The theory of everything. Theory of the whole Labor Code, part three of article 157

The text of article 157 of the Labor Code of the Russian Federation in the new edition.

Downtime (article 72.2 of this Code) through the fault of the employer is paid in the amount of at least two-thirds of the employee's average wage.
Downtime for reasons beyond the control of the employer and the 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.

The employee is obliged to inform his immediate supervisor, another representative of the employer, about the beginning of downtime caused by equipment breakdown and other reasons that make it impossible for the employee to continue performing his labor function.

If creative workers of the media, cinematographic organizations, television and video filming collectives, theaters, theater and concert organizations, circuses and other persons participating in the creation and (or) performance (exhibiting) of works, in accordance with the lists of works, professions, positions of these workers, approved by the Government of the Russian Federation, taking into account the opinion of the Russian Trilateral Commission for the Regulation of Social and Labor Relations, do not participate in the creation and (or) performance (exhibit) of works for any time or do not act, then the indicated downtime is not and can be paid in the amount and in the manner that are established by the collective agreement, local regulatory act, labor contract.

N 197-FZ, Labor Code of the Russian Federation, current edition.

Commentary on Art. 157 of the Labor Code of the Russian Federation

Comments on the articles of the Labor Code will help to understand the nuances of labor law.

A fundamentally important change in the content of Art. 157 is, in our opinion, the right to payment of downtime through the fault of the employer in the amount of at least 2/3 of the average wage of an employee, regardless of whether he warned the employer in writing about the start of downtime or not. At the same time, the legislator, while retaining the employee's obligation to inform the immediate supervisor or another representative of the employer about the start of downtime caused by equipment breakdown and other reasons that make it impossible to continue work, does not provide for the legal consequences of the employee's failure to fulfill this obligation.

§ 2. Failure by the employee to fulfill his labor duties through the fault of the employer in the event of downtime must be distinguished from the employer's illegal deprivation of the opportunity to work, for example, in case of illegal dismissal, transfer to another job, which entails the employer's obligation to compensate the employee for material damage (see commentary to Art. 234 TC).

§ 3. Downtime for reasons beyond the control of the employer and the employee is paid in the amount of at least 2/3 of the tariff rate (salary). The reasons for downtime, not related to the fault of the employee or employer, can be very different. For example, this is a strike by a labor collective, a trade union organization or an association of trade unions. Employees who did not participate in the strike, but in connection with it did not have the opportunity to perform their work, are paid for downtime in the manner and in the amount provided for by this Code (see commentary to Article 414 of the Labor Code). However, a collective agreement, agreement or agreements reached in the course of resolving a collective labor dispute may provide for a more preferential procedure for payments to employees who do not take part in a strike than the one established by the Code.

Despite the fact that in Art. 414 of the Labor Code enshrines the general provision on the payment of downtime for workers who do not take part in the strike; this norm does not contain an unequivocal answer to this question. Downtime payment rules depend on reasons related to the fault of one of the parties to the employment contract or not related to it.

The fault of the workers in this case is absent. As for the employer's guilt, if the strike is declared illegal, it is also absent. If the strike is found to be legal, then there is every reason to believe that the employer is guilty of such a simple matter. Consequently, in this case, he must pay the downtime in the amount of at least 2/3 of the employee's average earnings.

§ 4. Article 157 provides for a lower limit on the average earnings or the rate for payment of downtime. In this case, the actual earnings of the employee are directly related to the duration of the downtime. If it lasts several hours, but less than a full working day, then for each hour of downtime, the employee is entitled to payment at the rate of at least 2/3 of the average hourly earnings or the hourly wage rate for the category assigned to him. Obviously, a simple, full-time job must be paid in the amount of at least 2/3 of the average daily earnings or the daily wage rate for the employee's assigned category. The amount of additional payment for downtime through no fault of the employee who warned the employer about its start may be higher if it is provided for in the collective agreement or in the employment contract with the employee.

§ 5. Forced suspension of the work of an organization or its individual structural divisions due to a difficult financial situation, a shortage of raw materials, component products and other reasons beyond the control of employees, entails the termination of work, i.e. downtime of the entire workforce or part of it.

