If there is no work due to the fault of the employer. How is downtime paid due to the fault of the employee. How is forced downtime paid?

Downtime is a temporary suspension of work for economic, technological, technical or organizational reasons. In the Labor Code of the Russian Federation, it is mentioned quite briefly, although in practice it often becomes necessary to issue a simple one. It can be caused by equipment breakdown, extraordinary circumstances. V individual cases workers who cannot be transferred to another job or left in the same job (for example, if it is contraindicated for them) are sent to idle time. With regard to downtime, there are clarifications from Rostrud and other departments at the request of law enforcers.

For whose fault and for what reasons can a downtime arise?

May occur due to the fault of the employee, the fault of the employer or due to circumstances beyond the control of the employee and the employer.

The fault of the employee is expressed, for example, in the breakdown of a machine, mechanism, instrument or other equipment, which entailed the impossibility of working on it. The employer may be guilty of not organizing the labor process enough, not creating the necessary conditions for employees to perform job duties, because of which a simple one arose. Circumstances beyond the control of the employee and the employer may arise, for example, as a result of a strike, failure by counterparties to fulfill their obligations under the contract (untimely delivery of materials, parts, assemblies, assemblies, etc.).

Confirmation: Part 3 of Art. 72.2, Art. 157 Labor Code RF.

The reasons for downtime (temporary suspension of work) are economic, technological, technical or organizational circumstances(part 3 of article 72.2 of the Labor Code of the Russian Federation).

Economic reasons include, for example, the economic crisis, a drop in demand for goods, the absence (shortage) of customers (buyers), etc. Technological reasons are the introduction of new technologies (techniques, methods of production) or the renewal of existing ones. Causes of a technical nature are malfunctions, breakdowns, replacement of equipment. Organizational reasons are understood as, for example, the reorganization of the organization as a whole, the liquidation or reorganization of its structural divisions.

A comment:- Establishing the culprit of downtime has its own characteristics. I think that it is always necessary to take into account whose fault the employees are not able to perform their labor duties, since the payment for downtime depends on this. If one employee is guilty of damaging the equipment that others use besides him, the other employees will not be guilty of downtime. This position was confirmed by Rostrud in its letter No. 1276-6-1 dated May 12, 2011., where he explained that in the event of a breakdown of the same machine, fault in idle time can be determined in different ways. If a worker breaks down the machine, the downtime for that worker will be the worker's own fault. For other workers using this machine, downtime will be caused by reasons beyond the control of the parties, because in this case, neither the employer nor these workers are to blame for the breakdown of the machine.

The guilty employee will not be paid for downtime, and the rest must be paid in the amount of at least two-thirds of the tariff rate, salary (official salary), calculated in proportion to the downtime.

Confirmation: art. 157 of the Labor Code of the Russian Federation.

What is the downtime procedure?

The registration procedure is as follows.

1. Fix the fact of the occurrence of downtime.

The employee must inform the employer about the downtime caused by equipment failure and other reasons preventing the continuation of work. To do this, he sends a notice of the beginning of downtime to management. In practice, the employee addresses the notification to the immediate supervisor, who, in turn, brings this information to the attention of the head of the organization through a memorandum. However, the employee can contact the head of the organization directly.

Confirmation: part 4 of Art. 157 of the Labor Code of the Russian Federation.

2. Issue an order to declare downtime.

Downtime for the whole organization or for individual structural units (specific employees) is issued by order of the head of the organization. Since the unified form of the order has not been approved, it is issued in free form. The order includes the following information and conditions:

Downtime start and end date. A specific end date may not be indicated if at the time of issuing the order it is impossible to determine the duration of downtime ( deadlines downtime labor legislation does not establish);

Through whose fault the downtime occurred: through the fault of the employer, employee, or for reasons beyond the control of the parties (if this is already known at the time of issuing the order);

Positions (professions), full name of employees (employee) or names of structural subdivisions (subdivisions) of the organization in respect of which downtime is declared;

The amount of payment for downtime;

The need for the presence at the workplace of employees in respect of whom a downtime is declared or permission for them not to go to work (indicating specific names, structural divisions or the entire organization as a whole).

The downtime order must be familiarized with the signature of the employees of the organization to whom it applies.

3. Notify the employment service about the downtime, if it is associated with the suspension of production.

At the same time, as Rostrud explained in letter No. 395-6-1 dated March 19, 2012, we are talking about the suspension of production as a whole, and not of individual units or equipment. This must be done within three working days after the decision to suspend production (declaration of downtime) (paragraph 2 of article 25 of the Law of the Russian Federation No. 1032-1 of April 19, 1991). Since the unified form of the message has not been approved, it can be made in free form.

4. Fill out downtime records (idle records).

Downtime records and downtime reports are designed to record specific downtime for each employee, either structural unit(organization) as a whole. The unified form of such documents is not approved, therefore they are drawn up in free form.

How to issue a sheet of accounting for downtime and an act of downtime?

A downtime accounting sheet is issued, as a rule, in case of downtime individual workers structural unit and includes the following information:

The start date of the downtime and its end (if it is possible to set an end date);

The reason for the downtime (it is advisable to indicate it in strict accordance with the wording of part 3 of article 72.2 of the Labor Code of the Russian Federation);

Whose fault did the downtime occur: through the fault of the employer, employee, or for reasons beyond the control of the parties (if this is already known at the time the document was drawn up);

Positions (professions), full name of employees (employee) or names of structural subdivisions (subdivisions) of the organization that suspended work;

Signature and transcript of the signature of the head of the structural unit in which the employees are idle.

An act of idle time is drawn up if a structural unit or organization as a whole is idle. It is signed by the heads of idle structural divisions, the personnel department, the labor protection service, a representative labor collective etc. The act of idle time states:

Reason and duration of downtime;

Guilty party downtime;

Positions (professions) of employees or names of structural subdivisions (subdivisions) of the organization that have suspended work, etc.

The act is approved by the head of the organization.

In addition to the above information, downtime records and downtime acts may contain calculations of the organization’s losses from downtime, in particular the amounts payable to employees for the downtime period, the amount of taxes and insurance premiums from them, depreciation deductions for idle facilities, expenses for public Utilities on mothballed premises, etc.

Is an employee obligated to be at the workplace during downtime?

He is obliged to stay, except for the case when the employer allowed him to be absent from work and issued such permission in writing (for example, by order).

Labor legislation does not directly regulate the issue of the need for employees to be present at their workplaces during downtime. But since the downtime period refers to working time (Part 1, Article 91 of the Labor Code of the Russian Federation), and not to rest time (Article 107 of the Labor Code of the Russian Federation), employees cannot use it at their discretion and leave their jobs. Their absence from work without the permission of the employer can be regarded as a violation of labor discipline.

The employer (head of the organization) has the right to decide that during the period of downtime, the employee may not be present at work. It is advisable to issue such an order in writing, for example, include it as a separate item in the Order on declaring downtime.

