In accordance with paragraph 28 of the rules approved by the Decree of the USSR tubing dated 04.04.1930 No. 169, upon dismissal of an employee who DOES NOT USE his right to leave, he shall be paid compensation for unused leave. At the same time, workers dismissed for any reason who have worked for this employer for at least 11 months, which are set off in the period of work that gives the right to leave, receive full compensation. If an employee worked for 11 months and was given, for example, 10 days of annual basic paid leave (that is, he used his right to leave), then what kind of compensation should such employee be entitled to leave?
Answer
The answer to the question:
1. First, the employee experience is calculated using all the required rounding, and only then the right to compensation is determined.
2. From the employee’s due, on the basis of his experience, the number of vacation days, the vacation (part) already granted for the given working year should be deducted. And the resulting difference in dismissal is compensated.
3. If the employee’s vacation is 28 days, then with seniority for the last working year 11 months, he is entitled to all 28 days of vacation, but since he has already used 10 days, he is entitled to receive monetary compensation only for 18 days (Article 127 of the Labor Code of the Russian Federation - compensation is paid only for unused vacation days)
Details in the materials of the System Personnel:
In order to correctly compensate for unused vacations upon dismissal, determine their number. Then multiply by the average employee earnings. In the recommendation, we will reveal the algorithm of actions at each stage.
Calculation Procedure
What you need to consider when calculating the number of unused vacation days when calculating compensation for unused vacation when leaving
If an employee has worked in the organization for less than 11 months in a working year, then for this year he is entitled to proportional compensation (). That is, the number of unused vacation days in this case is determined in proportion to the time worked:
Question from practice: how to determine the period of half a month to calculate compensation for unused vacation
Upon dismissal, an employee who has not exercised his right to leave shall be compensated for all unused leaves (, the Rules on regular and additional leaves approved).
When calculating the terms of work that entitle to proportional or compensation for leave upon dismissal, surpluses of less than half a month are excluded from the calculation, and surpluses of at least half a month are rounded to the full month. Such a rule is established by the Rules approved.
At the same time, the period specified in half a month is considered as a period calculated in days and is considered equal to 15 days in accordance with the Civil Code of the Russian Federation.
Thus, if an employee has worked in the organization for 14 days, that is, less than half a month, then compensation for unused vacation is not due to him.
Question from practice: is it necessary to round up to a full day the fractional number of days for which compensation must be paid for unused vacation related to dismissal
When calculating the number of unused vacation days for which you need to pay compensation, you can get a fractional number of days. For example, if an employee needs to pay compensation for five months worked, 11.67 days are obtained (28 days: 12 months × 5 months).
The legislation does not provide a mechanism for rounding the number of unused vacation days. Therefore, this issue remains at the discretion of the organization.
If the organization decides to round, for example, to whole days, this should be done not according to the rules of arithmetic, but in favor of the employee ().
The organization may also decide not to round the number of unused vacation days to an integer. See more about this.
Question from practice: up to how many digits after the decimal point can you round off the fractional number of days for which you need to pay compensation for unused vacation to the dismissed employee
The legislation does not contain a definite answer to this question; in practice, it is most often rounded up to two digits.
When calculating the number of unused vacation days for which you need to pay compensation, you can get a fractional number of days. For example, if an employee needs to pay compensation for 10 months worked, 23.3333 days are obtained (28 days: 12 months × 10 months). At the same time, to how many digits after the decimal point to round off the fractional number of unused vacation days, the labor legislation does not say. At the same time, most accounting programs provide for the rounding of the fractional number of days to two decimal places according to the general rules of arithmetic.
) That is, the last digit in the fraction is rounded up, even if the figure preceding it is less than five.
Compensation for unused vacation
Compensation for unused vacation related to dismissal is the average earnings of an employee (Article, Labor Code of the Russian Federation).
Regardless of whether the employee’s working hours are recorded in days or if a summarized working hours is established for him, the total amount of compensation for unused vacation related to dismissal should be calculated using the formula:
With respect and a wish for comfortable work, Elena Petrichenko,
expert System Personnel
These Rules apply to the extent not contrary to the Labor Code of the Russian Federation.
.
.
(Published on the basis of the decree of the Council of People's Commissars of the USSR of February 2, 1930 - protocol No. 5/331, p. 28).
I. Right to leave
1. Each employee who has worked with this employer for at least 5 months has the right to receive another vacation. The next vacation is granted once during the year of the employee’s work with the given employer, counting from the day of employment, i.e. once in a working year. The right to the next regular leave on account of the new working year arises for the employee after 5 months from the date of the end of the previous working year. Employees who came to this employer in 1929 or earlier are granted leave in compliance. If an employee is transferred at the suggestion of the labor body or a commission composed by him, or at the proposal of a party, Komsomol or professional organization from one enterprise or institution to another, without interruption in work, then the time worked for previous employer - provided that the employee, at his request, did not receive compensation for unused vacation during this time (part is additionally included by resolution of the USSR People’s Commissariat of Labor No. 32 of January 31, 1931). Example. The worker entered the factory on February 3, 1930. On July 18, 1930, he received the right to regular leave on account of the year he worked, i.e. until February 3, 1931. He will be entitled to the next vacation on account of the second year of work on February 3, 1932 on July 18, 1931, etc.
2. There may be cases when an employee leaves before the end of the working year for which he has already received leave. In these cases, when calculating the tenant has the right to deduct from wages for unworked days of vacation. Retention is not allowed if the employee quits due to:
A) liquidation of the enterprise or institution or its individual parts, reduction of staff or work, as well as reorganization or temporary suspension of work;
B) admission to active military service;
C) business trips in the prescribed manner to a university, technical school, labor school, preparatory department at a university or training courses at a university or a labor school;
D) redeployment to another job at the proposal of the labor body or the commission attached to it, as well as a party, Komsomol or professional organization;
D) the revealed unfitness for work. The paragraph is not valid in the territory of the Russian Federation - Order of the Ministry of Health and Social Development of Russia of April 20, 2010 No. 253. - See previous edition
Paragraph 3 of paragraph 2 of these Rules is declared invalid in the territory of the Russian Federation on the basis of Order No. 190 of the Ministry of Health and Social Development of March 3, 2005.