How is the issue of payment resolved in this case? The decree of the Council of Ministers - the Government of the Russian Federation "On the organization of work to promote employment in conditions of mass layoff" of February 5, 1993 stipulates that in case of a short-term decrease in production volumes, it is allowed to provide workers with unpaid leave. This provision is addressed to the employer. However, this does not mean at all that the employee who is offered such leave is obliged to use it. This Code, like the Labor Code of the Russian Federation, does not contain a rule obliging employees to be on forced leave without pay during the period of downtime. Consequently, if the employee does not consent to such leave and the employer continues to have an employment relationship with him, despite the fact that he cannot provide him with work, the idle time through no fault of the employee must be paid in an amount not lower than that provided for in Art. 157. It is interesting in this connection that the decision of the Gagarinsky District People's Court of Moscow to satisfy the claim of worker A. against the administration of the production technical and design center "Cobra" preservation of wages, paid according to the rates provided for by Part 1 of Art. 94 of the Labor Code of the Russian Federation (RG. 1994. Apr. 26).

In connection with numerous inquiries about the legality of sending employees on forced leaves without pay at the initiative of the employer, the Ministry of Labor of the Russian Federation explained that unpaid leave can be granted only at the request of the employee for family reasons and other valid reasons. If employees, through no fault of their own, cannot fulfill the obligations stipulated by labor contracts, the employer is obliged to pay downtime in the amount of at least 2/3 of the tariff rate (salary). If the employer does not pay for downtime through the fault of the employees, the employees have the right to appeal against his actions in the CCC or in court (see Explanation of the Ministry of Labor of the Russian Federation of June 27, 1996 No. 6 // Bulletin of Normative Acts. 1996. No. 1).

For the period of forced leave granted to the employee with his consent without pay, compensation payments are provided in an amount not lower than the minimum wage (see the Regulation on the procedure and conditions for granting compensation payments to employees who are on forced leave without pay due to forced temporary suspension of the organization, approved by the Order of the Federal Employment Service of March 6, 1995 // Bulletin of Normative Acts. 1995. N 6).

§ 6. Downtime due to the fault of the employee is not paid. In this case, we are talking about unlawful, guilty behavior that has the composition of a disciplinary offense, for which the employee may be subject to disciplinary measures or other measures of influence provided for by local acts (provisions on bonus payments, on remuneration based on the results of annual work, etc.) ...

The practice of applying the Labor Code of the Russian Federation, obviously, should be taken into account after the adoption of the Labor Code, but taking into account the new rules for payment of downtime not related to the fault of the employee. As for the guilt of the employer in a short-term decrease in production volumes, it should be clarified in each specific case by the bodies exercising supervision and control over the observance of labor legislation or considering labor disputes.

The next comment on article 157 of the Labor Code of the Russian Federation

If you have questions about art. 157 TC, you can get legal advice.

1. Downtime should be understood as a temporary suspension of work for reasons of an economic, technological, technical or organizational nature (see Art. 72.2 of the Labor Code and the commentary to it). Downtime can affect both one employee, a group of employees, and all employees of a structural unit or organization.

2. The employee must inform the employer about the beginning of downtime caused by equipment breakdown and other detailed reasons that make it impossible to perform work. The communication can be made both orally and in writing. The employee's obligation is deemed to have been fulfilled at the moment when he informed his immediate supervisor or another representative of the employer about it.

Failure by an employee to fulfill this obligation is a violation of labor discipline and entails disciplinary liability. If, as a result of the culpable failure of the employee to notify the employer about the beginning of the downtime, the latter has suffered property damage, the employee may also be held liable. In addition, in this case, the employee is deprived of payment for downtime.

3. Payment for downtime depends on the fault of the downtime.

The employer is obliged to provide employees with work stipulated by the employment contract, to provide them with equipment, tools, technical documentation and other means necessary for them to perform their job duties. Downtime resulting from the employer's failure to fulfill this obligation is downtime due to the fault of the employer.

In case of downtime due to the fault of the employer, the employee is paid at least 2/3 of the average salary for the entire period of downtime.

Payment is made on the basis of the employee's average wage - average hourly with a downtime of less than one working day and an average daily with a downtime of a working day or more. For the procedure for calculating average earnings to pay for downtime, see Art. 139 TC and commentary to it.

A particular case of downtime due to the fault of the employer is the period during which the employee, as a form of self-defense, refuses to perform work that directly threatens his life and health (see Art. 379 of the Labor Code and the commentary to it). Since the obligation to ensure occupational safety and conditions that meet the requirements of occupational safety and health is vested in the employer (see paragraph 3 of part 2 of article 22 of the Labor Code) and the employer's failure to fulfill this obligation is the employer's fault in the occurrence of downtime, the employee in this case has the right to be paid for the specified period in the amount of at least 2/3 of the average salary.

4. In case of downtime for reasons beyond the control of the employer and the employee, downtime is paid in the amount of at least 2/3 of the employee's tariff rate (salary).