It should be borne in mind that if the employee is on probationary period, downtime is excluded from the test period if he is absent from work. But if the employee does not leave the workplace during the downtime, this time will be included in his probationary period.

Confirmation: Part 3 of Art. 72.2, Art. 157 of the Labor Code of the Russian Federation, paragraph 7 of the letter of Rostrud No. 395-6-1 dated March 19, 2012

Is downtime included in the length of service, giving the right to the next paid vacation?

Included in work experience.

The length of service giving the right to the annual basic paid leave includes, in particular, the time when the employee did not actually work, but after him in accordance with labor legislation and other regulatory legal acts containing norms labor law, collective agreement, agreements, local regulations, employment contract the place of work (position) was retained (paragraph 3, part 1, article 121 of the Labor Code of the Russian Federation).

Rostrud clarified that during the period of downtime, the employee retains the place of work (position) regardless of the reasons for the downtime. Therefore, downtime, regardless of its reasons (including due to the fault of the employer, the fault of the employee, or due to circumstances beyond the control of the parties) is included in the length of service, giving the right to the next paid leave (clause 5 of the letter of Rostrud No. 395- 6-1 of March 19, 2012).

Downtime due to the fault of the employer is not such a rare occurrence and occurs both on large enterprises as well as in small firms. But at the same time, practically no attention is paid to the issue of registration of idle time in labor legislation. This article will focus on how to document downtime and pay workers time.

What is meant by the concept of "simple" in the Labor Code of the Russian Federation

The concept of "simple" appears in the Labor Code of the Russian Federation in Art. 72.2 and 157. And if in the second article we are talking about payment in such a situation of working time, then in the first there is a definition according to which a temporary suspension of work is called downtime. But the reasons for the suspension of activities are also immediately indicated. Their character may be:

  • technical;
  • technological;
  • economic;
  • organizational.

But here the downtime time frame is not indicated. It can last a day, a week or a month. It turns out that until the employer wants or is unable to resume work, he has the right to extend the downtime. The main thing is that everything should be formalized.

Another important detail is whose fault the work was suspended. This can be done:

  • due to the fault of the employer;
  • fault of the employee;
  • reasons beyond the control of the employee and the employer.

In practice, it can be difficult to distinguish whether the downtime was formed due to the fault of the employer or due to reasons beyond the control of the employee and the employer.

For example, demand for products fell, and production had to be temporarily suspended. Is the employer to blame for the forced downtime? Naturally, the employer does not admit his guilt, referring to the economic crisis. But, on the other hand, this situation can be presented as an unsuccessful entrepreneurial activity, which means that the employer must be responsible for its consequences. And if the employees do not agree with the position of the employer, then the court will have to determine the presence of his guilt.

How to issue a downtime due to the fault of the employer

Registration of downtime falls on the shoulders of the employer. It is he, according to the norms of Art. 91 of the Labor Code of the Russian Federation, is obliged to keep records of the hours actually worked by each employee. For these purposes, special forms are used. The resolution of the State Statistics Committee “On approval of unified forms of primary accounting documentation for accounting for labor and its payment” dated 01/05/2004 No. 1 provides forms T-12 and T-13, which are used for the time sheet.

Don't know your rights?

However, with the introduction of new rules accounting The Ministry of Finance published information dated 04.12.2012 No. PZ-10/2012, where forms T-12 and T-13 were canceled as mandatory for enterprises. Since 01/01/2013, the management of companies can independently approve the form for recording hours worked.

In order to mark downtime in the time sheet, you must legal basis. Therefore, the enterprise issues a separate order, which indicates the downtime due to the fault of the employer and those employees who temporarily suspend their labor activity, as well as the amount of wages for this period.

If the employer did not initiate the registration of downtime, then the employee himself may take care of this. To do this, he must convey information about the lack of working conditions to his superiors. It is better to do this in writing, for example in the form of a report.

What payment is provided in case of downtime for employees in 2017-2018

When the employer is to blame for the downtime, he is obliged to set the amount of remuneration for the entire period of suspension of work at least 2/3 of the average salary of the employee. It is important that not only the salary is used to calculate the average salary, but also all bonuses and allowances received by the employee.

And here an interesting point arises: it will be cheaper for the employer to issue a simple one for reasons beyond the control of the employees and the employer. Then he will have to pay 2/3 of the salary (tariff rate). The employee must track this moment himself if he wants to protect his rights; he must also be prepared to defend them, perhaps even in court.

The fact that the Labor Code of the Russian Federation refers to 2/3 does not mean that the employer cannot increase payments. 2/3 of the average salary or salary is the minimum.

What should an employee do during downtime

If an enterprise declares forced downtime due to the fault of the employer in accordance with all the requirements of the Labor Code of the Russian Federation, then the employee faces the question: is it necessary to go to work? This moment should be settled between the employees and the employer at the very beginning. If the employer allows not to visit workplaces, then this should be displayed in the order. Otherwise, the absence of an employee at the workplace can be considered as absenteeism.

The main thing is that downtime due to the fault of the employer does not turn into a forced vacation when employees go home. Usually, before this, the employee is asked to write an application for time off or leave at his own expense. Again, the employee in this case must be attentive and defend his civic position.

During downtime due to the fault of the employer, the employee may be offered to transfer to another position - however, for this, the company must have open vacancies. If the employee agrees, then temporary transfer can be issued for up to a year. Without the consent of the employee, he can be transferred in case of downtime to another job for a period of not more than a month. But if there is only a job that requires a lower qualification for replacement, then even for this month the consent of the employee will be required.

If the transfer nevertheless took place, then the salary is paid according to the conditions of the new position, but it cannot be less than the average salary at the previous job.

Downtime due to the fault of the employer is registered by the person responsible for maintaining personnel work; if the company is small, then most often this is done in the accounting department. There are no clear requirements for the form of an order issued in such cases in labor legislation. However, it is recommended not just to announce a temporary suspension labor activity, and describe in detail all the circumstances of the downtime: the start date, the period for which it is planned to suspend activities, list the persons to whom the order applies, and announce their salary for the downtime period. It is better to acquaint employees with such an order against receipt.

Declaring downtime is a way to save production and employees during a temporary shutdown. However, its introduction raises many questions. When can I declare downtime? For how long? For how many workers? Can the absence of orders be considered the fault of the employer, and in this case, how to pay for the temporary suspension of work? Can downtime pay be less? minimum size salary (minimum wage)?

What is simple?

Downtime is a temporary suspension of work for reasons of an economic, technological, technical or organizational nature (Article 72_2 of the Labor Code of the Russian Federation, hereinafter referred to as the Labor Code of the Russian Federation). Thus, the reasons for downtime can be completely different: equipment breakdown, undersupply of components, a drop in demand for goods produced by the organization, etc. During a crisis, as a rule, economic difficulties faced by the employer can lead to downtime.

What is the legal significance of the reasons why downtime is possible?