Order of the Ministry of Health and Social Development of Russia dated March 3, 2005 No. 190 was returned without consideration by the Ministry of Justice of the Russian Federation (letter of the Ministry of Justice of Russia dated March 31, 2005 No. 01/2337-VJ) and was canceled on the basis of order of the Ministry of Health and Social Development of Russia dated April 20, 2010 No. 252.
This entire article applies regardless of whether the leave is used after 5 1/2 months of work or before this period - in advance ().
Example. The employee entered on January 15, 1931. He received full leave from July 15, and on August 15, 1931 resigned at his own request. The employer can withhold wages from him for 5 days, since the employee received 12 days of vacation for 12 months of work and of them did not finish 5 months.
(Article in the wording. - See the previous edition)
3. If an employee resigned before the end of the working year for which he had already received leave or full compensation, then the new employer has 5 1/2-month working hours giving the right to leave, is calculated as follows:
A) if during retirement a deduction was made for all unworked days of vacation, then the 5 1/2-month period shall be considered from the day of receipt by the new tenant;
B) if upon dismissal, the employer, having the right to withhold, did not actually do it at all or in part, then the 5 1/2-month period begins when the employee works for the new employer for one month for each unworked vacation day for which wages remain uncontrolled (and with an 18- or 24-day vacation from the previous employer - one month for every one and a half or two days);
C) if upon dismissal the tenant did not have the right to withhold, then the 5 1/2-month period begins after the expiration of the working year for which vacation or full compensation was received from the previous employer; in this case, the one-year period also includes the time of a break in work after dismissal, as well as the time spent in work that does not give the right to leave (temporary, seasonal, etc.). Example 1 (to paragraph "b"). The employer, firing the employee on August 15, 1931, had the right to withhold wages from him for 5 unworked days of vacation, but actually retained them only for 2 days (since the rest of the days of August the employee fell ill). On September 1, 1931, the employee entered the new employer. 5 1/2-month period for a new vacation will begin with him only from December 1, 1931 and expires May 15, 1932. Example 2 (to paragraph "c"). The employer on October 1, 1931 to lay off the staff fired an employee who had served with him on March 1, 1931 and had already used his leave. Since October 15, 1931, the employee entered the new employer. 5 1/2-month period for a new vacation will begin with him only on March 1, 1932 and expire on August 15, 1932.
(Article in the wording of the resolution of the People’s Commissariat of Labor of the USSR of December 14, 1930 No. 365. - See the previous edition)
4. In the 5-month period of work, giving the right to the next vacation, the following are counted:
A) actually worked time;
B) the time when the employee did not actually work, but the employer was required by law or a collective agreement to retain his position and earnings in whole or in part (including the time paid by the employer for forced absenteeism upon improper dismissal and subsequent reinstatement);
C) the time when the employee, while retaining his position, did not actually work, but received benefits from the insurance fund (illness, injury, pregnancy, childbirth, quarantine, caring for a sick family member). The rest of the time during which the employee did not actually work, is not counted towards the employee. Example. The worker entered the workshop on March 5. From April 1 to April 15, he was ill and received benefits from the insurance fund during these days; on the days of May 1-5, he was called up for a short-term gathering in the territorial part; from June 1 to 10, he did not go to work for reasons recognized by the employer as valid, but without payment for the time missed. The right to leave from such an employee arises after 5 months and another 10 days, i.e. August 30th.
5. Not applicable - joint resolution of the USSR State Committee for Labor and the Presidium of the All-Union Central Council of Trade Unions of December 29, 1962 No. 377/30. - See previous edition.
6. The receipt of leave or compensation for it should be noted by the employer in the paybook and labor list - in accordance with the established forms of these documents. The same mark should be entered in the certificate issued to the employee upon dismissal. In all of these cases, the time period on which the leave or compensation is granted must be indicated (for example, “I used the leave before June 1, 1931”). If, upon dismissal of an employee, the employer has the right to withhold wages for unworked vacation days (), then the note shall be added in the employee’s documents: “deduction for unworked vacation days is made in full” or “wages for so many days of vacation remain uncontrolled” (part is supplemented - see previous edition). If the documents submitted by the employee do not contain instructions on the use of leave from previous work, the employer may require an appropriate certificate from the employee or request it from the previous place of work.
II. Vacation duration
7. The next vacation for adult workers is provided in all cases for 12 working days, with the addition of holidays attributable to vacation time. The same amount provides full additional leave to workers employed in particularly harmful and dangerous conditions, according to the lists of professions established by the tubing or collective agreement, if the lists do not provide for vacation of a different duration.
8. Workers with irregular working hours may be granted, as compensation for workload and work outside working hours, additional leave. The term of this vacation in state institutions and enterprises and mixed joint-stock companies with a predominant participation of state capital may not exceed 12 working days.
9. For minors who are under the age of 18 by the day the right to leave has arisen, as well as for all students of schools of industrial and mining apprenticeships and schools of mass professions - regular leave is granted in the amount of one calendar month (for example, from June 5 to July 5 ), but not less than 24 working days. If these minors or students are allowed to work in especially harmful and dangerous professions listed in the tubing lists in the prescribed manner, then the next vacation is granted to them in total in the amount of one and a half calendar months, but not less than 36 working days.
