We solve rotational problems. Is it possible to work overtime on a watch

Dear Sergey Viktorovich!
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Answer to the question:

Labor legislation stipulates that after the time of production of work during the shift period, the employee is given days between shifts(Article 301 Labor Code RF). However, the legislation does not provide for a specific procedure for calculating the minimum number of days of inter-shift rest.

Don't Miss: Featured Article of the Month by an Expert Practitioner

How to organize work on a rotational basis: a ready-made algorithm + an ideal shift regulation.

In judicial practice, the following formula is used to calculate the days of inter-shift rest (see the Appellate ruling of the Nizhny Novgorod Regional Court of 10.07.2012 in case No. 33-5030 at the end of the answer):

For example, suppose an employee's shift lasted from December 1 to December 15, 2013, and the shift was 11 hours. During this time, the employee worked 165 hours. With a 40-hour work week, the worker would have worked 80 hours.

Let us calculate the number of days of inter-shift rest:

(165 - 80) / 8 = 10.63 days.

Thus, 10.63 days is the minimum number of days of inter-shift rest that the employer is obliged to provide to the employee at the end of the shift period.

Since the number of days in the calculation may turn out to be non-integer, it is permissible to provide in the local normative act for rounding non-integer days of inter-shift rest to whole ones upwards.

In addition, on the basis of Part 4 of Art. 301 of the Labor Code of the Russian Federation, clause 5.4 of the Basic Provisions on the rotational method of organizing work, approved by the Decree of the USSR State Committee of Labor, the Secretariat of the All-Union Central Council of Trade Unions, the USSR Ministry of Health No. whole days and only then provided. Thus, in this case, at the end of the shift, it is permissible to provide the employee with 10 days of inter-shift rest, and take into account the remainder of 0.63 days and provide it as a day of rest when the whole day has accumulated.

Payment for days between shifts rest

Each day of the inter-shift rest, provided in connection with overtime, is paid in the amount of the daily wage rate, the daily rate (part of the salary per day of work). See below for an example of calculation (example 2). Higher pay can be established by a collective agreement, a local regulatory act or an employment contract (part 3 of article 301 of the Labor Code of the Russian Federation).

See below for details.

Payment of days between shifts lays personal income tax(Article 210 of the Tax Code of the Russian Federation).

Payment for days of inter-shift rest subject to insurance premiums to all funds(Part 1 of Article 7 of the Federal Law of July 24, 2009 No. 212-FZ; Article 20.1 of the Federal Law of July 24, 98 No. 125-FZ).

Details in the materials of the System Personnel:

Employee benefits

How to compensate for overwork during the shift period

O.V. Samsonova, auditor

- Calculation and payment of days of inter-shift rest
- Payment for overtime work during the shift period

Processing during the shift period is of two types.

The first type is the scheduled hours of work that exceed the number of hours of normal work. At the end of the shift, the company compensates for this overwork - it provides paid days of inter-shift rest. They can only fall on workdays according to the schedule of a five-day work week.

The second type of overtime is the hours of overtime work that is not planned for the work schedule. They arise when an employee is recruited to work for production needs beyond the schedule by a separate order.

Let's figure it out:

• - how to plan the number of paid days of inter-shift rest and calculate the payment for them;
• - pay overtime not scheduled.

To begin with, let's consider from what periods the time of the shift worker is made up.

Rotational cycle

The time of a shift worker is made up of the shift and the period between shifts. Together they form the so-called rotational cycle. The components of the rotational cycle are shown in more detail in the diagram below.

Diagram Components of the rotational cycle

Overtime hours and rest between shifts when planning the work schedule

With the rotational method, the norms of work and rest time are not canceled.

The employer is obliged to organize work in such a way that the employee:

• - fully worked out the working time norm;
• - had a rest time no less than the provisions of labor legislation provide.

Compliance with the norms of work and rest during the rotational method is ensured in a special way.

General working hours

The procedure for calculating the norm of working hours for certain calendar periods is established in (hereinafter -). For example, assuming a 40-hour work week, the standard working time for the whole of 2015 is 1971 hours.

Harmful working conditions must be confirmed by a special assessment and assigned to subclass 3.3, 3.4 or 4 ()

If the employee is busy in harmful conditions, his work time reduced to 36 hours per week (). Consequently, the total working time is also reduced.

While doing certain types work provides for special breaks for heating and rest. They are also taken into account when drawing up the schedule, since they are included in working hours (,).