1. An employee may not agree that there is no work for him, i.e. dispute the very fact of the existence of reasons of an economic, technical, technological or organizational nature, entailing a temporary suspension of work.
In this case, the employee has the right to file a complaint with the labor inspectorate or the prosecutor's office, or go to court to declare the order to send him to idle time illegal, to oblige the employer to allow him to work, to recover the difference in pay for downtime up to full average earnings on the basis of Art. 234 of the Labor Code of the Russian Federation, which provides for the obligation of the employer to compensate the employee for earnings not received by him in all cases of illegal deprivation of his opportunity to work.
It should be borne in mind that when contacting the labor inspectorate and / or the prosecutor's office, most likely, these bodies will consider that there is a disputable situation that only the court can finally resolve and will also recommend that you file a lawsuit with the court.
What could be the actual basis of your claim? - We need to look at the situation. You can find out the amount of work of your colleagues who are not idle, compare your situation with those who are also not working, etc. It may not be easy, but the advice here can be one: stock up on evidence of the illegality of sending you to downtime in advance, before the trial. Depending on the situation, you can also refer to the fact that you were sent to a downtime on some fixed date: you can also argue with this, arguing that at any time new contracts with suppliers and customers may appear or the negotiations that have begun can be completed and etc., i.e. that it is virtually impossible to predict in advance how long the downtime will last.
After evaluating the situation, or better, having received the advice of a specialist, having weighed all the risks, you can go to court.

2. Downtime may occur in the normal course of events: the supplier of the components was in bad faith and delayed the delivery. On the other hand, extraordinary circumstances can also lead to downtime, namely: a natural or man-made disaster, industrial accident, industrial accident, fire, flood, famine, earthquake, epidemic or epizootic, and any exceptional cases that endanger life or normal living conditions for the entire population or part of it (part 2 of article 72_2 of the Labor Code of the Russian Federation). If the downtime is caused by the indicated emergency circumstances, then the temporary transfer of the employee without his consent for a period of up to one month to work not stipulated by the employment contract with the same employer is possible (for more details on the specified transfer, see below).

Temporarily no work during a crisis - what should an employee do?

So, during a crisis, downtime is usually caused by economic reasons. However, since downtime entails the provision of wages to employees (as a general rule), as well as a number of guarantees, employers often resort to various violations of the law.
In the event of economic hardship, an employer has several legal options:

1) carry out a reduction in the number or staff;
2) issue a downtime order;
3) if economic reasons lead to a change in organizational or technological working conditions (changes in equipment and production technology, structural reorganization of production, etc.), which, in turn, leads to the threat of mass layoffs of workers, the employer, in order to save jobs is entitled under Art. 74 of the Labor Code of the Russian Federation to introduce part-time work for up to six months. The third option is not considered in this article.

In the first case, the employer decides that it is impossible to retain employees, in which case his right to reduce the number or staff is recognized by the legislator. The decision on the advisability of such actions is taken by the employer's body, which has such a right in accordance with founding documents; the validity of this decision cannot be challenged in court or when applying to government bodies(labor inspectorate, prosecutor's office). The trade union can influence this decision and its consequences to some extent: when deciding to reduce the number or staff of employees and the possible termination of employment contracts with employees, the employer is obliged to notify the elected trade union body in writing no later than two months in advance (if possible mass reductions - no later than three months) before the start of the relevant activities. The indicated deadlines for warning the trade union committee, in fact, coincide with the deadlines for warning the employees themselves about their dismissal: the employer is obliged to notify the trade union committee no later than two months before the start of termination of employment contracts with employees. This was explained in the Ruling of the Constitutional Court of the Russian Federation of January 15, 2008 N 201-O-P. The employer can consult with the trade union and take into account its opinion regarding the need and procedure for the reduction.

In the second case, the employer decides to keep the employees. Russian labor legislation establishes special norms that allow the employee and the employer to survive the period of temporary absence of work, while maintaining workplace behind the worker. In case of temporary absence of work, the employer is obliged to register the employee's stay in idle time.
However, in practice, a different approach is widespread, when the employer draws up documents stating that the employee is on leave without pay - this allows you not to pay wages, and the period of being on such leave is not limited to a maximum duration. But for an employee, such a vacation is often an unacceptable option precisely because of the lack of payment. Sending on leave without pay forcibly is illegal: according to Art. 128 of the Labor Code of the Russian Federation, unpaid leave may be granted to an employee upon his written application for family reasons and other valid reasons; the duration of the leave is determined by agreement between the employee and the employer. Learn more about self-funded vacations here.

What awaits the employee in case of downtime?

Since downtime is a temporary suspension of work, it means that you are not doing your usual work. However, there is no norm allowing the employee to be absent from his workplace during the idle period. After all, downtime can end at any time: equipment repairs are completed, goods are unloaded, etc. The idle period is a special period, it is not a time of rest for the employee, that is, the time during which the employee is free from the performance of labor duties and which he can use at his own discretion. Consequently, during the idle period, employees in work time should be at their jobs. This conclusion is confirmed judicial practice(See, for example, the resolution of the Federal Antimonopoly Service of the Volga-Vyatka District of February 28, 2006 No. A11-5850 / 2005-K2-27 / 257, the decision of the Arbitration Court of the Ryazan Region of January 22, 2007 N A54-4926 / 2006S18).
However, a collective agreement, agreement, local regulation or your individual employment contract may provide that during the entire period of downtime or part of it, employees are exempted from the obligation to be at work. Such a provision of a collective agreement or local normative act will be valid, since it improves the position of workers in comparison with the established labor legislation and other regulatory legal acts containing labor law norms (which is allowed by Articles 8 and 9 of the Labor Code of the Russian Federation).

Temporary transfer to another job in case of downtime

In the normal course of work, the employee is obliged to perform only the work for which he was hired; he has the right to refuse an offer or assignment to perform any other work not provided for by his employment contract.

In case of downtime caused by the emergency situations mentioned above, the situation changes: the employer has the right, without taking into account the consent of the employee, to transfer him for up to one month to another job not provided for by the employment contract.
The conditions for the legitimacy of such a transfer are:
- downtime caused by precisely those emergency circumstances that are indicated in the second part of Art. 72_2 of the Labor Code of the Russian Federation;
- temporary nature of the transfer: for up to one month;
- transfer to work requiring lower qualifications is allowed only with the written consent of the employee;
- it is forbidden to transfer an employee to work that is contraindicated for him for health reasons (Article 72_1 of the Labor Code of the Russian Federation).
The remuneration of an employee in such a transfer should be carried out according to the work performed, but in any case - not lower than the average earnings for the previous job, even if the work is performed with a lower qualification.
Temporary transfer to another job due to downtime is executed by order (instruction) of the head, which must indicate the job to which the employee is transferred (position, profession, specialty, qualification or specific job duties), the start and end date of the transfer to another job, specific reason for the transfer.

How should downtime be paid?