III. Time and procedure for using vacation
10. Holidays are granted to employees at any time throughout the year in the order established by the RKK, and in the absence of the RKK, by agreement of the employer with the relevant trade union body. The priority of vacation for each year is set no later than January 1 of this year (for 1931 — no later than January 25, 1931) (part in the wording of Resolution No. 21 of the People’s Commissariat of Labor of the USSR of January 19, 1931 — see previous version). Vacation can be granted both sequentially to one employee after another, and at the same time to all or some groups of employees (for example, when the enterprise is inevitably suspended for repair). In the event of an unexpected suspension of work in an enterprise or institution or in its separate parts (due to an accident, natural disaster, etc.), by decision of the RKK, leave can be granted to all groups or certain groups of workers at the same time, with a departure from the previously established queue.
11. Holidays should not be confined exclusively to the 1st and 15th of each month, but should be distributed, if possible, evenly throughout the month.
12. When establishing a queue, provision may be made for granting leave to one or another employee until the right to leave (advance payment) has come to him. Part excluded by the decision of the People’s Commissariat of Labor of the USSR of December 14, 1930 No. 365. - See previous edition. The example is excluded by the decision of the People’s Commissariat of Labor of the USSR dated December 14, 1930 No. 365. - See previous edition.
13. Holidays for minors are granted (in the order established by the ALAC) as a general rule in the summer. This does not deprive minors of the right to use leave at other times of the year.
14. There may be cases when the employee has the right to regular and additional leave arises at different times. In such cases, both leaves are granted to him at the same time completely in time, determined by the RKK when establishing the general queue of leaves. At the same time, the period of work for a new vacation on the account of the next working year is calculated separately for the next and for additional holidays. Example. An employee who arrived at the plant on March 10, 1930, is transferred to the harmful workshop from May 10. He has the right to another leave on August 25, and on an additional leave only on October 25. In turn, he is granted both holidays from October 1. The following year, his right to new vacations again arises; on the first leave - on August 25, and on the second - on October 25.
15. Leave for a combined position is granted simultaneously with leave for the main position.
16. The employer is obliged to timely submit to the RKK (and in the absence of the RKK - to the union) a draft distribution of the vacation queue. The employer must also notify each employee of the start and end times of his vacation. Notification shall be made no later than fifteen days by posting relevant announcements in workshops, workshops, departments and other places of work. Employees receiving leave on an individual basis (for example, when the vacation period is postponed) must be warned by written notice. If, according to the decision of the RKK, leave is granted to a group of workers out of turn due to an accident, natural disaster, etc., then notification of employees about the time of their vacation should be made no later than two days later.
17. The next or additional vacation should be deferred or extended in the following cases:
A) in the event of temporary disability of an employee certified by a sick leave certificate (disability certificate) (subparagraph as amended by Resolution of the Council of Ministers of the USSR dated December 6, 1956 No. 1586 - see previous version);
B) in the event that an employee is involved in the performance of state or public duties;
C) in the event of the arrest of an employee;
D) in other cases provided for by special regulations. The employer has the right to require the employee to submit documents proving the impossibility of using the leave at the appointed time. In addition, according to a special statement from the employee, the vacation should be postponed if the employer did not timely inform the employee about the time of his vacation or did not pay wages for the vacation ahead of the vacation.
18. If the reasons that prevent the employee from going on vacation come before it begins, the new vacation period is determined by agreement between the employer and the employee. If these reasons occurred during the employee’s vacation, the period of return from vacation will automatically be extended by the appropriate number of days, and the employee must immediately notify the employer. These days are paid by the employer if, by law or contract, he was obliged to pay the employee wages during the execution of a state or public duty or during the arrest. If the vacation is lengthened due to temporary disability, additional days are not paid by the employer. Example 1. An employee went on vacation on September 15 for a month. From October 1 to 10, he was ill and received a sick leave and benefits from the insurance fund. Leave him should be extended until October 25, without payment by the tenant, because thanks to the grant of benefits, additional days have already been paid when granting leave. But if the employee has not received a sick leave, leave is not subject to extension. Example 2. An employee, while on vacation, was summoned for 3 days to court by an expert. Holidays should be extended for 3 days with payment for these days on average earnings.
19. Transfer of all vacation in other cases, except as indicated in, is allowed by agreement of the employer and employee or by decision of RKK, and division into parts of the next vacation (including cumulative) by agreement of the employer and employee. In the absence of these conditions, the transfer and separation of leave is not allowed.
IV. Retention of position and earnings during vacation
20. Dismissal of an employee who is on regular or additional leave is not allowed, with the exception of cases:
A) the complete liquidation of the enterprise or institution;
B) suspension of work in the enterprise or institution as a whole for a period of more than one month for industrial reasons;
C) the entry into force of a guilty verdict in a case directly related to work in this enterprise or institution;
D) in the case when the dismissal is carried out in the order of cleaning the device in the first or second category.
21. During the employee’s stay in the next or additional vacation, he retains his average earnings. Payments are made on the eve of the start of the vacation.
22. If during the employee’s stay on vacation his salary has changed, no recalculation with the employee due to this change is made, with the exception of the case when the fixed rate or salary of the employee is paid on a time basis. To this employee, an enterprise or institution is obliged to pay the difference between the old and new rates or salaries for the time from the day the payment is increased. Recalculation is carried out in all cases of detection of incorrectness in the calculation of wages.
V. Summation of holidays and compensation for holidays
23. Failure to provide the next leave in the current year is allowed only if the provision of leave to this employee may adversely affect the normal course of work of the enterprise or institution. For non-provision of leave, an agreement of the employer with the employee and approval of this agreement by the conflict-settlement commission is necessary. In case of failure to reach an agreement between the employer and the employee, the issue shall be resolved by the RKK in conflict.