The duration of the work shift and inter-shift rest of the shift worker

The daily duration of work (shift) on a watch can last up to 12 hours. Rest between shifts should be at least 12 hours. The minimum length of weekly rest is one day for each full week of the month.

The watch regulation is applied in the part that does not contradict the Labor Code ()

The duration of the watch

A shift is the time of work at the facility and rest near the facility ().

The duration of a shift for each employee should not exceed one month. In exceptional cases, at individual sites, the duration of the shift can be increased by the employer to three months, but only taking into account the opinion of the trade union ().

Shift rest

Due to the increase in working hours and the reduction in rest time, overwork hours are accumulated during the shift period. Companies are obliged to compensate the employee for this type of processing - to provide paid days of inter-shift rest. Their number is calculated and taken into account when drawing up a work schedule.

The schedule of employees must be familiarized two months before the start of its validity (). It needs to provide for the time of the annual leave.

Calculation of the number of paid days of inter-shift rest

The procedure for calculating the number of days of inter-shift rest depends on the category of the employee.

During normal working hours. When drawing up a work and rest schedule for shift workers who work in normal working hours, the number of working hours is determined based on a 40-hour working week (,).

The number of days between the shift rest is calculated by the formula:

Overtime hours that are not multiples of an entire workday can accumulate. They are summed up to whole working days. As soon as the indicator reaches 8 hours, one day is added to the subsequent period of inter-shift rest ().

Example 1

Calculation of the number of days between shifts rest

During the shift period from April 1 to April 30, 2015, the employee must work 26 shifts of 11 hours each (a six-day work week with a day off on Sunday). Then rest - from May 1 to May 31, 2015.

Normal working hours in April 2015 with a 40-hour work week are 175 hours. How many days of paid inter-shift rest are allowed for overtime?

Solution

The number of scheduled working hours in excess of the norm is 111 (26 working shifts × 11 h - 175 h).

Let's translate these hours into the number of paid days of inter-shift rest. It is equal to 13.875 days. (111 h: 8 h).

After the April shift, the employee will need to provide and pay for 13 days of inter-shift rest. Remaining hours that are not multiples of a whole day (0.875 hours) should be transferred and summed up with overtime hours during the next shift cycle.

The employee is entitled to reduced working hours. With a reduced duration of the working week (less than 40 hours), the number of days of inter-shift rest is calculated in the same way, but a different indicator of the standard duration of the work shift is used.

Look in electronic journal"Salary" (e.zarp.ru, 2010, No. 12)

For example, an employee is assigned a reduced working time of 36 hours per week. The standard duration of one shift is 7.2 hours (36 hours: 5 working days) ().

Summarized accounting of working hours of shift workers

As we noted above, with a rotational work method, you can:

• - exceed the daily and (or) weekly working hours;
• - to provide days of inter-shift rest.

In this regard, with the rotational method, it is necessary to keep a summarized record of working time (). It allows you to comply with the norms of work and rest for a longer period than a day or a week.

The accounting period can last a month, quarter, six months, a year ().

If the working conditions of employees are harmful, the accounting period cannot exceed three months (). A full rotational cycle cannot exceed the duration of the reference period. There can be several rotational cycles in the accounting period.

If one shift cycle lasts two months, then the minimum allowable accounting period should also last two months. The block will not work because it has an odd number of months. But six months or a year would be appropriate.

The longer the accounting period, the more convenient it is to distribute work and rest time within it in order to comply with the norm.

Amount of payment for days of inter-shift rest

Each day of the inter-shift rest, provided in connection with overtime, is paid in the amount of the daily wage rate, the daily rate (part of the salary per day of work). See below for an example of calculation (example 2). Higher pay can be established by a collective agreement, local regulation or employment contract ().

Unpaid rest days between shifts

As a rule, the time between shifts is longer than the number of paid days of inter-shift rest.

In addition to paid days of inter-shift rest, the employee is provided with unpaid days off and weekdays remaining until the start of the next shift.

Recycling not scheduled

Here we use codes from the uniform timesheet form approved by

During the shift period, by order of the employer, the employee may be involved in work beyond the schedule. In the time sheet, such overtime hours are marked with the code "C" or 04. Such overtime is paid in an increased amount at the end of each shift.

The minimum amount of the increased pay is set in the Labor Code:

• - for the first two hours of work not less than one and a half times;
• - for the next hours - not less than double the amount.

Hourly rate to pay for two types of processing

The procedure for paying for days of inter-shift rest and work in excess of the established schedule during the shift period depends on the method of determining the amount of the hourly rate.

An employment contract may initially set a fixed hourly rate.

