime work.

It is considered normal, on the basis of part 4 of Article 301 of the Labor Code, the duration of working hours provided for by the schedule of work on a shift within the reference period, and not by the general norms of the Labor Code (40-hour work week etc.), which must be observed by this schedule only on average for the reference period.

The number of extra days of rest (inter-shift rest) is determined by dividing the total number of overtime hours by 8 hours (normal working hours with a 5-day work week of 40 hours).

In the case of a shortened working week, the division is not made by 8 hours, but by the number of hours obtained by dividing the established duration of the shortened working week by five days.

If the remainder after such division turns out to be not a multiple of a whole day, then processing hours are accumulated during the calendar year up to whole working days. Additional days off between shifts are granted later.

Upon dismissal of an employee or the expiration of a calendar year, the specified hours are paid based on the tariff rate (salary), as defined in clause 5.4 of the Basic Provisions on the rotational method of organizing work.

Inter-shift rest must be provided taking into account part 2 of article 300 and paragraph 4.3 of the Basic Provisions, within the framework of the reference period and at the place of residence.

Clause 7.1 of the Basic Provisions obliges the employer to grant annual leave to rotational workers after they have used their inter-shift rest. Days between shifts are included in the length of service, which gives the right to annual basic and additional vacations, including work experience in harmful and (or) dangerous conditions labor.

In cases where the end of the employee's annual leave falls on the days of the inter-shift rest of the team in which he works, the employee, before the start of his shift shift, may be:

Due to operational needs, in order to prevent downtime caused by organizational reasons, he was transferred to another job according to the rules of Article 74 of the Labor Code;

Moved to another shift shift (another structural unit) in accordance with part 3 of Article 72 of the Labor Code.

As one of the options, by agreement of the parties, it can be provided.

For rotational workers who leave before the expiration of the accounting period, the date of dismissal (with their consent) may be indicated taking into account the due days of inter-shift rest. This allows you to make paragraph 4.3 of the Basic Provisions on the rotational method of organizing work.

If an employee has the right to simultaneously unused annual leaves at the same time, then he can receive them in kind with subsequent dismissal, on the basis of Article 127 of the Labor Code, after the end of the inter-shift rest. The date of dismissal will be the last day of the vacation.

The same rules apply to medical and pharmaceutical workers serving shift workers. The tariff rate (salary) for payment of days of inter-shift rest is taken without applying regional coefficients and allowances for work in the Far North and equivalent areas, which is consistent with clause 5.4 of the Basic Provisions on the rotational method of organizing work.

In clause 6 of the conditions and procedure for remuneration of medical and pharmaceutical workers serving workers and employees transferred to the rotational method of organizing work, it is provided that the days of rest between the said medical and pharmaceutical workers in connection with work in excess of the normal working hours during the reference period are paid from calculation of the official salary received by the day of the onset of this rest, and the length of the working day established by law.

Payment for inter-shift rest is made in the amount of the tariff rate (salary), unless otherwise established by an employment or collective agreement (part 4 of article 301 of the Labor Code).

Taking into account Articles 8 and 9 of the Labor Code, the parties to these agreements may agree to increase the specified amount. Its lowering will worsen the situation (lower the level of rights and guarantees) of workers in comparison with the Labor Code, therefore such a norm cannot be adopted.

The form of overtime work, which, in accordance with Article 99 of the Labor Code, is recognized as work performed by an employee on the initiative of the employer outside the established duration of working hours, daily work (shift), as well as work in excess of the normal number of working hours during the reference period, can be acquired by overworking in excess of the normal duration of the worker. time on watch.

Thus, with the rotational method, overtime will be considered work that has been completed:

Over the duration of the daily work (shift) provided for by the schedule;

Within the duration of daily work (shift) provided for by the schedule, but in excess maximum duration such work (shift) established by law (for example, over 12 hours);

In excess of the normal number of working hours for the reference period.

The reasons for overtime work vary. The most frequent is the non-arrival of shift personnel.

Involvement in overtime work is carried out according to different rules than recruitment to work within the framework of the shift work schedule.

Payment for days of inter-shift rest in the amount of the tariff rate (salary) provided for in part 4 of Article 301 of the Labor Code is made in the event that these days are provided in the form of compensation for overwork within the accounting period.

If during the watch period there was involvement in overtime work, then it must be compensated in accordance with the rules of Article 152 of the Labor Code (one and a half, double wages or in other forms).

Payment for days of rest between shifts provided in connection with work in excess of the normal working hours within the accounting period, as well as compensated upon dismissal, in accordance with Articles 139, 300 of the Labor Code, is taken into account in all cases of calculating average earnings.

In the event of a temporary disability during the period of inter-shift rest, the allowance for temporary disability is not issued. If it continues after the end of the specified period, then the benefit is paid from the day the employee must start work. The amount of the benefit is determined based on the number of working hours according to the schedule drawn up in accordance with the rules of Articles 300, 301 of the Labor Code, missed due to temporary disability.

For example, an employee, due to temporary disability, missed five ten-hour working days. The allowance should be paid for 50 hours of work (10 hours x 5 days), not 40 hours, as is the case with a normal work schedule with an eight-hour workday and a five-day 40-hour work week.

Taking into account clause 2 of the conditions and procedure for remuneration of medical and pharmaceutical workers serving workers and employees transferred to the rotational method of organizing work, the working time and rest time of these groups of workers in each case is determined taking into account the specifics of production, as well as in accordance with the norms, provided for rotational workers by Chapter 47 of the Labor Code and the Basic Provisions on the rotational method of organizing work.

Another commentary on Art. 301 of the Labor Code of the Russian Federation

1. The mode of work and rest, referred to in the title of Art. 301 of the Labor Code, is the mode of working hours and rest hours according to the terminology of Art. 100.

The peculiarities of such a regime with a rotational method (given the special nature of the work) are regulated not only by Art. 301, but also by subordinate normative legal acts in the manner established by the Government of the Russian Federation (part 2 of article 100 of the Labor Code of the Russian Federation).

At present, such a special act remains the Basic Provisions, which regulate a number of issues (see comment below) that are not reflected in Ch. 47.

2. The work schedule on the shift is the main local document regulating working hours and rest hours within the accounting period. Therefore, when approving it, the legislator requires taking into account the opinion of the employee's representative - the body of the primary trade union organization in the manner prescribed by Art. 372 for the adoption of local regulations.