24. Failure to provide regular leave for two consecutive years.
25. Failure to provide regular leave to minors, as well as additional leave in particularly harmful and dangerous professions, with the exception of cases of dismissal of an employee.
26. In addition to cases of direct non-provision of vacation (), vacation is considered unused (in whole or in part) through the fault of the employer also in the following cases:
A) if the vacation has remained unused due to the employer not taking measures to establish the vacation queue;
B) if the vacation, which was subject to mandatory transfer, was not rescheduled for a new term.
27. In case of non-use of the vacation (in whole or in part) due to the fault of the employer, the employee must be paid monetary compensation for the unused vacation or in the next year the vacation should be extended for an unused period. To summarize the vacation, the agreement of the employer with the interested employee is sufficient. Summing the vacation in case of disagreement of the employer or employee, as well as any payment of monetary compensation for the vacation (except for cases of dismissal) is allowed only by decision of the ALAC. The employee’s refusal to use the leave within the time period set for him without agreement with the employer, and if the agreement is not reached without a decision, RKK does not give the employee the right to compensation or summation of the leave.
28. Upon dismissal of an employee who has not exercised his right to leave, he shall be paid compensation for unused leave. At the same time, employees dismissed for any reason who have worked for this employer for at least 11 months and are set off against the period of work that gives them the right to leave, receive full compensation.
Workers who have worked from 5 to 11 months if they quit as a result (paragraph in the wording of the resolution of the People’s Commissariat of Labor of the USSR dated August 13, 1930 No. 267 - see the previous edition) also receive full compensation:
A) liquidation of an enterprise or institution, go to certain parts of it, reduction of staff or work, as well as reorganization or temporary suspension of work (the clause is additionally included);
B) admission to active military service (the clause is additionally included by the Decree of the People's Commissariat of Labor of the USSR of August 13, 1930 No. 267);
C) business trips in the prescribed manner to universities, technical schools, labor schools, preparatory departments at universities and training courses at universities and labor schools (the clause is additionally included by resolution of the USSR People’s Commissariat of Labor No. 267 of August 13, 1930);
D) redeployment to another job at the proposal of the labor authorities or the commissions composed by them, as well as party, Komsomol and professional organizations (the clause is additionally included by resolution of the USSR People’s Commissariat of Labor No. 267 of August 13, 1930);
E) the revealed unsuitability for work (the item is additionally included by the resolution of the People’s Commissariat of Labor of the USSR of August 13, 1930 No. 267). In all other cases, employees receive proportional compensation. Thus, proportional compensation is received by employees who have worked from 5 to 11 months if they are fired for any other reasons other than those indicated above (including those of their own free will), as well as all employees who have worked for less than 5 months, regardless of the reasons layoffs.
29. Full compensation is paid in the amount of the average earnings for the full vacation period. Proportional compensation is paid in the following amounts:
A) during a vacation of 12 working days - in the amount of the average daily earnings for each month of work, subject to set-off on time, giving the right to leave;
B) for a vacation of 24 working days and for a monthly vacation - in the amount of a two-day average earnings for each month;
C) for a one and a half month vacation - in the amount of three days, and for a two month vacation - in the amount of a four-day average earnings for each month. When calculating the period of work, which gives the right to compensation, it is accordingly applied. Example 1. The employee entered the work on June 1, 1930 and is dismissed on March 1, 1931. He has the right to receive compensation for 9 months of work, i.e. for holidays of 12 working days - for 9 days, for holidays of 24 working days and monthly leave - for 18 days, for one and a half months holiday - for 27 days, and for two months holiday - for 36 days based on daily average earnings.
Example 2. An employee went to work on March 1, and from June 1 was transferred to a workshop with harmful working conditions. Upon dismissal on August 1, he will receive compensation: for the next vacation - for 5 months of work, and for additional leave - for 2 months, and only seven-day earnings.
30. Compensation for vacation extended on the basis of a collective or written labor contract or on the basis of a mark in the paybook is paid according to the vacation period established in the contract or pay slip. In other cases of optional extension of vacation by the law, the employer is obliged to pay compensation in accordance with the generally established vacation period. When summing the holidays, extended holidays are included in the calculation in all cases in full.
31. In combination, compensation for vacations not used in a combined position is paid on a common basis.
Clause 31 has lost force with respect to employees whose official salary at the main place of work exceeds 60 rubles per month — Decree of the USSR Council of Ministers of March 21, 1961 No. 254.
32. Compensation for leave shall be paid at the end of the year of work, with the exception of cases of dismissal of the employee.
Hello, to determine how many days compensation is due, do the following:
Calculate the length of service for vacation in full months for the entire period of work in this company. Days of an incomplete month are discarded if there are less than 15, or are rounded to the full month if there are 15 or more. Read more about the vacation experience here. Determine the total number of vacation days that an employee is entitled to for the entire period of work. Determine the total number of vacation days provided for this period. Determine the amount of unused vacation (subtract the value in paragraph 2 from the value in paragraph 2) .
in accordance with article 115 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), the duration of the annual basic paid leave of employees is 28 calendar days. According to article 127 of the Labor Code of the Russian Federation, upon dismissal, an employee is paid monetary compensation for all unused holidays (regardless of the number of years worked, for which holidays should be granted).
Currently, by virtue of Article 423 of the Labor Code of the Russian Federation, the number of vacation days for which monetary compensation should be paid is determined in the manner established by the Rules “On Regular and Additional Holidays” approved by the People’s Commissariat of Labor of the USSR dated April 30, 30 No. 169. In accordance with paragraph 28 of these Rules, if an employee has worked for at least 11 months with the employer, which must be recorded in the period of work giving the right to leave, then the employee must be paid compensation for the full period of leave in the amount of average earnings (full compensation). In cases where the employee has worked for the employer for less than 11 months, he will be paid proportional compensation. Clause 29 of the said Rules establishes that proportional compensation is calculated in the amount of daily average earnings for each month of work, which must be recorded in the period of work that gives the right to leave. The amount of compensation for each worked month is determined by dividing the number of days of the annual basic paid vacation (currently 28 days) by 12 (the number of months in a year). At the same time, a term of less than half a month is not taken into account, and more than half a month is rounded up to a whole month in the direction of increase.