But in most cases, the wage rate is applied per month - salary ().

How, in this case, to determine the value of the hourly rate?

The average monthly number of hours, for example, with a 36-hour work week in 2015 - 147.78 (1773.4 hours: 12 months).

The company has the right not to follow this recommendation. The hourly rate can be calculated differently: for a month, quarter, half a year. But the recommended method equalizes the value of this indicator in all months of the year. Let us show by an example how, based on the average monthly number of working hours per year and the employee's salary, to calculate the pay for the days of inter-shift rest and for work above the schedule during the shift period.

Read in the electronic journal "Salary" (e.zarp.ru)

How to pay overtime and work on holidays with cumulative accounting

Example 2

Let us use the conditions of Example 1, recall and supplement them.

During the shift period, the employee had to work 286 hours (26 days × 11 hours). The employee is entitled to 13 paid days of inter-shift rest.

In fact, he worked 290 hours, because during several shifts, by order of the employer, he was delayed by one hour.

An employee's salary - 55 845 rubles. per month.

To pay for days of rest between shifts and overworking hours in excess of the schedule during the shift period, the company applies an hourly rate calculated on the basis of the average monthly number of working hours.

Solution

Calculation of the hourly rate based on the average monthly number of working hours in 2015

In 2015, the average monthly number of hours worked is 164.25 (1971 hours: 12 months). The hourly rate is 340 rubles. per hour (55 845 rubles: 164.25 h).

Calculation of payment for days of inter-shift rest

The amount of payment for the days of inter-shift rest, provided according to the approved schedule, is 35,360 rubles. (340 rubles / h × 13 working days × 8 h).

We will calculate the payment for overworking hours during the shift period in excess of the schedule

The amount of payment for overtime work will be 2040 rubles. [(290 h - 286 h) × 340 rubles / h × 1.5].

Please note: we have calculated the amount of full payment for the hours worked by the shift worker in excess of the schedule set for him.

The accountant will charge this payment to the employee immediately after the end of the shift at the same time:

- with a salary for hours worked on a shift within the schedule;

- payment for days of inter-shift rest.

2. Judicial practice:

NIZHNYGOROD REGIONAL COURT

APPEAL DEFINITION

Judge: Ustinova E. B.

The Judicial Collegium for Civil Cases of the Nizhny Novgorod Regional Court composed of:

presiding judge Parshinoy T.V.,

judges Vasilyev I.D., Zavarikhina S.I.,

under secretary L.,

with the participation of R., a representative of Mantrak Vostok LLC by proxy M.

on the appeal of the representative of Mantrak Vostok LLC by power of attorney P.

on the claim of R. to LLC "Mantrak Vostok" for the recovery wages, processing fees, compensation for unused vacation, compensation for moral damage,

after hearing the report of the judge of the Nizhny Novgorod Regional Court Zavarikhina S.I., the explanations of the persons who appeared in the case, the Judicial Collegium for Civil Cases of the Nizhny Novgorod Regional Court

established:

Plaintiff R. applied to the court with the said claim, indicating that from 03.12.2007 to 07.03.2012 he worked at LLC "Mantrak Vostok", from 01.05.2011 to the day of dismissal - the work was carried out on a rotational basis in an autonomous the district. According to the employment contract and additional agreements to it, the salary, taking into account the northern allowance and the regional coefficient, was rubles. Upon dismissal, the final settlement was not made with him, the salary for the period from June 2011 to October 2011 was not paid in full, compensation for unused vacation and overtime payment was not paid. Asks the court to recover wages from the defendant for June - October 2011, taking into account unpaid overtime, overtime and within the schedule, in total in the amount of rubles, compensation for unused vacation in the amount of rubles, compensation for moral damage in the amount of rubles.

R.'s claim to satisfy partially.

Collect from LLC "Mantrak-Vostok" in favor of R .: RUB. cop. - unpaid wages for June, July, August, September, October 2011; rub. cop. - payment for processing in June, August 2011, within the schedule for the year; rub. cop. - compensation for unused vacation; total rub. cop.

Dismiss the rest of the claim.