Change in Part 1 of Art. 301 of the Labor Code of the Russian Federation eliminated the previously existing inconsistency between Art. Art. 301, 297 and 372, with one exception: in the last two articles it comes on the elected body, and in Art. 301 of the Labor Code of the Russian Federation - just about the body. I believe there is a mistake in the legislative technique and it is necessary to proceed from Art. Art. 297 and 372 of the Labor Code, taking into account the opinion of the elected body of the primary trade union organization.

In the absence of such a body, the employer has the right to approve the work schedule on the shift independently.

3. The question of work schedules on a shift (especially if they are already established) can be solved not by a special separate document, but in the regulation on the shift method - a local normative act (see the commentary to part 3 of article 297 of the Labor Code of the Russian Federation).

4. Taking into account Art. Art. Ch. 300 and 301 47, the general norms of the Labor Code of the Russian Federation (concentrated mainly in Sections IV and V) and the corresponding norms of the Basic Provisions when establishing working hours and rest time when working on a rotational basis, it is necessary to be guided, in particular, by the following:

The total duration of working hours for the accounting period, provided for by the work schedule on the shift, should not exceed the normal number of working hours established by the Labor Code of the Russian Federation (for their calculation, see Art. 300 of the Labor Code of the Russian Federation);

The duration of daily work (shift) should not exceed 12 hours (clause 4.2 of the General Provisions);

Work for two shifts in a row is prohibited (part 5 of article 103 of the Labor Code of the Russian Federation);

The duration of daily (inter-shift) rest, taking into account breaks for rest and meals, can be reduced to 12 hours (clause 4.3 of the Basic Provisions); for inter-shift rest see also Art. 299 TC;

The number of days off in the current month must be at least the number of full weeks of this month (part 1 of article 111 and paragraph 4.3 of the Basic Provisions), on the basis of which days off should be provided only on average for each working week, and not necessarily during every calendar week;

Weekends can fall on any days of the week (clause 4.3 of the General Provisions).

5. If the shift schedules are brought to the attention of workers no later than one month before they are put into effect (part 4 of article 103 of the Labor Code of the Russian Federation), then the work schedule on the shift is no later than two months, which is directly stated in . 1 tbsp. 301 of the Labor Code of the Russian Federation.

6. In accordance with clause 4.2 of the Basic Provisions, the work schedule on a shift is approved, as a rule, for a year, regardless of the length of the period of the summarized recording of working hours.

7. During work on a shift, the duration of the working day (shift) may change according to the schedule, for example, decrease by 2 - 3 hours in the initial period to relieve fatigue caused by the flight (relocation), or to shorten the time for the transition to intensive, highly productive work in new natural and climatic conditions. conditions.

In practice, shift work schedules are also used, which provide for a decrease in the duration of the working day (shift) at the beginning and end of the week and an increase in it in the middle of the week.

Reducing the length of the working day (shift) is also possible in order to compensate for the existing processing.

8. Schedules of work on a shift can be either general for employees of the entire organization, its individual divisions, or individual.

The latter (individual), for example, are used in practice to take into account the specifics of work related to collateral:

Continuity of the leading engineering and technical and management personnel by reflecting in the schedule the appropriate time for acceptance and transfer of the scope of work and cases by the heads of structural divisions and foremen (foremen);

Preservation of material assets by allocating a time reserve in the schedule for the transfer of valuables;

Transmission of relevant Vehicle, devices, mechanisms and units by combining schedules (usually daily) for machine operators and drivers of various shift shifts;

Compliance with the rules governing the duration of the shift and the use of summarized recording of working hours, in case of actual deviations from the general (normal) work schedule on the shift, for example, when an employee becomes ill and is taken out for treatment before the end of the shift or overtime work compensated by additional days of rest in accordance with Art. ... 152 of the Labor Code of the Russian Federation.

9. In case of part-time work in the accounting period or on a shift (due to illness, vacation, involvement in the execution of state or public duties etc.) from the norms established by the schedule, working hours according to the calendar falling on the days of absence from work (clause 4.5 of the Basic Provisions) are subtracted.

10. Specific shift work schedules still used in practice in construction, oil and gas industry, in geology, can be found in the book: Krivoy V.I. Shift method: legal issues. M., 1989.

11. The beginning of the wording of Part 2 of Art. 301 of the Labor Code of the Russian Federation ("the specified schedule provides for the time") is unsuccessful, because it creates the impression that only this time should be indicated in the schedule of work on watch. Meanwhile, the schedule contains a significant number of other characteristics of working time and rest time: shift length, weekly rest, etc. (see comment above).

12. "The time required for the delivery of workers to the shift and back", which is referred to in the first sentence of Part 2 of Art. 301 TC, is determined in the work schedule on the watch, taking into account the timetable of the corresponding types of transport.

The specified time is named in the second sentence of Part 2 of Art. 301 of the Labor Code of the Russian Federation "on the way to the place of work and back", in part 1 of Art. 302 of the Labor Code of the Russian Federation - "the days spent on the way from the location of the employer (collection point) to the place of work and back", and in part 8 of Art. 302 - "every day on the way from the location of the employer (collection point) to the place of work and back." Such "discord" requires the introduction of appropriate amendments to the listed norms.

The legal essence of these formulations is the same, but the most accurate is the wording contained in Part 1 of Art. 302 of the Labor Code of the Russian Federation. It should be used in local rule-making, for example, when developing and approving a regulation on the rotational method for a particular employer.

13. Although the days on the way to the place of work and back are not included in working hours (the second sentence of part 2 of article 301 of the Labor Code of the Russian Federation), for these days the shift worker is paid a special allowance for work on a rotational basis and the daily wage rate, part of the salary (official salary) per day of work (daily rate) in accordance with hours 1 and 8 of Art. 302 (see commentary to it).

14. New editions of parts 3 and 4 of Art. 301 of the Labor Code of the Russian Federation for the first time legalized the category "shift rest" at the level of the Labor Code of the Russian Federation. In accordance with them, an inter-shift rest is additional days of rest (in practice, they are often called rest days) for overworking working time within the schedule of work on a shift, provided within the framework of the accounting period by a special calculation.