Thus, the number of unused vacation days to be compensated to the employee for each month worked can be determined by the formula No. 1: 28/12 \u003d 2.33 paid vacation days. If several months worked are compensated, then 2.33 should be multiplied by the number of months worked. The result is the number of unused vacation days to be compensated for the corresponding number of months worked. But in this case, the rounding of the resulting number to an integer is not performed.
The procedure for calculating average wages (including for determining the amount of monetary compensation for unused vacation) is established in article 139 of the Labor Code of the Russian Federation. According to this article, to calculate the average wage, all types of payments (not having a one-time nature) provided by the pay system used in the relevant organization are taken into account, regardless of the sources of these payments. The specific list of payments taken into account when calculating average earnings is approved by the Decree of the Ministry of Labor of the Russian Federation of 05.17.2000 No. 38
About regular and additional holidays
Rules for regular and additional holidays
(about vacations and other types of rest time)
REGULATIONS
ON NEXT AND ADDITIONAL VACATIONS
(Published on the basis of the Decree of the Council of People's Commissars of the USSR
dated February 2, 1930 - protocol N 5/331, p. 28)
(as amended by Decisions of the USSR tubing
from 08/13/1930 N 267, from 12/14/1930 N 365,
from 01/19/1931 N 21, from 01/31/1931 N 32,
Decisions of the AUCCTU of 02.02.1936 (Protocol No. 164),
Decisions of the Council of Ministers of the USSR of 06.12.1956 N 1586,
Decisions of the State Committee for Labor of the USSR, Presidium of the AUCCTU
dated December 29, 1962 N 377/30, of Orders
Ministry of Health and Social Development of the Russian Federation of 03.03.2005 N 190,
dated April 20, 2010 N 253)
I. Right to leave
1. Each employee who has worked for at least 5 1/2 months with this employer has the right to receive another vacation.
The next vacation is granted once during the year of the employee’s work with the given employer, counting from the day he was hired, that is, once in the working year.
The right to the next next vacation on account of the new working year arises for the employee after 5 1/2 months from the date of the end of the previous working year.
Employees who came to this employer in 1929 or earlier are granted leave in compliance with Art. 87.
If an employee is transferred at the suggestion of a labor body or a commission composed by him, or at the proposal of a party, Komsomol or professional organization from one enterprise or institution to another, without interruption in work, then the time worked for previous employer - provided that the employee, at his request, did not receive compensation for unused vacation during this time.
(Part Five was introduced by Decree of the USSR NKT dated 31.01.1931 N 32)
Example. The employee entered the plant on February 3, 1930. He receives July 18, 1930 the right to regular leave on account of the year of his work, i.e. until February 3, 1931. He will receive the right to the next vacation on account of the second year of work on February 3, 1932 on July 18, 1931, etc.
2. There may be cases when an employee leaves before the end of the working year for which he has already received leave. In these cases, when calculating the tenant has the right to deduct from wages for unworked days of vacation.
Retention is not allowed if the employee quits due to: a) liquidation of the enterprise or institution or its individual parts, reduction of staff or work, as well as reorganization or temporary suspension of work; b) admission to active military service; c) business trips, in the established manner, to a university, technical school, rabfak, preparatory department at a university or courses on preparation for a university or rabfak; d) redeployment to another job at the proposal of the labor body or the commission attached to it, as well as a party, Komsomol or professional organization; e) the revealed unfitness for work.
The paragraph is not valid in the territory of the Russian Federation. - Orders of the Ministry of Health and Social Development of the Russian Federation of 03.03.2005 N 190, of 20.04.2010 N 253.
This entire article applies regardless of whether the leave is used after 5 1/2 months of work or before this period - in advance (Art. 12).
Example. The employee entered on January 15, 1931. He received full leave from July 15, and on August 15, 1931, resigned at his own request. The employer can withhold wages from him for 5 days, since the employee received 12 days of vacation for 12 months of work and of them did not finish 5 months.
(Art. 2 as amended by Resolution of the USSR NKT dated 12.12.1930 N 365)
3. If an employee resigned before the end of the working year for which he had already received leave or full compensation, then the new employer has 5 1/2-month working hours giving the right to leave, is calculated as follows:
a) if during retirement a deduction was made for all unworked days of vacation, then the 5 1/2-month period shall be considered from the day of receipt by the new tenant;
b) if upon dismissal, the employer, having the right to withhold, did not actually do it at all or in part, then the 5 1/2-month period begins when the employee works for the new employer for one month for each unworked vacation day for which wages remain uncontrolled (and with an 18- or 24-day vacation from the previous employer - one month for every one and a half or two days);
c) if upon dismissal the tenant did not have the right to withhold, then the 5 1/2-month period begins after the expiration of the working year for which vacation or full compensation was received from the previous employer; in this case, the one-year period also includes the time of a break in work after dismissal, as well as the time spent in work that does not give the right to leave (temporary, seasonal, etc.).
Example 1 (to paragraph "b"). The employer, firing the employee on August 15, 1931, had the right to withhold wages from him for 5 unworked days of vacation, but actually retained them only for 2 days (since the rest of the days of August the employee fell ill). On September 1, 1931, the employee entered the new employer. 5 1/2-month period for a new vacation will begin with him only on December 1, 1931 and expires on May 15, 1932.