During the period of downtime, your workplace is reserved for you, and this period, as a general rule, must be paid.
The current Labor Code of the Russian Federation provides that downtime is paid differently depending on the presence or absence of fault in the downtime of one of the parties to the employment relationship (Article 157):
downtime due to the fault of the employer is paid in the amount of at least two thirds of the average salary of the employee;
downtime due to reasons beyond the control of the employer and employee is paid in the amount of at least two thirds of the tariff rate, salary (official salary), calculated in proportion to the downtime;
downtime due to the fault of the employee is not paid.

Please note that the law only sets minimum limits for downtime pay. If the labor contract, collective contract or agreement provides for a higher amount of payment, then the rules of the labor contract, collective contract, agreement shall apply accordingly.

The average earnings to pay for downtime due to the fault of the employer is determined in general order according to Art. 139 of the Labor Code of the Russian Federation, as well as Decree of the Government of the Russian Federation “On the peculiarities of the procedure for calculating the average wage” dated December 24, 2007 No. 922. To calculate the average wage, all types of payments provided for by the wage system used by the relevant employer are taken into account, regardless of the sources of these payments. Billing period - i.e. the period for which these payments are taken into account is equal to 12 calendar months preceding the month in which the downtime occurred. In this case, the calendar month is the period from the 1st to the 30th (31st) day of the corresponding month inclusive (in February - to the 28th (29th) day inclusive).

Average salary of an employee
=
Average daily earnings
x 2/3 x

The average daily wage, as a general rule, is calculated by dividing the amount of wages actually accrued for the days worked in the billing period, including bonuses and remuneration, taken into account in accordance with the above decree of the Government of the Russian Federation, by the number of days actually worked during this period.
When determining the average earnings of an employee with a summarized account of working hours, it is necessary to determine the average hourly earnings and multiply it by the number of working hours according to the employee's schedule in the period payable.

Payment for downtime for reasons beyond the control of the employee and the employer is determined depending on the form of remuneration established in the organization: time or piecework.
With time wages, the wages of employees, depending on the conditions of remuneration established for you, are calculated based on:
1) or hourly tariff rate;
2) or the daily tariff rate;
3) or salary (official salary).

If an hourly wage rate is set for an employee, then payment for the downtime period is calculated by multiplying the hourly wage rate by 2/3 and by the norm of working hours in a working day (shift) and by the number of working days in the downtime period:


=
Hourly rate
Norm of working hours on a working day (shift)
x 2/3 x
Number of working days in the idle period

If a daily wage rate is set for an employee, then the payment for the downtime period is calculated by multiplying the daily wage rate by 2/3 and the number of working days in the downtime period:

The amount of payment for downtime for reasons beyond the control of the employee and the employer
=
Daily tariff rate
x 2/3 x
Number of working days in the idle period

If the employee has a salary (official salary), i.e. a fixed amount of wages for a calendar month, then the downtime payment is calculated as follows:

The amount of payment for downtime for reasons beyond the control of the employee and the employer
=
Salary (salary)
: total number of working days in a month
x 2/3 x
Number of working days in the idle period

Payment of idle time to employees whose labor is paid by the piecework is calculated on the basis of 2/3 of their hourly (daily) rate in the same manner as for employees whose labor is paid by the hour.

Downtime due to the fault of the employee is not subject to payment.

Thus, the employer has the right not to pay downtime only in the only case: if the fault of the employee in the occurrence of downtime is established, for example, the employee deliberately made the equipment unusable.

Is it the fault of the employer in downtime: how to fix it?

It is often difficult to establish whether the employer is at fault or whether the downtime arose for reasons beyond the control of any of the parties to the employment contract - it is difficult in practice. Often, employers themselves are in no hurry to admit their guilt, determining the payment for downtime based on the employee's tariff rate or salary. This can be extremely unprofitable for the employee, since the tariff (permanent) part of his earnings can be quite low, and the main part of his income is the so-called. variable parts: various allowances and surcharges, bonuses, as well as payment overtime, work on holidays and weekends, etc. All these payments are taken into account when calculating the average wage, but are not included in your salary or base rate.

In connection with this problem, in a dispute with an employer about the amount of payment for downtime, one can refer to the opinion of the Chamber of Commerce and Industry of the Russian Federation, according to which “negative financial and economic factors, the so-called “global financial crisis”<...>are not force majeure in the relations of the subjects entrepreneurial activity, but refer to financial risks. As a rule, force majeure circumstances include fires, floods, earthquakes, hurricanes, hostilities, prohibition of export and import of goods, epidemics, strikes or other circumstances expressly provided by the parties to the contract. However, according to paragraph 3 of Art. 401 [of the Civil Code of the Russian Federation], force majeure circumstances do not include, in particular, violation of obligations by the debtor's counterparties, lack of goods on the market necessary for execution, lack of necessary Money”(letter No. 9/600 dated November 25, 2008, not officially published). In other words, the circumstances specified in the last sentence do not relieve the organization from the obligation to fulfill the agreements concluded with its counterparties, and their failure to fulfill them for the indicated reasons may result in the debtor being held civilly liable (collection of interest, etc.), i.e. the debtor's behavior is found guilty by the court. The same logic can be used to justify labor disputes with the employer on the issue of payment for downtime.

This conclusion is confirmed by judicial practice.
Thus, in the Third issue of judicial practice (2009), prepared by the Central Council of the Mining and Metallurgical Trade Union of Russia, the following examples of successful judicial practice in recovering the difference in downtime payment up to 2/3 of the average wage are given.
OAO Zlatoustovsky steel plant” (Chelyabinsk region) filed a lawsuit to invalidate the instructions of the state labor inspector. The applicant did not agree with the requirements of the inspector: to pay downtime in the amount of at least two thirds of the average salary of the employee and to pay for the shortfall of working time in part-time mode as downtime.
In court, the applicant's representative pointed out that the order was issued without taking into account the current situation in the metallurgical industry. The lack of orders for the company's products is caused by the deterioration of the general economic situation in the country and abroad in the context of the global financial and economic crisis. As a result, the decline in production finished products and suspension of production facilities should be considered as circumstances beyond the control of the employee and the employer. Therefore, payment for downtime should be made in the amount of two-thirds of the tariff rate (salary), calculated in proportion to the downtime.
After examining the circumstances of the case, the court upheld the order of the state labor inspector and ordered the applicant to pay for idle time for economic reasons in the amount of at least two-thirds of the average wage of an employee.

A similar case on the claim of JSC "Combine" Magnezit "was considered by the Satka City Court Chelyabinsk region. However, in this case, the court of first instance considered that the downtime occurred for reasons beyond the fault of the employer and employee, and, therefore, payment for the downtime period should be made based on two-thirds of the tariff rate.
The Judicial Collegium for Civil Cases of the Chelyabinsk Regional Court did not agree with the decision of the court of first instance and considered the requirement of the state labor inspector to pay for downtime in the amount of at least two-thirds of the average wage as legitimate.
In both cases, the chief legal labor inspector for the Chelyabinsk region L. Meshcheryakova and the legal labor inspector A. Goryunov took part in the court hearings.