The reasons beyond the control of the employer and the employee include unforeseen circumstances (accidents, natural disasters, etc.), as well as other unrecoverable circumstances.

Should not be considered as circumstances beyond the control of the employer and the employee, non-fulfillment of contractual obligations by the employer's counterparty under a business contract, lack of raw materials, difficult financial situation of the employer, since this belongs to the category of entrepreneurial risk for which the employer is responsible. Such circumstances should be considered as the fault of the employer.

A particular case of downtime through no fault of the employee is a strike. An employee who did not participate in the strike, but due to it was not able to perform his work, is paid as if it was idle through no fault of the employee. However, there is no fault of the employer in this case either, so payment should be made on the basis of Part 2 of the commented article in the amount of at least 2/3 of the tariff rate (salary).

5. In case of downtime due to the fault of the employee, downtime is not paid. The fault of an employee in the occurrence of his downtime can be expressed in his failure to fulfill his obligations to ensure the serviceability of tools and equipment, to ensure a stock of raw materials and materials, if such obligations are imposed on him by an employment contract.

The employee's fault in the occurrence of downtime may also be expressed in the failure to notify the employer about the circumstances that may lead to downtime, if these circumstances were known to the employee and he could assess them.

6. It is necessary to distinguish between idle time through no fault of the employee and non-fulfillment of labor standards, non-fulfillment of labor duties, since in these cases different guarantees are provided for payment of this period. The main difference is that during downtime there is always a temporary suspension of work for reasons of economic, technological, technical or organizational nature, the employer does not provide the employee with the amount of work that he must provide in accordance with the terms of the employment contract; in case of non-fulfillment of labor standards, work was provided, but the conditions for its fulfillment were not provided (see, for example, the Cassation ruling of the Saratov Regional Court of October 13, 2011 in case No. 33-5510; Appeal ruling of the Vologda Regional Court of May 21, 2013 on case No. 33-2173 / 2013).

7. A special rule of part 5 of the commented article concerns creative workers. In the event that they do not participate in the creation, performance, exhibition of works or do not act, there is no reason to classify these circumstances as downtime. The procedure for paying for this time may be provided for by a collective agreement, local regulations or an employment contract.

There are situations when things at the enterprise are not going as well as we would like, and it is necessary to temporarily suspend work. What to do with the workers in this case? Declare simple! So that the introduction of downtime does not turn into litigation, it is necessary to correctly draw up all the documents. Let's study what mistakes employers make in such situations.

It is no secret that the norms of the Labor Code of the Russian Federation on the simple are few. According to Art. 72.2 of the Labor Code of the Russian Federation idle is a temporary suspension of work for reasons of an economic, technological, technical or organizational nature. By virtue of Art. 22, 56 of the Labor Code of the Russian Federation, the employer is obliged to provide employees with work stipulated by the employment contract. If this obligation is not fulfilled, the legislator makes the employer responsible in the form of payment for downtime.

According to Art. 157 of the Labor Code of the Russian Federation, downtime due to the fault of the employer is paid in the amount of at least 2/3 of the employee's average wage. Downtime for reasons beyond the control of the employer and the employee is paid in the amount of at least 2/3 of the tariff rate, salary (official salary), calculated in proportion to the downtime. Downtime due to the fault of the employee is not paid.

With a rather "modest" legal regulation of downtime, personnel services are forced to turn to court practice in order to avoid mistakes when registering downtime and to protect the employer from litigation. Consider what mistakes employers most often make when declaring downtime.

1. Incorrectly defined type of downtime

The Labor Code of the Russian Federation distinguishes three types of downtime: due to the fault of the employer, for reasons beyond the control of the employer and the employee, due to the fault of the employee. Depending on the type of downtime, the Labor Code of the Russian Federation provides for different amounts of downtime payment. In practice, it is not easy to establish whether it is the employer's fault or whether the downtime has arisen for reasons beyond the control of either party to the employment contract. In case of an incorrect determination of the type of downtime and the amount of payment, the employer will be forced, according to the court decision, not only to make additional payments, but also to compensate for moral damage, and if the employee contacts the labor inspectorate, he will also pay a fine.

For your information. There is no exhaustive list of reasons for downtime in the Labor Code of the Russian Federation. It can be:

- liquidation, amalgamation or division of structural divisions of the company (organizational reasons);

- the introduction of new or change in existing methods of production (technological reasons);

- breakdown, replacement or modernization of production equipment (technical reasons);

- financial crisis, difficult financial situation of the company, violation of contractual obligations by counterparties (economic reasons).