In other words, inter-shift rest is a kind of vacation, provided, as a rule, not annually, but several times a year (depending on the number of accounting periods in it) for overworked working hours according to the shift work schedule in each period of the summarized accounting. The specificity of this leave is also in its payment - not according to the average earnings as established for regular vacations, but in the amount of the daily wage rate, the daily rate (part of the salary (official salary) per day of work).

This type of rest is one of the features of the legal regulation of labor in the case of a rotational method, which has the right to life, despite the fact that it (inter-shift rest) is not mentioned in Art. 107 of the Labor Code of the Russian Federation.

15. Unlike clause 4.3 of the Basic Provisions in Part 3 of Art. 301 of the Labor Code of the Russian Federation provides for the summation of not underutilized rest time on a watch (daily or between shifts, as well as weekly), but hours of working time processing, which are subsequently used to calculate the duration of an inter-shift rest.

16. In accordance with Part 3 of Art. 301 of the Labor Code of the Russian Federation, only overworking hours within the hours of work on shift are subject to compensation for days of inter-shift rest.

If overtime has occurred in excess of the working time provided for by this schedule, then it will be considered overtime work.

17. The number of additional days of rest (inter-shift rest) is determined by dividing the total number of working hours by 8 hours (normal working hours with a five-day working week of 40 hours).

In the case of a shortened working week (less than 40 hours), the division is not made by 8 hours, but by the number of hours obtained by dividing the established duration of the shortened working week by 5 days.

For example, with the same number of overtime hours (suppose 81 hours), a shift worker with a 40-hour work week should be given 10 full additional days of inter-shift rest (81 hours: 8 hours), and with a 36-hour week - 11 days at the rate of 81 hours: (36 hours: 5 days).

This calculation, in principle, coincides with the calculation regulated in par. 1 p. 5.4 of the General Provisions, with the exception of dividing by 7 o'clock under the general rule. The latter (instead of it must be divided by 8 hours) does not correspond to that provided for in Art. 91 of the Labor Code of the Russian Federation of the normal working week of 40 hours (and the corresponding normal working day or shift at 8 hours) and was declared illegal (invalid) and invalid by the decision of the Supreme Court of the Russian Federation of July 4, 2003 N GKPI2002-398.

18. If this division results in a remainder (in our examples 1 hour and 1.8 hours), then these processing hours, which are not multiples of whole working days (normal at 8 hours or reduced), should not be discarded, but accumulate during the calendar year up to whole working days with the subsequent provision of additional days of inter-shift rest.

In case of dismissal of an employee or the expiration of a calendar year, the specified hours are paid based on the daily wage rate, daily rate (part of the salary (official salary) per day of work).

This approach is provided for in clause 5.4 of the Basic Provisions, which should be applied taking into account the changes in Part 4 of Art. 301 of the Labor Code of the Russian Federation.

19. Based on Part 2 of Art. 300 of the Labor Code of the Russian Federation and clause 4.3 of the Basic Provisions, inter-shift rest should be provided, firstly, within the framework of the reference period, and secondly, not in rotational camps, but at the place of residence.

20. In clause 7.1 of the Basic Provisions, it is stipulated that annual leave should be granted to rotational workers after they have used their inter-shift rest.

If the end of the employee's annual leave falls on the days of inter-shift rest of the team in which he works, then the employee, before the start of his shift shift, in accordance with clause 7.1 of the Basic Provisions, may be:

Transferred due to production needs in order to prevent downtime caused by organizational reasons, to another job according to the rules of Art. 72.2 TC;

Moved to another shift shift (another structural unit) in accordance with Part 3 of Art. 72.1 of the Labor Code of the Russian Federation.

By agreement between this employee and the employer, unpaid leave may also be granted. wages.

21. Days of inter-shift rest are included in the length of service, giving the right to annual basic and additional leaves, including leave for work in harmful and (or) dangerous working conditions (clause 7.1 of the Basic Provisions).

22. For shift workers who leave before the expiration of the accounting period, the date of dismissal (with their consent) may be indicated taking into account the days of rest between the rotations (clause 4.3 of the Basic Provisions).

If the employee also has the right to unused annual leave at the same time, then he can receive them in kind with subsequent dismissal (see Art. 127 of the Labor Code of the Russian Federation) after the end of the shift rest. In this case, the date of dismissal will be the last day of the vacation.

23. The daily wage rate, the daily rate (part of the salary (official salary)) for payment of days of inter-shift rest is taken without applying regional coefficients and allowances for work in the Far North and equivalent areas (clause 5.4 of the Basic Provisions).

24. Part 3 of Art. 301 of the Labor Code of the Russian Federation, it is regulated that payment for inter-shift rest is made in the amount of the daily wage rate, the daily rate (part of the salary (official salary)) per day of work, unless a higher pay is established by a collective agreement, local regulation or employment contract.

Such a higher pay may, for example, translate into payment for days of inter-shift rest, based on average earnings.

Lowering the same amount of payment in comparison with that provided for in Part 3 of Art. 301 is unacceptable (even if the employee agrees with this or such a condition is included in the collective agreement), because it will worsen the situation (reduce the level of rights and guarantees) of employees in comparison with the Labor Code of the Russian Federation and should not be applied (see part 4 of Art. 8 and part 2 of article 9).

25. In accordance with sub. "g" clause 4 of the Regulation on the specifics of the procedure for calculating the average wage, approved by the Decree of the Government of the Russian Federation of April 11, 2003 N 213, when calculating the average earnings, the time is excluded from the calculation period, as well as the amounts accrued during this time if the employee was given days rest (time off) in connection with work in excess of the normal duration of working hours with a rotational method. In other words, according to the terminology of Art. 301, the time (days) of inter-shift rest and payment for it in the amount of the daily wage rate, the daily rate (part of the salary (official salary) per day of work) are subject to exclusion.

26. Overworking in excess of the normal duration of working hours on a watch may take the form of overtime work, which, in accordance with Part 1 of Art. 99 recognizes the work performed by the employee on the initiative of the employer outside the working hours established for the employee: daily work (shift), and in the case of summarized recording of working hours - in excess of the normal number of working hours for the accounting period.