Example 2 (to paragraph "c"). The employer on October 1, 1931 to lay off staff fired an employee who had served with him on March 1, 1931 and had already used his leave. On October 15, 1931, the employee entered the new employer. 5 1/2-month period for a new vacation will begin with him only on March 1, 1932 and expire on August 15, 1932.
(Art. 3 as amended by Decree of the USSR NKT dated 12.12.1930 N 365)
4. In the 5 1/2-month work period, giving the right to the next vacation, the following are counted:
a) actually worked time;
b) the time when the employee did not actually work, but the employer was required by law or a collective agreement to retain his position and earnings in whole or in part (including the time paid by the employer for forced absenteeism upon improper dismissal and subsequent reinstatement);
c) the time when the employee, while retaining his position, did not actually work, but received benefits from the insurance fund (illness, injury, pregnancy, childbirth, quarantine, caring for a sick family member).
The rest of the time during which the worker did not actually work, the employee does not count.
Example. The worker entered the workshop on March 5. From April 1 to April 15 he was ill and received benefits from the insurance fund during these days; on the days of May 1-5, he was called up for a short-term gathering in the territorial part; from June 1 to 10, he did not go to work for reasons recognized by the employer as valid, but without payment for the time missed. The right to leave from such an employee arises after 5 1/2 months and another 10 days, i.e. August 30th.
5. Not applicable. - Resolution of the State Committee for Labor of the USSR, Presidium of the All-Union Central Council of Trade Unions of December 29, 1962 N 377/30.
6. The receipt of vacation or compensation for it should be noted by the employer in the paybook and labor list - in accordance with the established forms of these documents. The same mark should be entered on the certificate issued to the employee upon dismissal.
In all these cases, the time period on which the leave or compensation is granted must be indicated (for example, “leave was used up to June 1, 1931”). If, upon dismissal of an employee, the employer has the right to withhold wages for unworked vacation days (Art. 2), then the note shall be added in the employee’s documents: "deduction for unworked vacation days was made in full" or "wages for so many days of vacation remained uncontrolled" .
(as amended by Resolution of the USSR tubing of December 14, 1930 N 365)
If the documents submitted by the employee do not contain instructions on the use of leave from previous work, the employer may require an appropriate certificate from the employee or request it from the previous place of work.
II. Vacation duration
7. The next vacation for adult workers is provided in all cases for 12 working days, with the addition of holidays attributable to vacation time.
The same amount provides full additional leave to workers employed in particularly harmful and dangerous conditions, according to the lists of professions established by the tubing or collective agreement, if the lists do not provide for vacation of a different duration.
8. Workers with irregular working hours may be granted, as compensation for workload and work outside working hours, additional leave.
The term of this vacation in state institutions and enterprises and mixed joint-stock companies with a predominant participation of state capital may not exceed 12 working days.
9. For minors who are under the age of 18 by the day the right to leave has arisen, as well as for all students of schools of industrial, mining and industrial apprenticeships and schools of mass professions - regular leave is granted in the amount of one calendar month (for example, from June 5 to July 5), but not less than 24 working days.
If these minors or students are allowed to work in especially harmful and dangerous professions listed in the tubing lists in the prescribed manner, then the next vacation is granted to them in total in the amount of one and a half calendar months, but not less than 36 working days.
III. Time and procedure for using vacation
10. Holidays are granted to employees at any time throughout the year in the order established by the RKK, and in the absence of the RKK, by agreement of the employer with the relevant trade union body.
The sequence of vacation grants for each year is established no later than January 1 of this year (for 1931 - no later than January 25, 1931).
(as amended by Resolution of the USSR tubing of January 19, 1931 N 21)
Vacation can be granted both sequentially to one employee after another, and simultaneously to all or some groups of employees (for example, if the enterprise is inevitably suspended for repair).
In the event of an unexpected suspension of work in an enterprise or institution or in its separate parts (due to an accident, natural disaster, etc.) by decision of the RKK, leave can be granted to all groups or certain groups of employees at the same time, with a departure from the previously established queue.
11. Holidays should not be confined exclusively to the 1st and 15th of each month, but should be distributed, if possible, evenly throughout the month.
12. When establishing a queue, provision may be made for granting leave to one or another employee until the right to leave (advance payment) has come to him.
Part two is excluded. - Resolution of the USSR tubing of 12.12.1930 N 365.
An example is excluded. - Resolution of the USSR tubing of 12.12.1930 N 365.
13. Holidays for minors are granted (in the order established by the ALAC) as a general rule in the summer. This does not deprive minors of the right to use leave at other times of the year.
14. There may be cases when the employee has the right to regular and additional leave arises at different times. In such cases, both vacations are granted to him at the same time completely on time determined by the RKK when establishing the general queue of vacations. At the same time, the period of work for a new vacation on the account of the next working year is calculated separately for the next and for additional holidays.
Example. An employee who arrived at the plant on March 10, 1930, is transferred to the harmful workshop from May 10. He has the right to another vacation on August 25, and on an additional leave only on October 25. In order of priority, he is granted both vacations from October 1. The following year, he has the right to new vacations again; on the first leave - on August 25, and on the second - on October 25.
15. Leave for a combined position is granted simultaneously with leave for the main position.
16. The employer is obliged to timely submit to the RKK (and in the absence of the RKK - to the union) a draft distribution of the vacation queue.
The employer must also notify each employee of the start and end time of his vacation. Notification shall be made no later than fifteen days by posting relevant announcements in workshops, workshops, departments and other places of work.
Workers receiving leave on an individual basis (for example, when the vacation period is postponed) must be warned by written notice.
If, according to the decision of the RKK, leave is granted to a group of workers out of turn due to an accident, natural disaster, etc., then notification of employees about the time of their vacation should be made no later than two days later.