In the appeal of the representative of LLC "Mantrak Vostok" by power of attorney P. raised the issue of cancellation of the court decision as ruled with violation and incorrect application of the norms of substantive and procedural law. The applicant of the complaint considers that the court, in violation of Art. 39 of the Civil Procedure Code of the Russian Federation allowed the plaintiff, during the consideration of the dispute, to change both the subject matter and the grounds of the claimed claim, without reflecting the objection of the defendant in the court decision. The court gave the wrong legal assessment circumstances of the case, incorrectly applied the rules substantive law, the court did not properly assess the presented evidence. The complainant considers that the payroll was correctly settled with the plaintiff, and there are no wage arrears for the period from June to October 2011. Also, the court incorrectly calculated the payment for processing within the schedule and above the schedule, did not calculate the number of vacation days that should be compensated to the plaintiff upon dismissal, and incorrectly calculated the plaintiff's average earnings. The court's conclusions about the existence of debt were made by the court only from the words of the plaintiff, and were not based on any evidence.

The legality of the decision of the court of first instance was checked by the judicial collegium for civil cases of the Nizhny Novgorod Regional Court in the manner prescribed by Chapter 39 of the Civil Procedure Code of the Russian Federation, within the limits of the arguments of the complaint.

After checking the case materials, discussing the arguments of the appeal, after hearing the explanations of the persons who appeared, the panel of judges comes to the following.

According to Art. 195 of the Civil Procedure Code of the Russian Federation, the court decision must be legal and justified, that is, it must be made with strict observance of the rules of procedural law and in full compliance with the substantive law that apply to this legal relationship, when the facts that are significant for the case are confirmed evidence examined by the court that meets the requirements of the law on relevance and admissibility.

The judicial board considers that in accordance with Art. 39 of the Civil Procedure Code of the Russian Federation, the court reasonably accepted the plaintiff's claims of March 16, 2012 for the court proceedings, since the subject of the dispute, the collection of wage arrears, remained the same, the plaintiff only increased the claims regarding the recovery of compensation for unused vacation.

In accordance with Art. 297 of the Labor Code of the Russian Federation, rotational work is a special form of implementation labor process outside the place of permanent residence of employees, when their daily return to the place of permanent residence cannot be ensured.

In accordance with Art. 302 of the Labor Code of the Russian Federation, employees of employers not related to budgetary sphere, the allowance for the rotational work method is paid in the amount and in the manner established by the collective agreement, the local normative act adopted taking into account the opinion of the elected body of the primary trade union organization, the labor contract.

According to Art. 135 of the Labor Code of the Russian Federation, the salary of an employee is established by an employment contract in accordance with the labor remuneration systems in force for this employer.

It follows from the materials of the case that R. worked at LLC "Mantrak Vostok" from 03.12.2007, and from 01.05.2011 - (case file 63 - 65).

R. worked at the defendant's enterprise under employment contract no. Of 03.12.2007, supplementary agreement of 26.02.2009 and supplementary agreement of 01.05.2011.

In accordance with clause 1 of the supplementary agreement of 05/01/2011 to the employment contract No. of 12/03/2007, the work of the plaintiff was carried out on a rotational basis, at the location of the person served by him production equipment, in the Autonomous Okrug.

According to the employment contract and the supplementary agreement to it, the total amount of R.'s remuneration for a working month at the defendant's enterprise was rubles.

For the performance of labor duties in an area equated to the regions of the Far North, a regional coefficient was set to the specified salary and a percentage allowance of 80% (rubles) was paid, as well as a coefficient for the length of service in areas equated to the regions of the Far North was paid and was paid interest markup in the amount of 80% (rubles) (case sheets 4, 20, 69 - 70). The total wages of the plaintiff for the working month were rubles.

Payroll is calculated from the number of days worked in each month, according to the time sheet. For overwork within the schedule, days of inter-shift rest are provided.

By order N dated 07.03.2012 R. was dismissed from the defendant's enterprise according to on their own(l.d. 61).

During the period of the plaintiff's work at Mantrak Vostok LLC, the following local acts were in force, regulating the remuneration of workers when working on a rotational basis:

1. Regulations on remuneration when working on a rotational basis from 01.04.2011.

2. Regulations on remuneration when working on a rotational basis from 01.06.2011.

According to the changes made to the Defendant's Regulations of 01.04.2011 on the payment procedure, for the days of inter-shift rest it was established that previously the calculation was made per month in the amount of a ruble, taking into account the changes - at the rate of rubles for each day of the inter-shift rest. The amount of salary payment is calculated in proportion to the actual hours worked on the watch.

The court of first instance, considering the claims of the plaintiff, concluded that there was an underpayment to the plaintiff for wages for the period from June to October 2011 in the amount of rubles, since the balance of working hours was worked out by the plaintiff in full, and payments were not made in full. In addition, the court of first instance established the presence of processing of the plaintiff at the defendant's enterprise in June 2011, August 2011, and also within the schedule for the year. The amount of processing amounted to rubles. Also, the defendant, upon dismissal of the plaintiff on 03/07/2012, did not pay compensation for unused vacation in the amount of rubles.