For all the bad luck new edition h. 1 tbsp. 99, taking into account the general meaning of sections IV and V of the Labor Code of the Russian Federation on working hours and rest time, as well as the doctrine of science labor law, with the summarized accounting of working time used in the conditions of the rotational method, overtime will be the work that is performed:

In excess of the duration of daily work (shift) provided for by the work schedule on the watch;

Within the limits of the duration of daily work (shift) stipulated by the work schedule on the shift, but in excess of the maximum duration of such work (shift) established by law (for example, over 12 hours - see above paragraph 4 of the commentary to this article);

In excess of the normal number of working hours for the accounting period (for the procedure for calculating it, see the commentary to Article 300 of the Labor Code of the Russian Federation).

27. The reasons for the need for overtime can be very different. With the rotational method, the most common of them is the non-arrival of shift personnel.

28. Involvement in overtime work is carried out according to other rules (obtaining the written consent of the employee, etc. - see Art. 99 of the Labor Code of the Russian Federation) than recruiting to work within the shift work schedule.

29. Payment for days of inter-shift rest in the amount of the tariff rate (salary), provided for in parts 3 and 4 of Art. 301 TC, is made only if these days are provided in the form of compensation for overworking within the accounting period in accordance with the shift work schedule drawn up in accordance with the law.

If during the watch period there was involvement in overtime work, then it must be compensated according to the rules of Art. 152 (one and a half and double payment and in other forms).

30. In the event of a temporary incapacity for work during the inter-shift rest period, benefits for temporary incapacity for work shall not be issued.

If it continues after the end of the specified period, then the allowance is issued from the day from which the employee was supposed to start work. In this case, the amount of the allowance is determined based on the number of working hours according to the shift work schedule (drawn up in accordance with the rules provided for in Articles 300 and 301 of the Labor Code of the Russian Federation), missed due to temporary disability (see clause 7.5 of the Basic Provisions).

For example, if an employee missed three 10-hour working days due to temporary disability, then the benefit should be paid to him for 30 working hours (10 hours x 3 days), and not for 24 hours, as would be the case with the usual work schedule from 8 - an hour working day and a five-day 40-hour work week.

31. On the basis of clause 2 of the Conditions and procedure for remuneration of medical and pharmaceutical workers serving workers and employees transferred to the rotational method of organizing work, approved by the Decree of the State Committee of Labor of the USSR and the All-Union Central Council of Trade Unions of November 6, 1986 N 470 / 26-88a, working regime the time and time of rest of these medical and pharmaceutical workers in each specific case is determined taking into account the specifics of production and in accordance with the norms provided for shift workers, i.e. ch. 47 of the Labor Code of the Russian Federation and the Basic Provisions.

In clause 6 of the same regulatory legal act, it is provided that the days of inter-shift rest in connection with work in excess of the normal working hours in the accounting period are paid based on the official salary received by the day of the onset of this rest, and the duration of the working day established by law.

Thinks like a lawyer, only faster.

The days of rest between shifts are the accumulated days off, this is compensation for overwork. The days of illness do not interrupt the days of the shift between shifts. That is, during the period of illness, the rest is not extended.

The fact that the employee was given another vacation, contrary to the shift schedule, does not cancel the 4th shift schedule. This is a violation, but it does not constitute a basis for canceling the watch. At the same time, if the days of inter-shift rest coincide with the days of vacation, this will lead to the fact that there will be no compensation for overtime and the number of hours worked by the employee during the accounting period will exceed the established norm. In this case, although this is not directly stated in the law, the vacation should be extended by the number of coinciding days. That is, in the situation under consideration, the vacation should be considered granted from 20.11. If the vacation is over, but the watch is not, then the rest of the days of his absence are days of absence.

Justification of this position in the materials of "System Yurist"

“Inter-shift rest are days of rest arising in connection with the processing of working time within the work schedule on the shift (part 3 of article 301 of the Labor Code of the Russian Federation). Rest time is the time when the employee is free from performing job responsibilities(Article 106 of the Labor Code of the Russian Federation).

A question from practice: whether the employee needs to pay sick leave. The disease occurred during an inter-shift rest

Yes need.

In the case of a rotational method of work, a summarized accounting of working time is established for a month, quarter or other longer period, but not more than one year. The accounting period covers all working hours, travel time from the employer's location or from the collection point to the place of work and back, as well as the rest time falling on a given calendar period of time (Article 300 of the Labor Code of the Russian Federation).

Temporary disability benefit is paid for a period of incapacity for work, the duration of which is calculated in calendar days... All days are subject to payment, regardless of the operating hours of the organization. At the same time, employees have the right to receive benefits for temporary disability not only in connection with illness (injury), but also, if necessary, to take care of a sick family member. This conclusion follows from Articles 5, 6 of the Law of December 29, 2006 No. 255-FZ.

Temporary disability benefit is paid for all calendar days falling on the corresponding period of temporary disability, with the exception of the calendar days specified in part 1 of article 9 of the Law of December 29, 2006 No. 255-FZ (part 8 of article 6 of the Law of December 29 2006 No. 255-FZ). Days of rest between shifts are not indicated in the number of periods for which temporary disability benefits are not awarded.

Thus, in the case of a rotational method of organizing work in the event of a temporary incapacity for work of an employee or a member of his family, all days missed due to illness, including days of inter-shift rest, are payable.

A similar point of view is reflected in the letter of the FSS of Russia dated January 26, 2012 No. 15-03-11 / 12-782.

How to provide vacations to shift workers

Annual vacation provide employees working on a rotational basis after using the days of inter-shift rest (clause 7.1 of the Basic Provisions approved by the decree of the State Committee for Labor of the USSR, the Secretariat of the All-Union Central Council of Trade Unions, the Ministry of Health of the USSR dated December 31, 1987, No. 794 / 33-82).

As a general rule, leave for rotational workers to provide a generally established duration - at least 28 calendar days (Article 115 of the Labor Code of the Russian Federation). In addition, to shift workers working in the Far North or equivalent areas, provide additional paid leave of 24 or 16 calendar days, respectively (part 5 of article 302 of the Labor Code of the Russian Federation).

Also, shift workers (both working in "privileged" areas or not) can be set for a longer duration of paid vacations, as well as other (additional) grounds for their provision in collective agreements or other local acts of the employer (part 2 of article 116 Labor Code of the Russian Federation).

A question from practice: can the organization provide an employee with leave from the middle of the working shift

Yes maybe.

The legislation does not contain a prohibition on the granting of leave from the middle of a working shift. Employees working on a rotational basis are granted annual paid leave in the same manner as other employees - according to the vacation schedule or as agreed with the employer. Thus, the beginning of the vacation can be in the middle of the shift.