The main criterion for downtime due to the fault of the employer is that it is caused by the wrongful actions or inaction of the employer - both deliberate and due to inept management, failure to take into account the entrepreneurial risk. Moreover, the obligation to prove the existence of these circumstances lies with the employer (clause 17 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application of the Labor Code of the Russian Federation by the courts of the Russian Federation").

Often employers refer to the introduction of downtime due to the deteriorating economic situation in the organization, believing that the reason did not depend on any of the parties to the employment contract. However, this opinion is erroneous. Judicial practice does not support him.

Arbitrage practice. The Vladimir Regional Court in the appeal ruling of 10/31/2013 in case N 33-3566 / 2013 noted that the negative financial position of the company (lack of orders) is a financial (commercial) risk in relations between business entities, therefore, refers to the direct fault of the employer.

Arbitrage practice. The Tula Regional Court in its cassation ruling dated November 10, 2011 in case N 33-3848 noted that the decrease in demand for manufactured products, the purchase of raw materials at inflated prices, and a decrease in production volumes are the fault of the employer.

Then the question arises: what will relate to the reasons that do not depend on the will of the parties? Let us refer to judicial practice and explanations of officials. According to them, this:

- issuance of orders by state bodies (ruling of the Moscow City Court of 15.07.2010 in case No. 4g / 2-5685 / 10);

- extreme weather conditions (see, for example, the recommendations of the Ministry of Health and Social Development on the organization of work and rest regimes in conditions of extreme temperatures and smoke from 06.08.2010);

- breakdown of the machine of the employee who uses it, but is not to blame for its breakdown. For the employee who broke the machine, the reason for the downtime will be his guilty actions (Rostrud letter of 12.05.2011 N 1276-6-1).

2. There are no documents confirming the need for downtime

The personnel department must collect a package of necessary documents, which will confirm the legality of the introduction of downtime.

Arbitrage practice. The Moscow Regional Court, in its ruling of 11/01/2011 in case No. 33-24455, emphasized that when deciding on the establishment of downtime, the employer must bear in mind that there must be commercial, accounting and other documents confirming the need to declare the downtime. Otherwise, the court may find it unreasonable.

3. Downtime is not documented

Labor legislation does not contain mandatory requirements for the content of simple documentation. Therefore, the employer decides for himself how best to do it. In any case, a simple order must be issued. By the way, the accounting department will need it to record expenses for profit tax purposes.

Arbitrage practice. Since the amount of payment for downtime depends on the reason for its occurrence, each case of downtime must be documented, with the establishment of its cause (determination of the Supreme Court of the Republic of Sakha (Yakutia) of 03.02.2014 in case N 33-321 / 2014, appeal determination of the Kemerovo Regional court from 30.01.2014 in case N 33-73-2014).

Based on judicial practice, the order should reflect:

- dates of the start and end of the downtime. A specific end date may not be indicated if at the time of the issuance of the order it is impossible to determine the duration of the downtime (labor legislation does not establish a deadline for its introduction);

- the reason for the downtime. The nature of the reason should be indicated here: economic, technological, technical or organizational; describe the specific circumstances that led to the downtime;

- due to whose fault the downtime occurred (employer, employee, or for reasons beyond the control of the parties);

- positions (professions), full name employees or the names of structural divisions of the organization, in respect of which a downtime is declared;

- the need to be present at workplaces of workers in respect of whom a downtime or permission not to go to work is declared (indicating specific full names, positions (professions), structural divisions or the organization as a whole).

Labor legislation also does not impose requirements for the documents that are the basis for the order. Depending on the workflow in the organization, these can be:

- official (memo) note of the head of the structural unit, whose competence includes the organization or control of the relevant work;

- downtime registration sheet. Its form is not legally established. Usually, the date and time of the beginning and end of the downtime, name and surname are entered in it. and the position (profession) of employees and the reasons for the downtime;

- the act of simple, which is drawn up by the heads of the idle structural divisions; it reflects the reasons and duration of downtime, positions (professions) of employees, etc.

By the way, it should be borne in mind that if, in fact, there was a downtime, but the employer, in violation of the law, did not issue an order to declare it and did not pay for the downtime accordingly, then this will not prevent the court from ruling in favor of the employee.

Arbitrage practice. The division of the organization did not function due to a shortage of components, and SMS messages were sent to workers, as well as calls were made to cell phones that they did not need to go to work. The Lipetsk Regional Court, in the appeal ruling of 10/02/2013 in case N 33-2607 / 2013, agreed with the state labor inspectorate, which issued an order obliging the employer to recognize the working hours indicated in the messages as downtime and pay employees the downtime payment.