The judicial collegium cannot agree with these conclusions of the court, since they were made with the incorrect application of the substantive law, incorrect determination of the circumstances that are important for the consideration of the dispute.

In accordance with Art. 129 of the Labor Code of the Russian Federation, salary is a fixed amount of remuneration of an employee for performing work duties of a certain complexity for a calendar month, excluding compensation, incentive and social payments. The amount of salary payment is calculated in proportion to the actual hours worked on the watch.

The plaintiff was transferred to a rotational method from 01.03.2009 with a shift duration of 1 month (1 working month - 1 month of rest) with a shift mode of work, taking into account a one-hour break. The schedule was established in the employment contract and the supplementary agreement of February 26, 2009 and May 1, 2011.

According to the time sheet, the plaintiff worked from 16.07.2011 to 15.08.2011, the rest period was from 16.08.2011 to 14.09.2011; worked from 15.09.2011 to 15.10.2011, rest time from 16.10.2011 to 14.11.2011, worked from 15.11.2011 to 14.12.2011. The work schedule was observed.

Calculation of wages is carried out for the actual hours worked on the basis of the established monthly official salary.

The panel of judges points out that the court of first instance made the wrong conclusions regarding the existence of wage arrears to the plaintiff based on the calculation he made on the following grounds.

Monthly calculation is made according to the number of days worked in a month. For overworking within the schedule, days of inter-shift rest are provided.

The court unreasonably indicated the balance of two months when determining processing, since the accounting period for the work of the plaintiff is one year. The calculation of overtime overtime for each month separately is incorrect.

The plaintiff worked in full in May 2011, and he was paid for a full month worked, as well as an additional payment for the days of inter-shift rest in June 2011 (case file 10).

In accordance with Art. 15 of the Labor Code of the Russian Federation, labor Relations is a relationship based on an agreement between the employee and the employer on the employee's personal performance for a fee labor function(work in a certain specialty, qualification or position), the subordination of the employee to the rules of the internal labor schedule while ensuring the employer working conditions stipulated by labor legislation, collective bargaining agreements, agreements, labor contracts.

In accordance with Art. 16 of the Labor Code of the Russian Federation, labor relations arise between an employee and an employer on the basis of an employment contract concluded by them in accordance with this Code. Labor relations between the employee and the employer also arise on the basis of the actual admission of the employee to work with the knowledge or on behalf of the employer or his representative in the case when the employment contract was not properly executed.

According to Part 4 of Art. 11 of the Labor Code of the Russian Federation, in cases where a court has established that a civil contract actually regulates labor relations between an employee and an employer, the provisions of labor legislation and other acts containing norms apply to such relations. labor law.

The panel of judges points out that in the period from June 01 to June 16, 2011 the plaintiff worked under an employment contract, since the parties to the case did not present evidence of a contract concluded, and at the same time, payment in the amount of rubles was made for the performance of this work.

Thus, for the period from 01 to 16 June 2011 the plaintiff was paid both for work, as well as for inter-shift rest in May 2011 (case file 10).

Thus, the defendant has no debt to the plaintiff for June 2011.

In July 2011, according to the report card, the plaintiff worked 16 days.

The calculation of wages is as follows: rubles (salary) / 31 (number of working days in July) * 16 days worked = rubles (salary for July, taking into account the regional coefficient and the northern allowance). Also, the defendant rightfully made payment for the inter-shift rest.

Thus, the panel of judges considers that the defendant has no debt to the plaintiff for July 2011.

In August 2011 the plaintiff worked 15 days.

The court unlawfully calculated separately for the whole of August 2011 and for the period from 16 to 23 August 2011. In August 2011, the plaintiff received rubles and transferred rubles for the inter-shift rest, in total rubles.

The calculation of wages is as follows: rubles (salary) / 31 (number of days in August) * 15 days worked = rubles (salary for August, taking into account the regional coefficient and the northern allowance), and also by the plaintiff worked from 16 to 23 August 2011. and paid in rubles. In addition, the plaintiff was paid for the days of inter-shift rest. Evidence of the existence of a work contract concluded in August 2011 was also not presented to the court.

For September 2011 the plaintiff was paid rubles, while 16 days were worked.

The calculation is as follows: rubles (salary) / 30 * 16 days worked = rubles (salary for August, taking into account the regional coefficient and the northern allowance), and payment has also been made for the days of inter-shift rest.