A question from practice: what the employer should do if the end of the employee's annual leave falls on the days of the shift

If the end of the employee's annual leave falls on the days of between shifts, then the employer can:

provide the employee with other work in the organization before the start of the shift;
transfer an employee to another shift shift;
by agreement with the employee, grant him unpaid leave.

Such options are provided for in paragraph 3 of clause 7.1 of the Basic Provisions approved by the resolution of the USSR State Committee of Labor, the Secretariat of the All-Union Central Council of Trade Unions, the USSR Ministry of Health No. 794 / 33-82 dated December 31, 1987, and do not contradict the norms Labor Code RF.

A question from practice: what to do if the end of the annual leave of the shift worker falls in the middle of the shift

If the end of the vacation of an employee working on a rotational basis falls in the middle of the shift, then the employer must provide him with work from the middle of the shift.

If the employer is unable to send the employee to the place of performance of his work (shift), then, with his consent, he can:

before the start of the shift, provide the employee with other work in the organization (i.e., arrange a temporary transfer);
provide unpaid leave until the end of the shift (Article 128 of the Labor Code of the Russian Federation). ”.

Professional reference system for lawyers, in which you will find the answer to any, even the most difficult question.

E.A. Shapoval, lawyer, Ph.D. n.

We solve rotational problems

The rotational method is a special mode of work. Therefore, even standard situations in this mode raise questions.

Is it possible to work overtime on a watch

Z.M. Bunchuk, Ryazan

Is it possible to involve workers in overtime work during the shift period and is it necessary to take into account overtime when calculating the duration of the shift between shifts?

: When working during the shift Articles 103, 304 of the Labor Code of the Russian Federation; nn. 4.2, 4.3, 5.5 Basic provisions, approved. Resolution of the USSR State Committee for Labor, the Secretariat of the All-Union Central Council of Trade Unions, the USSR Ministry of Health dated December 31, 1987 No. 794 / 33-82 (hereinafter referred to as the Basic Provisions):

daily work (shift) should not exceed 12 hours;
work for two shifts in a row is prohibited;
daily (inter-shift) rest, taking into account the break for rest and meals, can be reduced to 12 hours;
a full week must have at least one day off.

Rotational period (rotational cycle) includes Art. 299 of the Labor Code of the Russian Federation:

shift period (working days and days off according to the work schedule at the facility);
rest period until the next shift (inter-shift rest, weekends and non-working holidays, including days on the way to the place of work and back).

That is, during the shift period, processing is envisaged, since shift workers work, as a rule, 10-12 hours a day, 6 days a week, while the norm is 40 hours a week. For this processing, shift workers after the shift period are provided with an inter-shift rest x Articles 91, 301 of the Labor Code of the Russian Federation; Determination of the Constitutional Court dated 09.29.2015 No. 1883-О.

Involvement of shift workers for overtime work is allowed in case of non-arrival of shift personnel a clause 5.5 of the Basic Provisions.

However, the work of shift workers can be overtime not only in this case. For example, if shift workers, on the basis of the order of the employer, were involved in work e Determination of the Armed Forces of the Komi Republic dated May 21, 2012 No. 33-1573AP / 2012.:

<или>in excess of the working time established by the work schedule during the shift period (for example, this is work in excess of 10 hours, if the shift according to the schedule is 10 hours);
<или>in excess of 12 hours, that is, in excess of the maximum duration of the working day (shift) established by law, if there is no work schedule during the shift period.

Such hours worked overtime on the shift should not be taken into account when determining the duration of the rest between the rotations. After all, they are compensated not as overwork during the shift period, but as overtime work.

The employee can choose the method of compensation:

<или>payment in an increased amount based on the results of the accounting period (since with the rotational method, the summarized accounting of working hours is used and Art. 300 of the Labor Code of the Russian Federation);
<или>additional rest of the same duration as overtime work a Art. 152 of the Labor Code of the Russian Federation.

How to calculate and provide an inter-shift rest

L.A. Bobrovskaya, Moscow

How to correctly calculate the number of days of inter-shift rest, if the shift workers worked during the shift period from January 4 to 23, 2016 for 18 days for 10 hours? The normal working week for them is 40 hours. How to provide days of inter-shift rest to a shift worker: in calendar days or in working days, that is, excluding weekends and non-working holidays?

: Inter-shift rest are additional days of rest provided to shift workers for overworking on working days on a shift (as a rule, they work more than 8 hours a day, 6 days a week) Art. 301 of the Labor Code of the Russian Federation.

We calculate the number of days between the shift rest as follows Art. 301 of the Labor Code of the Russian Federation:

* Remaining hours, not multiples of a whole working day, are summed up during the calendar year up to a whole working day (days) and are subsequently added to the days of the next shift between shifts. Art. 301 of the Labor Code of the Russian Federation.

In your case, employees are entitled to 12 full days of inter-shift rest ((18 days x 10 hours - 80 hours (working hours from 4 to 23 January 2016 to production calendar)) / 8 h).

Days of rest between shifts are provided in a row in working days according to the calendar of a five-day working week, that is, they should not coincide with regular days off (Saturday and Sunday) and non-working days. holidays and Art. 112 of the Labor Code of the Russian Federation.

How to pay for work on a shift on a holiday

R.A. Katorova, Smolensk

For an employee who has a salary, the working day on the shift coincides with a non-working holiday. How to pay for such a day: as a normal working day on a shift or as work on a holiday?

: Work on a public holiday is always paid at least double the size of e Art. 153 of the Labor Code of the Russian Federation... Scheduled work on a shift on a non-working holiday is included in the standard working time, since for shift workers, the summarized accounting of working hours is applied and articles 153, 300 of the Labor Code of the Russian Federation; p. 1 of the Clarification of the State Committee for Labor of the USSR dated 08.08.66 No. 13 / P-21; Decision of the Supreme Court of 08.02.2006 No. ГКПИ05-1644; sect. 5 Recommendations of Rostrud, approved by Protocol No. 1 dated 02.06.2014... Consequently, it is paid in the amount of at least one day's salary in addition to the salary.

How to reflect the work of shift workers in the report card

M.A. Solnyshkina, Krasnoyarsk

Employees of our organization work on a rotational basis. We use a unified time sheet. How to reflect in the report card work during the shift, inter-shift rest and days on the way to and from the shift?