JSC "Uralredmet" applied to the Kirovsky District Court of Yekaterinburg with a claim against the State Labor Inspectorate in the Sverdlovsk Region to recognize the order as illegal and cancel it.
The essence of the dispute. The Chief State Labor Inspector issued an order to OAO Uralredmet to eliminate violations of labor legislation: to pay for downtime in the amount of at least two-thirds of an employee's average wage.
The plaintiff, in support of his claims, indicated that the reasons for the downtime were non-payment by buyers of the products manufactured by the enterprise, a decrease in orders and other reasons - the consequences of the financial and economic crisis. Therefore, downtime must be paid at least two-thirds of the tariff rate.
The court did not agree with the plaintiff's arguments and dismissed the claims. The Deputy Head attended the hearing legal department Sverdlovsk Regional Trade Union Committee O. Rakhimov.

Can downtime pay be less than the minimum wage?

Yes, maybe, since in any case you are paid either 2/3 of the average salary, or 2/3 of the salary (official salary) / tariff rate, and not the full salary. Secondly, the minimum wage is set for a monthly period, and downtime can last only a few days.

Another question that is beyond the scope of this article is, can your salary be less than the minimum wage?
In our opinion, your salary (official salary) cannot be lower than the minimum wage (minimum wage). This conclusion is based on the following.
On the one hand, according to Art. 133 of the Labor Code of the Russian Federation, monthly wage an employee who has fully worked out the standard of working hours for this period and fulfilled the labor standards (labor duties) cannot be lower than the minimum wage. In other words, in order to qualify for wages in the amount of the minimum wage, you need to fulfill only two conditions: 1) work out the norm of working hours (and not work it out due to overtime or work on holidays), and 2) fulfill labor standards (labor duties). No other additional conditions are required.

If we compare this provision of the Labor Code of the Russian Federation with the concept of salary (official salary), given in Art. 129 of the Labor Code of the Russian Federation, it becomes, in our opinion, obvious that he (salary) cannot be less than the minimum wage. So, the salary (official salary) is a fixed amount of payment for an employee for the performance of labor (official) duties of a certain complexity for a calendar month without taking into account compensatory, incentive and social payments. Those. to qualify for full salary, you must fulfill the same two conditions: 1) work out a calendar month and 2) fulfill your labor duties for this period. No other conditions are required.

Do I need to notify the employer about the start of downtime?

You must notify the employer, namely inform your immediate supervisor, or another representative of the employer (for example, the head of the organization) about the start of downtime caused by equipment breakdown and other reasons that make it impossible for you to continue to perform your job function.
The Labor Code of the Russian Federation does not link your right to receive downtime payment with the performance of this obligation, but, nevertheless, it is in your interests to report such reasons in writing. It is also best to get a mark of acceptance on your copy of the memo. This will fix the exact start of downtime, and therefore will affect the correctness of its payment. Moreover, you will also avoid the risk of being punished for not fulfilling your work duties: if you report downtime in time, you are not responsible for the inability to perform your work duties.

What to do if there is no work, and the employer refuses to draw up a simple one?

The start and end of downtime must be recorded by the employer. The employer is obliged to issue an order to send the employee (employees) to idle time, indicating its reason and the procedure for paying for idle time.
On the basis of this document, entries are made in the time sheet (forms N T-12 and T-13, approved by the Decree of the State Statistics Committee of the Russian Federation of January 5, 2004 N 1). To indicate downtime for reasons beyond the control of the employer and employee, a symbol is used: the letter code - "NP" or the digital code - 32, and to indicate being idle due to the fault of the employer: the letter code "RP" or the digital code - 31 .
If work is not provided in accordance with the employment contract, and the employer does not issue an order to send to a simple employer, you should write and send to the employer a statement that you are in idle time and ask to pay for this time in accordance with labor legislation. The application must indicate the reason for the downtime, as it affects the amount of pay due to the employee. You can also indicate that you are ready to start working at any time and ask for a reason for the lack of work for you.

In case of a possible dispute, it makes sense to obtain evidence confirming the lack of work. If it is not possible to make copies of internal working documents or journals that indicate what work is entrusted to the employee (if such documents are maintained), you can contact the elected trade union body so that on behalf of the trade union an act is drawn up in relation to one or more employees on the absence work. The act should indicate that the employee was at the workplace, but the work was not provided or entrusted to him. The act is signed by members of the commission created by the trade union committee, and can also be signed by witnesses (colleagues of the employee), the employee himself. In the absence of a trade union committee, enlist the support of your colleagues, hand over the statement in the presence of witnesses.

There are cases when the employer does not draw up a downtime due to his own fault, and the immediate supervisors instead verbally inform the employees that they can not go to work today. However, such an unplanned “rest time” for workers can go sideways for them: they are required to work it out later on Saturday or Sunday. At the same time, all these manipulations may not be reflected in internal documentation, as well as accounting.
You can either agree to such working conditions, understanding that you are making big concessions to the employer and giving him a real opportunity to save: firstly, do not pay for downtime, and secondly, do not pay for an increased amount of work on a day off.

If you do not agree to such a “work schedule”, then do not pay attention to verbal warnings and calls, come to your workplace, write a statement about the start of downtime, passing it under the acceptance mark. If you are not paid this time, write a complaint to the labor inspectorate, the prosecutor's office or go to court. If you are offered to come to “work out” the downtime on your day off according to your schedule, a day off, require the issuance of a written order to this effect. It is better to get a copy of the shift schedule with your signature on it in advance in order to have proof that the disputed day was a day off for you. To avoid the risk of being fired for absenteeism, come to work on a day off, but record this fact: by your statements about issuing an order to bring you to work on a day off, about paying for work on a day off in an increased amount, the testimony of colleagues.

Simple and temporary disability, the impact of downtime on length of service

If you fall ill during your downtime, you are entitled to your sick leave pay.
Issues of payment for temporary disability and maternity leave during downtime are regulated by the Federal Law of December 29, 2006 No. 255-FZ “On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Maternity” (hereinafter - Law No. 255-FZ). According to paragraph 7 of Art. 7 of Law No. 255, temporary disability benefits for a period of downtime are paid in the same amount as wages are maintained during this time, but not more than the amount of benefits that this worker or employee would receive under the general rules for calculating benefits.

Downtime is subject to accounting in the length of service, giving the right to annual paid holidays. So, according to Art. 121 of the Labor Code of the Russian Federation, such length of service includes the time when the employee did not actually work, but in accordance with labor legislation, he retained his place of work (position), i.e. idle time is turned on at this time.

Downtime should be included in the insurance period for determining the amount of benefits for temporary disability, for pregnancy and childbirth as part of a more general period: the period of work under an employment contract. Downtime is not reflected in work book, and the insurance period for paying sick leave is determined by entries in the work book. In addition, downtime payments are subject to insurance premiums to the Fund. social insurance RF.