4. The downtime order does not indicate whether employees should be present at workplaces

The Labor Code of the Russian Federation does not contain a requirement for the mandatory presence of workers at workplaces during downtime. But since the downtime period refers to working time (part 1 of article 91 of the Labor Code of the Russian Federation), and not to the time of rest (article 107 of the Labor Code of the Russian Federation), workers cannot use it at their discretion and leave their jobs. Their absence from work without the permission of the employer can be regarded as absenteeism. However, in the idle time order, employees may be allowed not to go to work. In order to avoid disputes, the order must clearly state whether employees are required to be present at the workplace or not.

Arbitrage practice. The Orenburg Regional Court in the appeal ruling of 06/27/2013 in case N 33-3812 / 2013 confirmed the legality of the dismissal under p. "a" clause 6, part 1 of Art. 81 of the Labor Code of the Russian Federation due to the absence of an employee at the workplace during the idle period.

5. The downtime order was issued by an unauthorized person

An order declaring downtime must be signed by the appropriate person (the head of the organization or another authorized person). If an order is issued by an unauthorized person, the announcement of downtime may be declared illegal.

Arbitrage practice. As the Khabarovsk Regional Court emphasized in the appeal ruling of 20.07.2012 in case N 33-4009 / 2012, the director of the organization is not authorized to issue a simple order after the introduction of bankruptcy management. In a similar situation, this can only be done by the liquidator.

6. Employees were not familiar with the order to establish downtime

Employees for whom a downtime has been declared must be familiar with the downtime order. In case of refusal to get acquainted, an act is drawn up, which is signed by the commission.

7. The employment service was not notified of the downtime associated with the suspension of production

The employer is obliged to notify the employment service of the idle time if it is connected with the suspension of production. At the same time, as Rostrud explained in a letter dated 19.03.2012 N 395-6-1, we are talking about the suspension of production as a whole, and not of individual divisions or equipment. This must be done within three working days after the decision is made to suspend production (announcement of downtime) (paragraph 2 of article 25 of the Law of the Russian Federation of 19.04.1991 N 1032-1 "On employment in the Russian Federation"). Since the unified form of the message has not been approved, it can be written in free form.

8. An employee who was declared idle was transferred to another job without his consent

Some employers, referring to Part 3 of Art. 72.2 of the Labor Code of the Russian Federation, they practice the transfer of an employee who has been declared idle to another job without his consent. It should be remembered that such a translation is allowed only if the downtime is caused by the extraordinary circumstances listed in Part 2 of Art. 72.2 of the Labor Code of the Russian Federation.

Arbitrage practice. As indicated by the Moscow City Court in the appeal ruling of 06.06.2012 in case N 11-9038, from the analysis of the norms of Art. 72.2 of the Labor Code of the Russian Federation it follows that the transfer of an employee to another position is allowed if the downtime is caused by a natural or man-made disaster, industrial accident, industrial accident, fire, flood, hunger, earthquake, epidemic or epizootic and in any exceptional cases that endanger life or normal living conditions of the entire population or its part. Since the court did not establish such circumstances, the transfer of the employee was declared illegal.

9. The time sheet for the idle period is not completed or executed incorrectly

According to Art. 91 of the Labor Code of the Russian Federation working hours - the time during which an employee, in accordance with the internal labor regulations and the terms of the employment contract, must perform labor duties, as well as other periods of time that are in accordance with the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation refer to working hours. The employer is obliged to keep records of the time actually worked by each employee.

Based on orders, service memos, acts or downtime sheets, a time sheet is filled out. You can use the unified forms N T-12 or N T-13, approved by the decree of the State Statistics Committee of Russia dated 05.01.2004 N 1, which for this should be approved by an order on the organization. In the corresponding columns, you must indicate the alphabetic or numeric code of the downtime (through the fault of the employer - "RP" or "31", as well as the duration of unworked time (in hours, minutes)).

Arbitrage practice. Failure to reflect the downtime or its type in the time sheet entails the illegality of the downtime announcement (appeal ruling of the Supreme Court of the Republic of Sakha (Yakutia) dated 03.02.2014 in case N 33-321 / 2014).

Incorrect indication of the type of downtime (due to the fault of the employer or for reasons beyond the control of the employer) in the time sheet and the corresponding incorrect payment of downtime in the event of a dispute entails additional accrual of wages to the employee by the court for the downtime (cassation ruling of the Tula Regional Court dated 10.11.2011 in case no. 33-3848).