: For reflection in the report card (as a basis, you can take the unified form No. T-12 or T-13 Resolution of the State Statistics Committee of 01/05/2004 No. 1) the duration of the hours worked on working days according to the schedule during the shift period, you can use the standard alphabetic code "ВМ" or the digital "05" indicating the duration of the hours worked in the column under the code. To take into account these days of working time in conditions deviating from normal, enter additional lines and use to reflect:

work at night - letter code "H" or digital "02";
overtime work - letter code "C" or digital "04";
work on weekends - alphabetic code "РВ" or digital "03".

In the additional line under the code, indicate the length of time worked in such conditions.

For designation of days off both during the shift period and in the period between shift rests, the standard letter code "B" or the numeric "26" can be used. But for the convenience of calculating payments for days of inter-shift rest, by order, you can enter additional designations for these days, for example, the letter code "MO". And the days on the way to the place of watch and back, for which there is also no standard designation, can be reflected, for example, with the additional code "ДП".

Is it necessary to pay for the days between the shift rest, not used due to dismissal

M.I. Volkova, Moscow

The employee filed a letter of resignation on on their own... On the day of his dismissal, he did not use 10 days of inter-shift rest. Are we obliged to pay the employee for the days of non-use due to dismissal between shifts?

: Yes, we do. After all, such days were earned by an employee during the shift period before dismissal. h. 3, 4 art. 301 of the Labor Code of the Russian Federation; Definitions of the Armed Forces of the Komi Republic dated May 21, 2012 No. 33-1573AP / 2012. ; KS dated 12.07.2006 No. 261-О... This is also confirmed by the fact that upon dismissal, the employer is obliged to pay overworking hours that are not multiple for whole working days, which accumulate during the calendar year up to whole working days. p. 5.4 of the Basic Provisions; Determination of the St. Petersburg City Court dated 17.09.2013 No. 33-12614 / 2013.

Is it necessary to provide an employee with an inter-shift rest that was not used due to study leave

A.Yu. Bastanyan, Moscow

The employee presented a call-out certificate for the session. Part of the study leave falls on the days of between shifts. Is it necessary for an employee to provide days of inter-shift rest unused due to study leave?

: Yes need. After all study leave provided for the period specified in the certificate-call e approved By order of the Ministry of Education and Science of December 19, 2013 No. 1368, regardless of whether the days included in this period are workdays or weekends and Art. 107 of the Labor Code of the Russian Federation... At the same time, study leave is not a time of rest, which means that the employee did not use his right to an inter-shift rest. Art. 107 of the Labor Code of the Russian Federation.

Is it possible to provide an employee with a vacation during an inter-shift rest

O.I. Babaeva, Yekaterinburg

According to the vacation schedule, the start date of the employee's vacation falls on the last day of the inter-shift rest. Is it possible to provide the shift worker with a vacation from the date specified in the vacation schedule, or does the vacation need to be rescheduled?

We have already written about changing the planned date in the vacation schedule:

: The annual leave of the shift worker can be granted only after the use of the days of inter-shift rest. p. 7.1. Main provisions; Decision of the Supreme Court of 09.02.2011 No. ГКПИ10-1462... Therefore, the start date of the vacation must be rescheduled. To do this, make changes to the vacation schedule. This can be done at the request of the employee after the approval of the work schedule on the shift, which is brought to the attention of the workers no later than 2 months before it is put into effect. Art. 301 of the Labor Code of the Russian Federation.

What to do if part of the employee's vacation falls on the period of between shifts

A.I. Ilnitskaya, Rostov

Employees of the organization work on a rotational basis. The vacation of one of the workers ended at a time when his shift shift had a period of rest between shifts. Unused days he has no inter-shift rest. What should we do in such a situation?

: In such a situation, the employee has a simple one. By agreement with the employee, you can Art. 72.2 of the Labor Code of the Russian Federation; clause 7.1 of the Basic Provisions:

<или>transfer him to another job before the start of the next shift;
<или>transfer him to another shift shift;
<или>grant him unpaid leave.

If the employee does not agree, then the time until the next shift he needs to be paid in the amount of at least 2/3 of the average wage as a downtime due to the fault of the employer. Art. 157 of the Labor Code of the Russian Federation.

Is it possible to establish part-time working hours for a shift worker on parental leave

I.I. Smirnova, St. Petersburg

The shift worker is on leave to care for a child under the age of 3, as he is raising him alone (without a mother). After the child was 2 years old, he applied for a part-time job. How can we satisfy the employee's application if the shift lasts 3 weeks and the shift workers work in another region?

: It is forbidden to involve women with children under the age of 3 in work performed on a rotational basis. Art. 298 of the Labor Code of the Russian Federation... This prohibition also applies to fathers of children under 3 years of age raising children without mothers and Art. 264 of the Labor Code of the Russian Federation.

Therefore, you cannot allow such an employee to work on the watch. But with the consent of the employee, you can transfer him for up to 1 year to another job on a part-time basis and Art. 72.2. Labor Code of the Russian Federation.

Is it possible to prescribe in an employment contract a condition on a rotational work method after the conclusion of an employment contract

L.N. Popova, Tver

With the employee was concluded labor contract, in which there was no provision for a rotational method of work. Six months later, it became necessary to involve him in work on the watch. Can we include such a condition in the employment contract?

: If the employee agrees to such a change in the employment contract, then you need to conclude with him additional agreement to the employment contract with Art. 72.1 of the Labor Code of the Russian Federation.

At the initiative of the employer, such a condition can be included in the employment contract only if you have changed organizational or technological conditions labor (for example, structural reorganization of production). If the employee agrees to your proposal, then the condition on the rotational work method will begin to operate 2 months after you notify him of this Art. 74 of the Labor Code of the Russian Federation... If he does not agree, then 2 months after notification, he can be dismissed due to refusal to continue work, provided that you do not have a vacant position to which he agrees to transfer and Clause 7, Part 1, Art. 77 of the Labor Code of the Russian Federation... If the employee subsequently challenges the transfer or dismissal, then in the absence of evidence confirming that the change in the terms of the employment contract was the result of changes in the organizational or technological working conditions, the court may recognize them as illegal and Appeal ruling of the Armed Forces of the Republic of Sakha dated 19.09.2012 No. 33-3171 / 2012.