In October 2011, the plaintiff worked 15 days. The salary for October, taking into account the regional coefficient and the northern allowance, is rubles.

The supplement for days of inter-shift rest must be made in accordance with the Regulations of 01.06.2011, at the rate of rubles for one day of inter-shift rest, which was paid to the plaintiff in full.

Thus, the plaintiff's wages for August, September and October 2011 were also paid by the defendant in full.

In addition, the panel of judges considers that the court miscalculated the payment for processing within the schedule.

According to Art. 301 of the Labor Code of the Russian Federation, in connection with the processing within the schedule, employees are provided with days of rest with a rotational method of organizing work. Such days of rest are days of inter-shift rest and are provided to employees in connection with overworking in excess of the normal number of working hours for this category of workers for the reference period (within the limits of the shift work schedule). These days of rest must be paid, depending on the wage system established by the employer, at least in the amount of the daily wage rate, daily rate, part of the salary (official salary) per day of work. Higher pay for such days can be established by a collective agreement, local regulation or employment contract.

In LLC "Mantrak Vostok" the rate is set - rubles per day of inter-shift rest.

If the number of overtime hours in excess of the normal number of working hours for a given category of workers for the accounting period on the shift was less than a whole working day, then they can be accumulated during the calendar year, then summed up to whole working days with the subsequent provision of additional days of inter-shift rest.

The calculation of the days of inter-shift rest should be based on the number of hours worked per month - the number of normal workers. hours per month / 8 hours.

It follows from the materials of the case that as of 01.07.2011 there were no unused days of inter-shift rest.

At the end of 2011 hours worked according to the report card 1104, according to the schedule - 519, days of inter-shift rest should be presented - 73 days, the number of used days of inter-shift rest - 59 days.

Thus, the number of days of unused inter-shift rest is 14 days.

As of February 7, 2012, the unused 14 days of inter-shift rest were compensated to the plaintiff in the amount of a ruble.

It is also unreasonable for the first instance court to conclude that processing for an employee working on on a rotational basis, within the schedule should be compensated.

According to Art. 301 of the Labor Code of the Russian Federation, days of inter-shift rest are provided for processing. Also, the number of days of inter-shift rest is calculated based on the actual hours worked per month, and not on the average balance, as indicated in the court decision.

The panel of judges also points out that the court miscalculated the payment for processing over the schedule.

The calculation is made based on the results of the accounting period. According to additional agreements to the contract and the Regulations on remuneration, when working on a rotational basis, the accounting period is 1 year.

Considering that, according to the supplementary agreement of 26.02.2009, the plaintiff switched to a rotational method of work from 01.03.2009, that is. The accounting period is calculated from March to February of the next year, i.e.: from March 2009 to February 2010, from March 2010 to February 2011, from March 2011 to February 2012.

According to the time sheet for 2011 (ld 59), for the period from 01.03.2011 to 07.03.2012 the plaintiff actually worked for the last reporting period 1860 hours. At the same time, according to the production calendar for the period from March 2011 to March 2012, the time period is 1997 hours.

Thus, the plaintiff did not have any overtime processing in excess of the schedule in the accounting period from March 2011 to the date of dismissal.

In addition, the court incorrectly calculated the average earnings. According to clause 2. of the Regulation on the specifics of the procedure for calculating the average wage, accrued wages are taken into account. According to clause 3 of this Regulation, payments of a social nature and other payments not related to remuneration are not included in this calculation.

In addition, in the decision of the court of first instance, he indicated an incorrect calculation of the number of days of unused vacation that should be compensated upon dismissal.

The plaintiff has filed claims for the recovery of compensation for 135 days, while there is no evidence in the case file that the plaintiff should be compensated for 135 days of vacation.

The court, satisfying the claims of the plaintiff in this part for the amount of rubles, made a conclusion without taking into account all the circumstances in this case.

The plaintiff worked at LLC "Mantrak Vostok" from 03.12.2007 to 28.02.2009 in the city (vacation 28 calendar days a year). From 01.03.2009 to 07.03.2012 the plaintiff was transferred to the city, and, taking into account the rotational work method, he was entitled to vacation for 44 calendar days a year.

Thus, for all the time worked in LLC "Mantrak Vostok" the plaintiff was entitled to 165 days, while the plaintiff used 73 days, not used - 92 days.

The defendant paid compensation in full for all unused vacation days. Based on rubles for 1 day. The total amount of compensation amounted to rubles, which is confirmed by the payment order dated 07.03.2012. The Judicial Board considers that the calculation of compensation for the vacation was made by the defendant correctly, in full.