As for the insurance period for the appointment of labor pensions, downtime is to be included in the general insurance period as part of a more general period of work under an employment contract. In addition, downtime payments are subject to insurance premiums to the Pension Fund of the Russian Federation.
With regard to early retirement, the situation is different. According to paragraph 9 of the Rules for calculating periods of work, which gives the right to early appointment of labor old-age pensions in accordance with Articles 27 and 28 of the Federal Law "On labor pensions in Russian Federation”, are not included in periods of work that give the right to early appointment of an old-age labor pension, periods of downtime (both through the fault of the employer and the fault of the employee).

In the Letter of the Federal Tax Service of 04.20.2009 N 3-6-03 / 109, it is explained that the employer has the right to attribute to expenses that reduce the tax base for income tax, the entire amount of payment for downtime, as economically justified expenses (Article 252 of the Tax Code of the Russian Federation). Also, in this letter, it was explained (in relation to the previously collected single social tax) that payments for downtime due to the fault of the employer and for reasons beyond the control of the employer and employee are subject to a single social tax in accordance with paragraph 1 of Art. 236 of the Tax Code of the Russian Federation and insurance premiums in accordance with paragraph 2 of Article 10 of the Federal Law of December 15, 2001 No. 167-FZ "On Compulsory Pension Insurance in the Russian Federation" in the generally established manner.
If the labor (collective) agreements or internal regulations on remuneration in the organization provide for payment for downtime in a larger amount than established in Art. 157 of the Labor Code of the Russian Federation, the excess amount is also subject to a single social tax and insurance premiums.

An analysis of the current legislation on the payment of insurance premiums to off-budget funds also allows us to conclude that the amounts of payment for downtime are subject to the specified insurance premiums.

In working life, situations are not uncommon when an employee cannot perform his duties against his will. Turned off the light - the work got up, they are doing repairs in trading floor- it is impossible to serve customers, raw materials have not been delivered - there is nothing to produce goods from.

A variety of economic, technological and emergency conditions can disrupt the normal functioning of an organization. If these reasons are temporary and do not lead to the complete liquidation of the business, downtime is introduced.

What is downtime due to the fault of the employer?

Downtime is understood as a forced suspension of work. This measure is introduced due to the economic situation, equipment breakdown, lack of Supplies and raw materials, demand for products, natural disasters, accidents, license revocation and a number of other reasons.

Depending on them, there are:

  • downtime due to the fault of the employer;
  • downtime due to the fault of the employee;
  • downtime due to circumstances beyond the control of the parties.

It takes place when it is introduced through his fault (for example, revocation of a license from a bank for violations of the law or other suspension of activities by regulatory authorities, a fire due to the employer's failure to comply with safety standards), or is due to production necessity. The latter is the most common.

Indeed, sometimes it is required to carry out repairs and modernization of equipment, move to other premises, spend sanitary days, and the like. It also happens that the necessary materials are not delivered to the enterprise or the demand for certain products or services drops sharply.

It's not the employee's fault. Labor legislation stipulates that his work should be provided by management. To protect the worker and give him a livelihood while the authorities solve their problems, the law provides for a guaranteed saving of part of the earnings for the period of downtime.

If the employer is not going to be liquidated, and the reasons are obviously temporary and not too long-term, it is better to introduce downtime than to reduce employees.

This allows you to retain a staff of professionals and quickly resume production when the grounds for suspension of activities disappear, moreover, you will not have to bear additional costs for paying compensation in case of dismissal due to liquidation or staff reduction.

We make a simple one correctly

An order must be issued.

There is no special procedure for introducing downtime in the Labor Code of the Russian Federation.

In practice, if such a need arose, the head of the organization must issue a written order, where to write:

  • company name;
  • number and order number;
  • what is the order about (“On the introduction of downtime”);
  • grounds for suspension of work (equipment modernization, accident, repair of premises, etc.);
  • which of the employees will be idle;
  • downtime (start and end time);
  • whether idle workers are required to come to work;
  • payment amount;
  • who is responsible for carrying out the order.

The order is signed by the chief executive and under the signature is brought to the attention of all interested employees.

The law does not oblige the authorities to ask the opinion of the trade union about downtime.

There are several nuances in the preparation of the order. So, at the time of issuing the order, it is not known how long the work stops, it is better to write the minimum guaranteed period.

Especially if employees were allowed not to appear at their workplaces, or the need for downtime is eliminated for different employees in stages (for example, as the accident is eliminated in different workshops). If the reasons for downtime do not disappear within the period specified in the order, an order must be issued to extend the downtime period.

A special order to end the downtime is not issued.

The exceptions are cases when work is resumed ahead of schedule or the conditions for the location of employees change.

An example of an order to introduce downtime

COMFORT LLC

No15-OD dated 06/17/2017

About the introduction of downtime

In connection with the replacement commercial equipment and holding repair work in the trading floor I order:

  1. Declare downtime due to the fault of the employer for the shop assistants Smirnova Victoria Sergeevna, Kharcheva Oksana Viktorovna, Sergeev Denis Vladimirovich;
  2. Set the deadline for the introduction of downtime from 06/25/2017. to 10.07.2017;
  3. Allow the specified employees not to go to work during the specified period;
  4. To the accountant-calculator to pay wages to idle employees in the amount of two-thirds of the average earnings;
  5. To the personnel officer in the timesheet, put down the RP code;
  6. I am responsible for the execution of the order.

Timesheets for those who are idle

Since the beginning of 2013, time worked can be taken into account not only using standard forms T-12 and T-13, but also in any convenient time sheet form approved by a particular organization.

When filling out the time sheet for a specific employee who is idle due to the fault of the administration, the RP code is entered in the first line, and below the hourly indicator (for example, 8).

Employment Service Notice

Whether or not to inform the employment service about the idle time introduced depends on the circumstances of its introduction. If production has completely stopped due to downtime, you need to notify. In other situations, this is not necessary.

We pay downtime due to the fault of the administration

Special procedure for downtime payment.

The administration suspended work on its own initiative - it must pay the employee at least two-thirds of the average salary (Article 157 of the Labor Code). At the same time, the average salary includes, in addition to the salary, all bonuses, allowances and additional payments.

How the average earnings are correctly calculated is explained in the Regulation on the features of calculating the average wage (see Decree of the Government of the Russian Federation of December 24, 2007 No922).

This is the minimum guaranteed by law.

However, by local acts, including directly by an order to introduce downtime, the employer can guarantee an increased percentage of payment.

Downtime payment refers to, therefore, it is accrued and paid in the same terms as the regular salary.

How to pay downtime while on vacation

For employees on regular annual leave, there is no additional payment for downtime. But if an employee left, and his unit is idle, from the day of exit, he is charged for downtime.

Similarly, payment is made if the employee went on vacation from idle time. While the employee is idle, he receives 2/3 of the salary, with vacation, vacation pay is calculated.

If the accruals do not reach the minimum wage

Sometimes payroll accountants are faced with the fact that the salary during downtime is less than the minimum wage. This is relevant when work is suspended for a month or more or the employee's salary is at the minimum wage. The question arises whether it is necessary to pay extra to the minimum wage.