10. Mistakes were made when paying for downtime

Downtime caused by the employer's fault is paid in the amount of at least 2/3 of the employee's average wage (part 1 of article 157 of the Labor Code of the Russian Federation).

According to Art. 139 of the Labor Code of the Russian Federation for all cases of determining the size of the average wage (average earnings), a single procedure for its calculation is established. To calculate the average wage, all types of payments provided by the wage system applied by the respective employer are taken into account, regardless of the source of these payments. In any mode of work, the average wage of an employee is calculated on the basis of the actually accrued wages and hours actually worked by him for 12 calendar months preceding the period during which the employee retains the average wage. In this case, a calendar month is considered to be the period from the 1st to the 30th (31st) day of the corresponding month inclusive (in February - to the 28th (29th) day inclusive).

Arbitrage practice. The Moscow Regional Court in its ruling of 31.01.2012 in case No. 33-2350 drew attention to the fact that when determining the size of the average daily wage, the total amount of payments is not divided by the number 29.4, since it is the average monthly number of calendar days and is applied exclusively for determining the average daily earnings for paying for vacations and paying compensation for unused vacations.

If the employer incorrectly determined the type of downtime (for example, indicated downtime for reasons beyond the control of the employer and the employee, while in fact the downtime took place through the fault of the employer), then the court will correct it by adding additional payment for downtime (appeal ruling of the Vladimir Regional Court of 31.10 .2013 in case N 33-3566 / 2013). That is why it is so important to define the type of downtime correctly.

By the way, payments to employees for downtime are not compensatory from the point of view of the terminology of the Labor Code of the Russian Federation (Article 164) and are subject to personal income tax on the basis of clause 1 of Art. 210, art. 217 of the Tax Code of the Russian Federation.

11. The employee is forcibly sent on leave without pay for the period of downtime

From Art. 128 of the Labor Code of the Russian Federation, it follows that unpaid leave is divided into those that the employer can provide to the employee, and those that he is obliged to provide. But both in the first and in the second cases, the basis for granting such leave is the employee's initiative and his voluntary expression of will. The possibility of sending an employee on unpaid leave at the initiative of the employer, although on the basis of the employee's application, is not provided for by labor legislation due to the circumstances that are associated with the activities of the employing company.

On June 27, 1996, the Ministry of Labor of the Russian Federation gave clarification No. 6 "On unpaid leave at the initiative of the employer," in which it indicated that such leaves could be granted only at the request of employees for family reasons and other valid reasons. "Forced" unpaid leave at the initiative of the employer is not provided for by the labor legislation.

12. The employee is paid for downtime if he falls ill during this period

The question of whether it is worth paying for downtime if an employee is sick has led to numerous controversies until recently. Specialists of the FSS of Russia believed that the benefit should not be accrued if the employee fell ill during the idle period (letter of 03/22/2010 N 02-03-13 / 08-2497). However, the courts were of a different opinion.

Arbitrage practice. The Presidium of the Supreme Arbitration Court of the Russian Federation in its resolution of 05/18/2010 N 17762/09 indicated that the legislation in force at that time did not establish the dependence of the payment of benefits on when the employee fell ill (before or after the downtime).

Interestingly, the courts' point of view was not supported by legislators. From 01.01.2011, the Federal Law of 29.12.2006 N 255-FZ "On compulsory social insurance in case of temporary incapacity for work in connection with motherhood" (hereinafter - Law N 255-FZ) has been amended. According to the new edition of Part 7 of Art. 7 of Law N 255-FZ, a leaf of temporary incapacity for work is paid only if the employee's illness occurred before the organization was declared idle.

Arbitrage practice. In the ruling of the Constitutional Court of the Russian Federation of January 17, 2012 N 8-O-O "At the request of the Levoberezhny District Court of the city of Lipetsk about checking the constitutionality of paragraph 5 of part 1 of Article 9 of the Federal Law" On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Motherhood " : clause 5 of part 1 of article 9 of Law N 255-FZ, which excludes the appointment to the insured person during the downtime of benefits for temporary disability that occurred during the downtime, is due to the purpose of this type of insurance coverage and in systemic connection with article 157 of the Labor Code of the Russian Federation cannot be considered as violating the constitutional rights of citizens.

13. Downtime was announced simultaneously with the reduction without taking into account objective reasons

In accordance with Part 2 of Art. 180 of the Labor Code of the Russian Federation, upon termination of an employment contract due to a reduction in the number or staff, the employer is obliged to notify employees in writing under a personal signature at least two months before dismissal. At the same time, from the day of the notice of dismissal until the day of termination of the employment contract, the essence of the employment relationship between the employee and the employer does not change. The employer is obliged to provide the employee with work according to the specified labor function, pay wages on time and in full, etc.