Since the panel of judges did not establish any violations of the plaintiff's rights by the defendant, there are no grounds for compensation for non-pecuniary damage either.

In accordance with the rule of Art. 330 of the Civil Procedure Code of the Russian Federation, grounds for cancellation or amendment of a court decision on appeal are incorrect determination of the circumstances relevant to the case, inconsistency of the conclusions of the court of first instance set out in the court decision with the circumstances of the case, as well as violation or incorrect application of substantive law or rules of procedural law.

Based on the provisions of Art. 328 of the Civil Procedure Code of the Russian Federation, the judicial board, taking into account the violations of substantive law and the incorrect determination of the circumstances that are important for the dispute under consideration, considers it necessary to cancel the court's decision and make a new decision on the case to refuse to satisfy the plaintiff's claims to recover the arrears payment for the period from June to October 2011, for processing for June 2011, August 2011, within the schedule for the year, compensation for unused vacation, compensation for moral damage.

Guided by Art. Art. 328, 329, 330 of the Civil Procedure Code of the Russian Federation, judicial board

defined:

The decision of the Borsky City Court of the Nizhny Novgorod Region dated April 13, 2012 on the recovery from LLC "Mantrak Vostok" in favor of R. unpaid wages for June, July, August, September, October 2011 in the amount of RUB. cop .; payment for processing in June, August 2011, within the schedule for the year in the amount of rubles. cop., compensation for unused vacation in the amount of rubles. cop., cancel.

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

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

The specified schedule provides for the time required for the delivery of workers to the shift and back. Days on the way to the place of work and back are not included in working hours and may fall on days of inter-shift rest.

Each day of rest in connection with the processing of working time within the work schedule on the shift (day of inter-shift rest) is paid in the amount of the daily wage rate, the daily rate (part of the salary (official salary) per day of work), unless a higher wage is established by the collective agreement, local regulation or employment contract.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

If the remainder of this division is not a multiple of a whole day, then processing hours are accumulated during the calendar year up to whole working days. Additional days of rest between shifts are granted later.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

9. In case of part-time work in the accounting period or on a shift (due to illness, vacation, involvement in the performance of state or public duties, etc.), working hours according to the calendar that fall on the days of absence for work (clause 4.5 of the Basic Provisions).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Yes need.

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

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

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

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

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

How to provide vacations to shift workers

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

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

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

A question from practice: can the organization provide an employee with a leave from the middle working watch

Yes maybe.

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

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

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

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

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

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

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

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

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

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An employer who attracts employees to work on a rotational basis is obliged to pay employees for a period of rest between established order... In the article, we will analyze how the payment for the days of inter-shift rest is made, and also, using an example, we will consider the procedure for calculating the employee's remuneration for the period of rest on the shift.

The period of the shift and inter-shift rest

The organization of the rotational work method is carried out in accordance with the requirements provided for by Chapter 47 of the Labor Code of the Russian Federation. According to the provisions of labor legislation, the rotational method provides for the organization of work, within the framework of which the employee does not have the opportunity to return home from the place of work every day.

The shift period includes the period during which the employee performs his labor duties at the production site, as well as the time of rest in a specially designated place (the so-called rotational camp).

Based on Art. 299 of the Labor Code of the Russian Federation, the total duration of the shift cannot exceed one calendar month. In exceptional cases, the shift period is extended to 3 months, provided that the employer proves the production necessity of such an extension and receives the approval of the elected body of the trade union organization.

Engagement to work on a rotational basis is carried out by the employer with the consent of the employee and only after receiving documentary approval trade union body.

The procedure for payment of working days on watch

Payment for work days during the shift period is determined on the basis of the tariff rate approved by the employment contract. If the enterprise has established shift wages, then the calculation of remuneration for the "shift worker" is calculated according to the following formula:

Salary shift schedule = Rate shift * QuantitySm,

where Tariff change- tariff rate established for one work shift;
Quantity cm

When approving the hourly work schedule, the employee is paid a salary calculated as follows:

Salary hourly schedule = Rate hour * PeriodShift hour * Quantity,

where Rate hour- rate for 1 hour of work;
PeriodShift hour
Quantity cm- the number of work shifts during the reporting period.

If during the shift period the employee's work shifts fell on weekends or holidays, then the employer must pay double the amount for this period.

Let's look at an example. Ivolgin works at a diamond mine on a rotational basis with shift wages. Ivolgin's watch period is from 05/01/2018 to 05/31/2018. During the shift, Ivolgin worked 15 shifts, two of which fell on holidays - 05/01/2018 and 05/09/2018.