No. The law provides that wages should not fall below the minimum wage only when the employee has worked the full time norm.

An idle employee does not actually work, which means that there is no need to pay extra to the minimum wage.

Sick pay for downtime

Sick leave is not always paid.

During downtime, sick leave is not paid. If an employee falls ill, and at that time the organization suspended work, then the sick leave is paid for the days preceding the downtime, the percentage of payment depends on the length of service (60-100%).

From the date of suspension of activities, payment goes to 2/3 of the average salary. In this case, the employer pays for the first three days at his own expense.

If the sick leave is covered by temporary downtime, then the payment goes as for a simple one, the sick leave is not paid.

If the beginning falls on the downtime, and its end is already outside this time, then sick leave is calculated from the day the downtime ends, and the first 3 days from the end of the downtime are paid from the organization's funds.

What Not to Do

Employees can sue.

Some employers, in order to save money, replace simple unpaid leave. This is a gross violation of the law.

Firstly, to send on such a vacation, a written application from the employee is required. Secondly, days without saving are given for personal reasons of the employee, and not for production needs. Therefore, the management, forcing their employees to write such statements, is at great risk of running into a labor inspectorate.

In this case, negligent bosses may run into a fine for non-payment of their hard-earned money to their subordinates, the chief accountant and manager will have to pay 10-20 thousand rubles out of their pocket, but the organization itself is threatened with recovery of up to 50 thousand. And if this mass practice, it can reach a criminal article.

Often suspending work, for example, in a workshop, the management directs employees to clean up the territory or put things in order in the archive, in general, plugs those holes where there are not enough hands. It's not always legal.

For such translations, the written consent of the person being translated is required, with the exception of emergency situations (catastrophe, accident, flood, fire, etc.), when the translation is associated with a threat to people's lives and is necessary to prevent it or eliminate its consequences.

Then, for a period of up to a month, an employee can be transferred without asking him. But even in this case, the new job is selected taking into account the state of health of the employee.

If the management respects its subordinates and does not want litigation, it should draw up documents correctly and pay all the money due to the employee. After all, the fact that I had to wander around without work is not the fault of the employee.

In this video, you will learn what employees are entitled to when the plant is idle.

Question form, write your

The best way to achieve economic efficiency from the work of a hired team - rhythmic and continuous work during the working day or shift. Interruptions and difficulties arise when the smooth flow of the process is interrupted for unforeseen good or not so good reasons. If the failure occurred due to the sluggishness or negligence of the authorities, then the employee must understand that this is regarded as forced downtime due to the fault of the employer.

What is simple

Everything related to working time and rest periods is set out in chapters 15-19 of the Labor Code of the Russian Federation. Unfortunately, there is no clear definition of downtime in any of them. Briefly about what a downtime is, and how to behave in the event of its occurrence, is mentioned in Art. 72.2 TC. A mean clarification, stating that this is a temporary suspension of production for various reasons, most often of an objective and insurmountable nature, does not make it possible to unambiguously attribute this period to either working time or rest time.

The amount of payment for downtime is highly dependent on the evidence of guilt for its occurrence. That is why almost all employers seek, if not to shift the responsibility on the employee, then at least to prove that nothing depended on the management. But arbitrage practice in this respect is inexorable. They attribute the economic, technical, and organizational reasons for a failure in production to the fault of the employer. Most often, only force majeure in the form of catastrophes, disasters or hostilities, the presence of which is confirmed by documents from the Chamber of Commerce and Industry, is recognized as circumstances beyond the control of the parties.

The lack of a full workload of production due to the economic crisis, the courts also blame the managing body of the company.

Indirectly, the code defines the form of responsibility of the director for downtime arising as a result of insufficiently active and conscientious performance of the manager's duties. So lets general meeting participants to bring a negligent leader into disciplinary responsibility, and even dismiss on this basis.

Registration

Deterioration of external economic factors, the destructive influence of the elements or technological failures, leading to the inability to continue working in the same mode, in themselves bring losses. In this case, the management will be able to reduce costs if it correctly issues the time of forced downtime due to the fault of the employer:

  • Upon receiving notification, in any form, of the conditions that have stopped work, a decision should be made as soon as possible to declare downtime.
  • Identify the guilty (employee, employer himself or force majeure);
  • Determine the terms, if this is not possible, then the suspension is declared indefinite;
  • Resolve the issue of the presence of workers affected by downtime at work;
  • Issue an order, it must list all the above details, and also, preferably, explain the form and amount of payment (it depends on the reasons and perpetrators);
  • Under the signature to acquaint with it the whole team or that part of it that was left without work.
  • Invite affected employees to transfer to vacant positions while maintaining the average salary for the entire period of downtime.
  • To transfer some employees to vacant positions, not lower than the previous qualification, without their consent, but for a period not exceeding a month, art. 72.2 TC.
  • Within three days, notify the employment service, paragraph 2 of Art. 25 of Law 1032-1 FZ. This must be done if the work was completely stopped by the entire enterprise, being late can cost a fine of up to 5,000 rubles, art. 19.7 of the Code of Administrative Offenses.
  • Make notes about idle time in the time sheet, form T-13. The accounting code is selected depending on the circumstances: the fault of the employer is indicated by the abbreviation RP or the numerical code 31.
  • If the inability to work does not apply to all employees, then this must be recorded in acts of arbitrary form, and then reflected in the time sheet.

The faster and more carefully the employer completes all the documents, the more money the company will save on wages. If the employees are not notified, and they are paid in a reduced amount, then contacting the labor inspectorate is the least that can threaten the enterprise. It is also illegal to require employees to perform their duties during downtime, even when they are at the workplace all day.

The greatest damage from downtime is caused to the enterprise, regardless of the employer's fault.

The employer does not want to issue a simple

The likelihood that management will refuse to take action to process downtime is very small. After all, it is the enterprise that suffers most from the suspension of production. Another issue is that dishonest bosses may try to convince employees to take unpaid leave during the economic hardship.

It happens that this policy is implemented by the hired head of the company, trying to hide the results of short-sighted decisions in the management of the enterprise. The team can protect itself by writing an appeal to the founders with a request to bring the head of the enterprise to disciplinary responsibility for allowing forced downtime due to the fault of the employer,. You can transfer it personally to the head of the meeting of participants or shareholders, or resort to the mediation of the trade union.

The arbitrariness of the authorities, with the inaction of the governing body commercial organization, can be suppressed by state bodies for supervision in the field of labor legislation: the labor inspectorate, the prosecutor's office and even the court. It is only necessary to remember that state structures will require proof that employees are at the workplace and cannot fully work due to the fault of the employer. Drawing up a collective complaint will help a lot in the matter of protecting one's own rights.

During downtime due to the fault of the employer, the employee has the right to count on 2/3 of the salary, at a minimum, Art. 157 TK .