Simple in the sense of Art. 72.2 of the Labor Code of the Russian Federation is a temporary measure in connection with the onset of certain circumstances that do not entail a decrease in the number of employees and termination of the employment contract. As we have repeatedly stated, the employer must have objective circumstances (economic, technological, technical or organizational) to issue an order for downtime in the organization (individual divisions of the organization).

Thus, the implementation of measures to reduce the number or staff of employees of the organization and their notification of the upcoming

Layoffs do not constitute downtime in the sense in which this term

Used in part 3 of Art. 72.2 of the Labor Code of the Russian Federation. If there are objective circumstances that caused the downtime, and the employer issued a corresponding downtime order, then employees who were warned of dismissal due to reduction in number or staff may also be downtime (clause 2, part 1 of article 81 of the Labor Code of the Russian Federation).

When a dispute arises, the courts assess the circumstances that led to the downtime and find out whether it was caused by the temporary suspension of work.

Arbitrage practice. The Kemerovo Regional Court, in the appeal ruling of January 30, 2014 in case No. 33-73-2014, confirmed the legality of the announcement of downtime during the period of notification of the reduction of staff, and indicated that the plaintiff was sent to the downtime not because his position was subject to reduction, but by virtue of reasons of an economic nature, about which the employer issued the appropriate orders.

Arbitrage practice. In turn, the Murmansk Regional Court in the appeal ruling of 03/05/2014 N 33-377-2014 pointed to the illegality of the downtime announcement, since the publication of the downtime order against the plaintiffs was not caused by the temporary suspension of work. The absence of work for the plaintiffs was of a permanent nature, without at the same time showing signs of its temporary suspension.

14. An order for the end of the downtime has not been issued (if there is no date for the end of the downtime in the order)

If the order to declare downtime indicated a specific date for its end (for example, "declare downtime from 08/07/2014 to 08/18/2014"), then this order is terminated automatically. If the order on the announcement of downtime was issued with an open date (i.e., at the time of its publication it was impossible to determine the duration of the downtime), then the employer must issue an order on the end of the downtime, in which it is indicated:

- the date from which the work resumes;

- positions (professions), full name employees (employee) or the names of structural divisions (divisions) of the organization that start work after downtime.

It is imperative to familiarize the employees of the relevant departments with the order under a personal signature. This will help avoid controversial situations when employees did not show up for work and claim that the employer did not notify them about the end of the downtime.

Of this Code), through the fault of the employer, is paid in the amount of at least two-thirds of the employee's average wage.

Downtime for reasons beyond the control of the employer and the 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.

The provisions of article 157 of the Labor Code of the Russian Federation are used in the following articles:

Limitation of deductions from wages
for the return of amounts overpaid to the employee due to counting errors, as well as amounts overpaid to the employee, if the body for consideration of individual labor disputes recognizes the employee's guilt in failure to comply with labor standards (part three of Article 155 of the Labor Code of the Russian Federation) or simple (part three of Article 157 of the Labor Code RF);
Features of labor regulation of certain categories of employees of credit institutions
In case of revocation (cancellation) of the license for banking operations of the employer - credit institution, the downtime of employees is paid in accordance with Part 2 of Article 157 of the Labor Code of the Russian Federation.
Regulation of labor of creative workers of the media, cinematography organizations, television and video filming collectives, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (display) of works
Features of labor regulation of creative workers of the media, cinematographic organizations, television and video production teams, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibiting) of works, in particular, the specifics of regulation of working hours and rest time (including breaks of a technological and (or) organizational nature, the duration of daily work (shift), night work, weekends and non-working holidays), wages, in accordance with Article 252 of the Labor Code of the Russian Federation are established by labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations, and in the cases provided for in Articles 94, 96, 113, 153, 157 and 268 of the Labor Code of the Russian Federation, also labor contracts.

1. Downtime is a temporary suspension of work for reasons of an economic, technological, technical or organizational nature (see the commentary to Art. 72.2).

According to part 5 of article 157 of the Labor Code of the Russian Federation, it is not idle time that creative workers and professional athletes do not have performances, performances, concerts, etc. at any time (not limited by the maximum period), since the performance of their labor duties is not only related to creation and performance of works, but also with preparation for such activities. The period of work that is not associated with an active creative process can be paid in accordance with the established working hours in the amount and procedure that are determined by the collective agreement, local regulatory act, labor contract.