Ivolgin's tariff rate is 2.030 rubles. per shift.

When calculating Ivolgin's salary, the employer took into account double pay for 2 shifts on holidays and the standard rate for the remaining 13 shifts:

13 shifts * 2.030 rub. + 2 shifts * 2 * 2.030 rub. = RUB 34.510

On the basis of the provisions of the Labor Code of the Russian Federation, the employer is obliged to pay the "shift worker" not only for working days, but also for days of inter-shift rest. Non-working time falling on the period of between shifts is paid at the rate set for one working shift.

If the enterprise applies hourly payment labor, the day of inter-shift rest is paid on the basis of an 8-hour working day (rate per 1 hour of work * 8 hours of rest).

Timekeeping on watch

Working time on a rotational basis is accounted for on a summarized basis. The total number of working hours is equal to the sum of work shifts during the shift period, multiplied by the duration of each shift in hours:

SlaveTime = SlaveCm * DlitCm,

where Slave time- the total amount of working hours on the shift payable;
Slave- the number of work shifts;
Duration cm- the duration of each work shift.

When calculating the working time of a "shift worker", the norms established by the production calendar on the basis of a 40-hour working week are taken into account.

How to calculate days between shifts rest

The rest period is the difference between the time that the employee actually worked during the shift period and the working hours established by an 8-hour work day (40-hour work week) in the reporting month.

The rest period is measured in working days (shifts). If the enterprise uses hourly recording of working hours, then 1 day of inter-shift rest is equal to 8 hours of overworking in excess of the established norm of working time:

NormRabVr watch = NormRabVr / 8 hours,

where NormRabBr watch- the norm of working time used when calculating the period of inter-shift rest (in days);
NormRabBr - the norm of working hours, established on the basis of a 40-hour work week (in hours).

Let's consider an example ... June 2018 - 30 calendar days, including 20 working days, 10 days off. The standard working hours for a 40-hour week is 159 hours. Let's calculate the rate required for calculating the period of inter-shift rest:

159 hours / 8 hours = 19.875.

Having determined the norm of working time in shifts, the calculation of the period of inter-shift rest with a shift work schedule can be made according to the formula:

Int'l shift = KOLSM - NormRabVr watch,

where Introductory change
Quantity cm- the number of work shifts during the reporting period.

If the employer calculates the salary according to the hourly schedule, then the period of inter-shift rest is determined as follows:

IntHourly = PeriodShift hour * Quantity - NormWorkWr shift,

where Introductory change- inter-shift rest payable;
PeriodShift hour- the duration of one shift in hours;
Quantity cm- the number of work shifts during the reporting period.

Let's consider an example ... Nikanorov works on a rotational basis at drilling rig"North". Nikanorov's watch period is from 01.10.2018 to 31.10.2018.

During the shift, Nikanorov was assigned 18 shifts of 11 hours each (a total of 198 working hours).

According to the production calendar, the working time norm in October 2018 is 184 hours.

We will calculate the period of Nikanorov's shifts to be paid:

(198 hours - 184 hours) / 8 hours = 1.75 days.

How to pay for an inter-shift vacation for less than one day

As a rule, the result of calculating the days of inter-shift rest is a non-integer number, that is, an incomplete day. In this case, the employer pays only full days of inter-shift rest, the rest of the rest is transferred to the next reporting period (next shift).

An example of calculating the payment of days of inter-shift rest

Severov S.D. works on a rotational basis at an oil production enterprise. Severov's watch period is from 01.11.2018 to 30.11.2018.

During the shift, Nikanorov has 16 shifts of 11 hours each (a total of 176 working hours), 4 of which fall on weekends.

According to the production calendar, the working time norm for a 40-hour work week in November 2018 is 168 hours.

The rate set by Nikanorov for 1 shift is 1.998 rubles.

At the end of the shift, Nikanorov was paid a salary at the standard rate for 12 shifts, at a double rate for 4 shifts on weekends.

1.998 RUB * 12 shifts + 1.998 rub. * 2 * 4 shifts = 39.960 rubles.

In addition, the employer is obliged to pay Nikanorov for the inter-shift rest period:

(176 hours - 168 hours) / 8 hours = 1 day

Payment for 1 day of inter-shift rest is made according to the tariff rate set by Nikanorov for 1 working shift - 1.998 rubles.

Thus, at the end of the shift period, Nikanorov was paid a salary for the days worked and remuneration for the period of inter-shift rest:

RUB 39.960 + 1.998 RUB = RUB 41.958