17. The next or additional vacation should be deferred or extended in the following cases:
a) in the event of temporary disability of the employee, certified by the sick leave certificate (sick leave certificate);
(subparagraph "a" as amended by the Decree of the Council of Ministers of the USSR of 06.12.1956 N 1586)
b) if an employee is involved in the performance of state or public duties;
c) in case of arrest of an employee;
d) in other cases provided for by special regulations.
The employer has the right to require the employee to submit documents proving the impossibility of using the leave at the appointed time.
In addition, according to a special statement from the employee, the vacation should be postponed even if the employer did not timely inform the employee about the time of his vacation or did not pay wages for the vacation ahead of the vacation.
18. If the reasons that prevent the employee from going on vacation come before it begins, the new vacation period is determined by agreement between the employer and the employee.
If these reasons occurred during the employee’s vacation, the period of return from vacation will automatically be extended by the appropriate number of days, and the employee must immediately notify the employer.
These days are paid by the employer if, by law or contract, he was obliged to pay the employee’s wages during the execution of a state or public duty or during the arrest.
If the vacation is lengthened due to temporary disability, additional days are not paid by the employer.
Example 1. An employee went on vacation on September 15 for a month. From October 1 to 10, he was ill and received a sick leave and benefits from the insurance fund. Leave him should be extended until October 25, without payment by the tenant, because thanks to the grant of benefits, additional days have already been paid when granting leave. But if the employee has not received a sick leave, leave is not subject to extension.
Example 2. An employee, while on vacation, was summoned for 3 days to court by an expert. Holidays should be extended for 3 days with payment for these days on average earnings.
19. Transfer of all vacation in other cases, except as specified in Art. 17, is allowed by agreement of the employer and employee or by decision of the RKK, and the division into parts of the next vacation (including cumulative) by agreement of the employer and employee.
In the absence of these conditions, the transfer and separation of leave is not allowed.
IV. Retention of position and earnings during vacation
20. Dismissal of an employee who is on regular or additional leave is not allowed, with the exception of cases:
a) the complete liquidation of the enterprise or institution;
b) suspension of work in the enterprise or institution as a whole for a period of more than one month for industrial reasons;
c) the entry into force of a guilty verdict in a case directly related to work in a given enterprise or institution;
d) in the case when the dismissal is carried out in the order of cleaning the device in the first or second category.
21. During the employee’s stay in the next or additional vacation, he retains his average earnings.
Payments are made on the eve of the start of the vacation.
22. If during the employee’s stay on vacation his salary has changed, no recalculation with the employee in connection with this change is made, except in the case of an increase in the fixed rate or salary of the employee, paid on time. To this employee, an enterprise or institution is obliged to pay the difference between the old and new rates or salaries for the time from the day the payment is increased.
Recalculation is carried out in all cases of detection of incorrectness in the calculation of wages.
V. Summation of holidays and compensation for holidays
23. Failure to provide the next leave in the current year is allowed only if the provision of leave to this employee may adversely affect the normal course of work of the enterprise or institution.
For non-provision of leave, an agreement of the employer with the employee and approval of this agreement by the conflict-settlement commission is necessary. In case of failure to reach an agreement between the employer and the employee, the issue shall be resolved by the RKK in conflict.
24. Failure to provide regular leave for two consecutive years.
25. Failure to provide regular leave to minors, as well as additional leave in particularly harmful and dangerous professions, with the exception of cases of dismissal of an employee.
26. In addition to cases of direct non-provision of leave (Article 23), leave shall be considered unused (in whole or in part) through the fault of the employer also in the following cases:
a) if the vacation has remained unused due to the employer not taking measures to establish the vacation queue;
b) if the vacation, which was subject to mandatory transfer, was not rescheduled for a new term.
27. In case of non-use of the vacation (in whole or in part) due to the fault of the employer, the employee must be paid monetary compensation for the unused vacation or in the next year the vacation should be extended for an unused period.
To summarize the vacation, the agreement of the employer with the interested employee is sufficient. Summing the vacation in case of disagreement of the employer or employee, as well as any payment of monetary compensation for the vacation (except for cases of dismissal) is allowed only by decision of the ALAC.
The employee’s refusal to use the leave within the time period set for him without agreement with the employer, and if an agreement is not reached - without the permission of the RCM — does not give the employee the right to compensation or summation of the leave.
28. Upon dismissal of an employee who has not exercised his right to leave, he shall be paid compensation for unused leave.
At the same time, employees dismissed for any reason who have worked for this employer for at least 11 months and are set off against the period of work that gives them the right to leave, receive full compensation.
Workers who have worked from 5 1/2 to 11 months if they leave due to:
a) the liquidation of the enterprise or institution or its individual parts, the reduction of staff or work, as well as the reorganization or temporary suspension of work;
b) admission to active military service;
c) business trips in the prescribed manner to universities, technical schools, labor schools, preparatory departments at universities and training courses at universities and labor schools;
c) redeployment to another job at the proposal of the labor organs or the commissions that are with them, as well as party, Komsomol and professional organizations;
e) the revealed unfitness for work.
(part three as amended by the Resolution of the USSR tubing of 08/13/1930 N 267)
In all other cases, employees receive proportional compensation. Thus, proportional compensation is received by employees who have worked from 5 1/2 to 11 months if they are fired for any other reasons other than those indicated above (including those of their own free will), as well as all employees who have worked less than 5 1/2 months, regardless of the reasons for dismissal.
29. Full compensation is paid in the amount of the average earnings for the full vacation period.
Proportional compensation is paid in the following amounts:
a) during a vacation of 12 working days - in the amount of the average daily earnings for each month of work to be set off on time, giving the right to leave;
b) for a vacation of 24 working days and for a monthly vacation - in the amount of a two-day average earnings for each month;
c) for a month and a half vacation - in the amount of three days, and for a two-month vacation - in the amount of a four-day average earnings for each month.