Usually, a wage rate (salary) is set for creative workers, which is paid regardless of the intensity of performing, concert and other creative and sports activities. Participation in performances, performances, concerts, radio and television broadcasts, the creation of works of art is paid according to specially established standards.

2. Downtime is paid depending on the presence (absence) of the fault of the employee or employer.

3. Payment for downtime is not associated with the presence of a written warning to the employee about the beginning of downtime. The introduction of such a change is due to the fact that downtime is not always caused by reasons that the employee is aware of. The suspension of work may affect all employees of a given employer (employees of a structural unit, several structural units) and be caused by an accident, natural disaster, power outages, lack of raw materials and materials, etc. In this case, there is no need for an employee to declare a downtime: the employer (organization management) is better informed about the reasons and duration of downtime. However, when downtime is caused by equipment breakdown, defective safety equipment, lack of auxiliary machinery or tools at a particular workplace, the employee should inform his immediate supervisor about this. The same rule applies in the event of a strike, in connection with which an employee who does not participate in it is not able to fulfill his labor duties (Article 414 of the Labor Code).

Applying article 157 of the Labor Code of the Russian Federation, it should be borne in mind that if the head for some reason is absent from the organization, it is necessary to inform the superior head or the head of the structural unit for personnel management about the beginning of the downtime.

The form of the message (notification) about the beginning of downtime is not defined, therefore, presumably, the employee can warn the management of the company (the employer is an individual) and orally.

5. A particular case of downtime is the failure to perform labor duties due to the failure to provide the employee with personal and collective protective equipment (Article 220 of the Labor Code).

Commentary on Article 157

2. The employee must inform the employer about the beginning of downtime caused by equipment breakdown and other similar reasons that make it impossible to perform work. The communication can be made both orally and in writing. The employee's obligation is deemed to have been fulfilled at the moment when he informed his immediate supervisor or another representative of the employer about it.

Failure by an employee to fulfill this obligation is a violation of labor discipline and entails disciplinary liability. If, as a result of the failure of the employee to inform the employer about the beginning of the downtime, the latter has suffered property damage, the employee may also be held liable. In addition, in this case, the employee is deprived of payment for downtime.

3. Payment for downtime depends on the fault of the downtime.

4. In case of downtime due to the fault of the employer, the employee is paid at least two-thirds of the average salary for the entire period of downtime.

5. A particular case of downtime due to the fault of the employer is the period during which the employee, as a form of self-defense, refuses to perform work that directly threatens his life and health (see Art. 379 of the Labor Code and the commentary to it). Since the obligation to ensure occupational safety and conditions that meet the requirements of occupational safety and health is vested in the employer (see paragraph 3 of part 2 of article 22 of the Labor Code) and the employer's failure to fulfill this obligation is the employer's fault in the occurrence of downtime, the employee in this case has the right to be paid for the specified period in the amount of at least two-thirds of the average salary.

6. For the same reasons, downtime due to the employer's fault should also include downtime arising from the suspension of work dangerous to the life and health of employees in connection with the decision of the authorized bodies. Payment for the specified period must also be made in the amount of at least two-thirds of the average earnings.

7. In case of downtime for reasons beyond the control of the employer and the employee, downtime is paid in the amount of at least two-thirds of the employee's tariff rate (salary).

The reasons beyond the control of the employer and the employee include unforeseen circumstances (accidents, natural disasters, etc.), as well as other irreparable circumstances.

8. A particular case of downtime through no fault of the employee is a strike. An employee who does not take part in a strike, but due to it did not have the opportunity to do his job, is paid as if it was idle through no fault of the employee. However, the employer is also not guilty in this case, and therefore payment should be made on the basis of Part 2 of Art. 157 TC in the amount of at least two-thirds of the tariff rate (salary).

9. In case of downtime due to the fault of the employee, downtime is not paid. The fault of an employee in the occurrence of his downtime can be expressed in his failure to fulfill his obligations to ensure the serviceability of tools and equipment, to ensure a stock of raw materials and materials, if such obligations are imposed on him by an employment contract.

The employee's fault in the occurrence of downtime can also be expressed in the failure to notify the employer about the circumstances that could lead to downtime, if these circumstances were known to the employee and he could assess them.

10. A special rule of Part 5 of Art. 157 applies to artists. In the event that they do not participate in the creation, performance, exhibition of works or do not act, there is no reason to classify these circumstances as downtime. The procedure for paying for this time may be provided for by a collective agreement, local regulations or an employment contract.