How to write an application

When downtime occurs as a result of global causes (economic shocks, disasters, etc.), the authorities do not need additional notification. But there are situations when the management simply cannot find out about the troubles until the subordinates report to them. This must be done if the breakdown is of a local nature, an accident has occurred in a separate area, there are no raw materials or materials for work, the equipment or the entire production is de-energized. A notification will also be required if the downtime began due to the fault of the employee.

An application for forced downtime due to the fault of the employer does not have a legally established form, therefore it is drawn up arbitrarily. However, it is more correct, after all, to title such a document “Report”. Whatever name is chosen, inside you need to paint a few very important points:

  • in whose name the document is drawn up indicating the position, full name and name of the enterprise;
  • description of what happened;
  • time of the first stop of work;
  • causes and alleged perpetrators;
  • the mandatory presence of the employee's signature, as well as the date and hour of the transfer of the paper to the immediate superiors.

An example application can be found on our website ()

In fairness, it must be said that the Labor Code of the Russian Federation does not oblige employees to declare the start of downtime in writing. To draw up a paper, it is better to do it in duplicate, it will be more correct and calmer for the employee. The more relevant such actions are if the continuation of work is impossible, since it creates a danger to life and health. After all, Art. 214 of the Labor Code simply obliges all employees to report this to higher management.

The notification handed over to the authorities against signature will help the worker to further prove his innocence, as well as confirm the fact of timely appeal to the employer.

Continuation of work in conditions dangerous to the health of the employee himself or other members of the team, without reporting it to the authorities or after it, is illegal, art. 214 TK.

How is it paid

Certainty in the question of how the forced downtime is paid due to the fault of the employer is introduced by Art. 157 TK . The amount of payments and the fact of their implementation strongly depends on the circumstances:

The first two points, on a cursory examination, are very similar, but not at all the same. For those who receive a salary consisting solely of the tariff rate, it really does not matter whose fault the problem arose. Whatever preceded the start of downtime, the employees of the team will receive the same amount of payments.

Another issue is enterprises that regularly pay bonuses, allowances, additional payments based on the results of their work. In this case, the employer will be interested in convincing employees of their own innocence and the influence of force majeure circumstances. After all, this is what will allow you to pay two-thirds of the tariff rate, and it can be very small, compared with the final amount of accrual in the payroll.

The Labor Code establishes a unified approach to calculating the average salary in all cases that are mentioned in this document (Article 139 of the Labor Code). For example, a downtime arose in August 2017. The salary is 10,000 rubles, monthly bonus 50% of salary. For ease of calculation, we can assume that the amount of accruals has not changed over the previous 12 months, then the payment for 10 days of downtime will be:

(10,000 + 5,000) * 12/12 / 29.3 * 10 days * 2/3 \u003d 3412.97 rubles - payment for forced downtime due to the fault of the employer;

10,000/12/12/29.3*10 days*2/3 = 2275.31 rubles - the amount of payments if the suspension of work occurred for independent reasons.

As you can see, the temptation to save on payments for the employer is very great, so the management will insist in every possible way that it had no opportunity to influence the circumstances. If employees, against the background of financial losses, have reasonable doubts about the honesty of the employer, the Labor Inspectorate or the court will help to assess the seriousness of the reasons.

What does the employee do

Some workers tend to make it easy in the event of an unforeseen interruption in work. Whatever caused the downtime and no matter how long it lasts (half a day or six months), the employee is obliged to be on site every day, at the hours established by the employment contract. And although the code does not directly talk about this, it does not contribute these hours during the period of legal rest (Article 107 of the Labor Code). In this situation, one should conclude: what is not allowed is prohibited.

In fairness, it is worth saying that the employer may mention the obligation to be present at the work point in the order. There he has the right both to force him to stay in place, and to allow him to stay at home all this time. The fact that the order will not indicate the need to be present on the territory of the enterprise will not become a permission to skip work. In case of unauthorized leaving of the workplace or skipping days due to unreasonable conclusions, the employee should not be surprised that he will become a candidate for dismissal for absenteeism, art. 81 TK .

The need to be present at the production site during forced downtime due to the fault of the employer may be dictated by:

  • the likelihood of emergency situations, then the team on site will be able to quickly eliminate all Negative consequences or not allow them at all;
  • the possibility that the reasons for the downtime will suddenly disappear (for example, they will turn on the electricity supply), which means that the start time for the resumption of work cannot be predicted;
  • the employer is simply not inclined to pay employees the average for their absence from work.

All employees, even if they are unable to fulfill their labor functions, must remain on the territory of the enterprise or its structural subdivision, they will be able to leave the workplace only if such relief is fixed in the downtime order or collective agreement.

Dismissal during downtime: features, compensation

Forced downtime due to the fault of the employer, lasting for a rather long period, will invariably push team members to search for new work. If its results turn out to be positive, then the question will arise of how to properly part with the “old” employer. In this case, two options are most likely: own wish(Article 80 of the Labor Code) and agreement of the parties (Article 78 of the Labor Code).

Most often, the management of an enterprise that has fallen into difficult economic circumstances is sympathetic to the attempts of employees to change their place of employment. This is especially easy for an employer who does not expect the downtime to end soon or even foresees the possibility of liquidating the company. Then the parties sign an agreement on dismissal and draw up an employee in one day.

There are also cases when the authorities interfere and do not give a calculation without a notice period, Art. 80 TK. From a moral point of view, this act can be condemned, but the law is completely on the side of the employer. If the employee himself decided to leave, then he is obliged to notify about it 14 days in advance, the fact of downtime cannot shorten this period. A problem can arise if forced downtime due to the fault of the employer is declared for all employees, and an order for it allows employees not to come to work points. Then there will be a situation in which there is simply no one to apply. There are several ways to get out of the situation:

  • send a letter by mail to the legal address of the company and to all known addresses;
  • read your employment contract for the indication of the employer's e-mail address in it, and send an application to it;
  • find a way to meet with the manager or personnel representative in a non-productive setting and convince one of them to take the document.

In any case, the countdown of two weeks will begin only from the next day from the date of receipt of the letter by the employer or his representative. The State Labor Inspector will help to sober up the "presumptuous" leader, who is preventing legal dismissal. The leadership will definitely read his message and react.

Regardless of the grounds for dismissal, the list of payments in the calculation is the same:

  • Remaining salary.
  • Holiday compensation.
  • Debt on overspending of accountable amounts.
  • Other compensation amounts, if the collective agreement provides for them.

Downtime is the most unpleasant event for both the employee and the employer. After all, even when production is stopped, the latter is forced to bear financial losses, in particular, to pay 2/3 of the salary to the team. Mutual understanding and the desire to return to the working rhythm as soon as possible will help shorten the difficult period and reduce its negative impact on labor Relations. And the main positive effect will be exerted by the application to the resumption of work of the maximum efforts of both parties.

Lawyer of the Board of Legal Protection. Specializes in handling cases related to labor disputes. Defense in court, preparation of claims and other normative documents to regulatory authorities.

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