Is it possible to fire a pregnant worker if there is no non-shift work

Z.M. Chikanova, Moscow

An employee has a fixed-term employment contract for a year to perform work on a rotational basis. After 6 months, she submitted a pregnancy certificate and a medical opinion on the provision of another job. There is no work that can be provided to her in the Moscow office. Can we fire her?

: If you do not have a job to which the employee can be transferred, then you need to release her from work before the start of maternity leave with the payment of average earnings from the previous job for all working days falling on this time Art. 254 of the Labor Code of the Russian Federation... Then, on the basis of a certificate of incapacity for work and an employee's statement, you will need to provide her with such a leave to Art. 255 of the Labor Code of the Russian Federation... And you can dismiss an employee only after the end of maternity leave. Art. 261 of the Labor Code of the Russian Federation.

How to pay for sick leave, which falls on the period of between shifts rest

A.M. Bakhteeva, Izhevsk

The shift worker fell ill during the inter-shift rest. Are we obliged to pay him sick leave for the days of incapacity for work falling on the days of inter-shift rest, and is it necessary to give the employee then the days of the inter-shift rest unused due to illness?

: Yes, you must pay the employee sick leave for the entire period of illness and h. 8 art. 6 of the Law of December 29, 2006 No. 255-FZ; FSS letter dated 26.01.2012 No. 15-03-11 / 12-782... Unused days between shifts due to illness must be given to the employee later. After all, due to illness, he could not rest.

What to do if the employee is late for the start of the shift

M.I. Mishulina, Vologda

Worker on good reason did not go to the place of work by the start of the shift. Can he himself get to the place of the shift after it has started?

: Yes maybe. At the same time, you are obliged to reimburse him the transportation costs for the journey from the place of gathering to the place of watch according to the standards for commanders to

What is an inter-shift vacation and why it is worth paying for it.

First, a little theory:

Art. 91 of the Labor Code of the Russian Federation. Working time concept. Normal working hours

Working time is the time during which an employee ... must perform work duties ...

Normal working hours cannot exceed 40 hours per week.

Art. 104 TRK RF. Summarized accounting of working time

When, according to the conditions of production (work) ... the established ... daily or weekly working time cannot be observed, it is allowed to introduce a summarized accounting of working hours so that the working time for the accounting period (month, quarter and other periods) does not exceed the normal number of workers hours…

Art. 301 Labor Code of the Russian Federation Modes of work and rest when working on a rotational basis

Working hours and rest time within the accounting period are regulated by the work schedule on the watch ... (part 1).

Each day of rest in connection with the processing of working hours within the work schedule on the shift (day of inter-shift rest) is paid in the amount of the daily wage rate, the daily rate (part of the salary (official salary) per day of work) ... (part 3).

p. 4.3. The main provisions on the rotational method of organizing work, approved. Decree of the USSR State Committee for Labor, the Secretariat of the All-Union Central Council of Trade Unions, the USSR Ministry of Health dated December 31, 1987 No. 794 / 33-82

The duration of the daily (inter-shift) rest of employees, taking into account lunch breaks, can be reduced to 12 hours. In this case, the underutilized hours of daily (inter-shift) rest, as well as the days of weekly rest, are summed up and provided in the form of additional days off from work (days of inter-shift rest) during the accounting period. The number of days of weekly rest in the current month must be at least the number of full weeks of this month. Weekly rest days can be any day of the week.

5.4. The main provisions on the rotational method of organizing work

Days of rest (time off) in connection with work in excess of the normal working time in the accounting period within the work schedule on the shift are paid in the amount of the tariff rate, salary (...) received by employees on the day of rest (time off), based on seven-hour working day.

The managers of enterprises are allowed, within the limits of the wage fund established by the standards, to pay, in the above amounts, the days of rest (time off) in excess of the normal duration of working hours on the shift.

The essence of the problem:

With the introduction of the summarized accounting of working hours when working on a rotational basis, the duration of the daily (and weekly) working hours will differ from the normal working hours (40 hours per week).

When working within the work schedule on a shift, overworking of working time cannot occur, since the working time is determined by the schedule itself. Therefore, there cannot be “ working time processing» « within schedule", About which part 3 of Art. 301 TRK RF. May be " processing beyond normal duration working time» « within schedule"Or" processing of working hours» « in excess of graphic arts". The edition of clause 5.4 speaks in favor of the first option. The main provisions on the rotational method of organizing work (the origin and meaning of the dispositive norm of paragraph 2 of this paragraph, in the presence of a similar imperative requirement of paragraph 1, remains vague).

Nonsense " processing of working hours within the schedule"Turns into days of rest -" day of rest between shifts". Moreover, in p. 4.3. Fundamentals ... a completely different definition is given “ days between shifts" how " additional days off from work during the accounting period, provided for the underutilized hours of the daily (inter-shift) and weekly rest days».

rest days due to the processing of working hours within the schedule”, Then there can be no such days.

If we consider the requirement of Part 3 of Art. 301 of the Labor Code of the Russian Federation as a request for payment " days between shifts", Determined in accordance with clause 4.3. Of the main provisions ..., and identical to the requirements of clause 5.4. Of the main provisions ... then this with a watch, for example, "30 days after 30 from the 15th of the next month" with an accounting period of 1 calendar year leads to the following problems:

one). Double payment for the same hours is made: first, the employee receives payment for the hours worked, and then - for the days of rest between shifts, formed from the hours worked.

2). At the end of the accounting period, with the summarized accounting of working time, the employee has days of inter-shift rest, which he has not yet received (physically and payment). The employer is obliged to pay compensation for the indicated days (based on the meaning of Article 104 of the Labor Code of the Russian Federation).

3). At the beginning of the accounting period, with the summarized accounting of working hours, when the employee of the second half of the shift has not yet left for the shift, he has unpaid days forced downtime, with the obligation of their respective payment by the employer. Consequently, for the indicated days, double payment is made (taking into account the compensation under item 2).

4). If the shift is transferred from one accounting period to another, then for the first part of the shift, when the days of inter-shift rest are not provided, compensation must be paid (see clause 2), and for the second part of the shift he will not work on the days of rest and the employer is obliged pay for the forced downtime.

five). In each shift period, the employee has 1..4 days of rest, which he did not earn, but is not involved in work, since another shift works according to the schedule. Payment for these days as days of inter-shift rest cannot be made (because they have not been earned), therefore, they should be considered as forced downtime with appropriate payment.

Example: During 30 days of a watch of 11 hours, 330 hours were worked. Overworking in excess of the normal length of time is (330-22 * 8 =) 154 hours or 19.25 days of rest. The days of rest between shifts will end on the 10th (11th or 12th - as the weekend comes) of the next month. On the 11th, 12th, 13th, 14th (if they are not weekends) there will be days of forced downtime. If the days of rest between the crews fall on December-January, the days from January 01 are outside the accounting period and compensation must be paid. And the days from 01 to 14 January are forced downtime.

Even more problems arise if the accounting period is not a year, but less (for pests, it cannot be more than 3 months).

With a systemic interpretation of the problem, it is worth paying attention to the contradiction of the norms of Part 3 of Art. 301 of the Labor Code of the Russian Federation to the requirements of Part 3 of Art. 153 of the Labor Code of the Russian Federation, according to which if after work on a weekend the employee is given another day of rest, then the work is paid in a single amount, and the day of rest is not payable.

Arbitrage practice:

Initially, some courts considered that payment was due for the days of “overworked working hours” “ in excess of graphics ", determination of the Armed Forces of the Republic of Komi dated 17.03.2011 in case No. 33-1418 / 2011, in case No. 33-504 / 2011 dated 17.10.2011.

Subsequently, the courts changed their minds and began to exact for each day of inter-shift rest according to the employee's time sheet, the determination of the Armed Forces of the Komi Republic in case No. 33-3169, Supreme Court of the Udmurt Republic dated 09.06.2014 in case No. 33-1824 / 2014.

I have not found any cases considered at the level of the Supreme Court of the Russian Federation.

Available solutions to the problem:

Most of the comments simply cite the norm of the Labor Code of the Russian Federation without focusing on the problem of double payment.

Many employers ignore the norms of Part 3 of Art. 301 of the Labor Code of the Russian Federation and clause 5.4. The main provisions appeal to their internal contradiction and the impossibility of double payment.

There are employers who pay.

Having disassembled the situation "on the shelves", the article does not provide solutions to the above problems. Specifically, the authors write:

« One of the most problematic issues is determining when to pay for overtime hours. Existing norms allow three options for its definition:

1) when paying for the working days when the corresponding hours were worked;

2) when paying for working days when the hours were worked, as well as when paying for additional days of inter-shift rest;

3) when paying for additional days of inter-shift rest.

An analysis of each of these payment methods allows us to come to the following conclusions.

one). In accordance with the first method, the employer pays for overtime hours as part of the days when these hours are worked. Consequently, all hours actually worked are paid. At the same time, the employer does not pay for additional days of inter-shift rest, which directly contradicts Part 3 of Art. 301 of the Labor Code of the Russian Federation, as a result of which such a payment method does not meet the relevant legal requirements.

2). The second of the indicated methods assumes payment for the same hours in the composition of both working days and days of inter-shift rest. According to the current labor law there is no provision for double pay for the same hours worked. The application of this method in practice is irrational.

3). In contrast to the previously mentioned methods, the option of reimbursing overtime hours by paying for additional days of inter-shift rest most closely corresponds to the systemic interpretation of Part 3 of Art. 301 of the Labor Code of the Russian Federation and clauses 5.1, 5.4 of the Basic Provisions. The employer pays for all hours actually worked, since the number of additional hours corresponds to the number of hours in additional days of inter-shift rest. At the same time, the employer makes payment for additional days of inter-shift rest, taking into account the requirements of Part 3 of Art. 301 of the Labor Code of the Russian Federation».

The second and third conclusions provide for the payment of both the actual hours worked and the days of inter-shift rest and, as a result, give the same result.

One of the solutions to the problem:

A business pays very specific money for a certain job. With an increase in the tax and social burden, the amount of payment decreases and vice versa. As we can see above, the mechanical introduction of new unjustified guarantees creates additional problems for employers.

In this case, a comprehensive solution to the problem will be:

Reduction of tariff rates with the aim of redistributing part of wages to days of inter-shift rest;

Offset of accounting periods: establishment of an accounting period from the beginning of the corresponding shift, for example, with a shift "30 days after 30 from the 15th day of the next month" with an accounting period of 1 year, the accounting period should begin for the first shift on January 15, for the second - on February 15;

The double duration of the watch must be a multiple of the reference period. This remark is relevant for pests for whom the duration of the summarized registration should not exceed 3 months, for example, establish the first watch "15 days in 15" from January 1, the second - from January 15.

Dear colleagues, what decision has been made You on this situation, what advice and recommendations will you have You.

P.S. Why do you have to pay for the days of between shifts? Judicial practice insists on payment. The employer and his officials may be held administratively liable under Art. 5.27 of the Administrative Code of the Russian Federation.

SITUATION: An employee is hired on a rotational basis, for whom piece-rate wages are set, not related to the time spent on work. How in this situation should be paid for the period between shifts rest? And are there any peculiarities of paying the allowance for the rotational work method?

SOLUTION: In the case of piecework (tariff-free) form of remuneration, the amount of payment for inter-shift rest can be calculated as follows: determine the average cost of an hour of work on a shift, divide the total amount accrued for work during the shift by the hours actually worked in accordance with the schedule and the average cost hours of work multiplied by the duration of the working time established for this category of workers. The amount of the allowance for the rotational work method does not depend on the form of remuneration.

In accordance with Art. 301 of the Labor Code of the Russian Federation, every day of rest due to overworking within the work schedule on the shift (day of inter-shift rest) is paid in the amount of the daily wage rate, the daily rate (part of the salary (official salary) per day of work), if a higher pay is not established by the collective agreement, local regulation or employment agreement.

The application of the norm in question does not cause any difficulties in cases where the employee is set either a time wage (it is obvious that it is easy to calculate the daily rate from both the salary and the hourly rate), or piece rate, but within the framework of the tariff system.

Labor legislation does not consider the tariff system of remuneration as the only possible one. The employer has the right to establish other, tariff-free systems, including the introduction of piecework forms, in which the cost of a unit of production or work is established in other ways that are not directly related to hourly rates.

Calculation of payment for days of inter-shift rest

When using a piece-rate (tariff-free) form of remuneration, the amount of remuneration for days of inter-shift rest (i.e., the amount of additional payments for overtime work), in our opinion, can be calculated as follows.