When calculating the period of work that gives the right to compensation, section I of these Rules shall apply accordingly.
Example 1. An employee entered the work on June 1, 1930 and quits March 1, 1931. He has the right to receive compensation for 9 months of work, i.e. for holidays of 12 working days - for 9 days, for holidays of 24 working days and monthly leave - for 18 days, for one and a half months holiday - for 27 days, and for two months holiday - for 36 days based on daily average earnings.
Example 2. An employee went to work on March 1, and from June 1 was transferred to a workshop with harmful working conditions. Upon dismissal on August 1, he will receive compensation: for the next vacation - for 5 months of work, and for additional leave - for 2 months, and only seven-day earnings.
30. Compensation for vacation extended on the basis of a collective or written labor contract or on the basis of a mark in the paybook is paid according to the vacation period established in the contract or pay slip.
In other cases of optional extension of vacation by the law, the employer is obliged to pay compensation in accordance with the generally established vacation period.
When summing the holidays, extended holidays are included in the calculation in all cases in full.
31. In combination, compensation for vacations not used in a combined position is paid on a common basis.
32. Compensation for leave shall be paid at the end of the year of work, with the exception of cases of dismissal of the employee.
33. In the event of the death of an employee, vacation compensation is paid on a general basis.
VI. Final provisions
34. When paying wages or compensation for vacation, the average earnings are calculated in the manner prescribed by the Decree of the Council of People's Commissars of the USSR on July 25, 1935.
(Article 34 as amended by the Decree of the AUCCTU of 02.02.1936 (Protocol No. 164))
35. When calculating work periods that give the right to proportional additional leave or compensation for leave upon dismissal, surpluses of less than half a month are excluded from the calculation, and surpluses of at least half a month are rounded to the full month.
35-a. In the institutions and in the administrative apparatus of the enterprises of the socialized sector (in the boards of trusts, associations, etc., but not in factory administrations), these Rules apply with the following additions:
a) During each month, 8 to 9 percent of the total number of employees should go on vacation. In 1931, it is allowed to increase this rate from 12 May to 1 October to 12–15 percent (due to the incomplete preparedness of resorts and rest houses for work throughout 1931). Deviations from these standards are allowed only in bodies related to the maintenance of seasonal work.
The simultaneous provision of holidays to all employees of the institution or its individual parts is allowed only in cases where this is caused by production conditions (for example, when work is inevitably suspended for the duration of the repair).
Example. The institution has 200 employees. Consequently, 16 to 18 employees must go on vacation during each month. Since holidays should be provided evenly throughout the month, it is possible, for example, to provide holidays on the 3rd, 13th and 23rd or 7th, 17th and 27th dates, etc. - so that 5 - 6 employees go on vacation on each of these dates, and 16 - 18 workers in a month.
b) Extension of vacation due to unused days off is prohibited.
c) It is forbidden to grant leave without preservation of earnings, except when they are provided for by special laws (for example, laws on the distribution of young specialists to work at the end of universities and technical schools).
d) When going on vacation, transferring unfinished work to other employees is not allowed.
(Art. 35-a was introduced by Decree of the USSR NKT dated 19.01.1931 N 21)
Clause 36 actually lost force in connection with the publication of the Decree of the State Committee for Labor of the USSR, the Presidium of the All-Union Central Council of Trade Unions of 12.24.1960 N 1353/28, which approved the new List of industries, workshops, professions and positions with harmful working conditions, the work of which gives the right to additional leave and reduced working time day, as well as the Decree of the State Committee for Labor of the USSR, the Presidium of the All-Union Central Council of Trade Unions of December 29, 1962 N 377/30, which approved the Instruction on the procedure for applying the List.
36. In cases where special regulations have established special rules for the provision of leave for certain categories of workers (in particular, for workers in areas with particularly harmful climatic conditions), these Rules do not apply to the extent that they contradict these special regulations. The rest of these rules are applied on a common basis.
Special Rules on additional holidays for especially harmful climatic conditions are attached (not given).
37. Employees who came to this employer before July 16, 1929, 5 1/2 months of work, giving the right to leave from this employer in 1930, shall be considered from January 1, 1930
Employees who entered between July 16, 1929 and January 1, 1930, shall also be deemed to have expired on January 1, 1930 if, on the basis of a collective agreement, they acquired the right to proportional leave or proportional compensation in 1929. Otherwise, the period shall be considered from the day of employment.
Employees who are considered to have a period of work giving their right to leave for 1930 from January 1, 1930, the working year in further work with this employer is considered from January 1 to January 1 (i.e., coincides with the calendar year).
Example. The worker, who worked at the factory for 2 years, was on regular leave in 1928, and the leave of 1929 was transferred to him in 1930. In 1930, he will receive cumulative leave, and the period of work for leave in 1930 is considered to be January 1, 1930
Upon dismissal of his own free will on October 1, 1930, before using the leave, the employee will receive full compensation for the leave of 1929 and, in addition, proportional compensation for 9 months of work in 1930 starting from January 1.
38. When granting holidays in enterprises and institutions in 1930 and compensating for them, these Rules do not apply to employees employed in them who by the day of the entry into force of these Rules have already used their leave for 1930 or are on leave for 1930 .
39. For employees who were dismissed by the employer in 1930 before the entry into force of these Rules and entered the new employer in 1930 - these Rules apply as follows:
a) if the employee was dismissed with proportional compensation for the part of 1930, then the Rules apply to him on a general basis;
b) if the employee was dismissed after receiving full leave or full compensation for 1930, and in 1929 he also received somewhere the right to full leave or full compensation, then the period of work for a new leave shall be considered from January 1, 1931;
c) if the employee was dismissed after receiving full leave or full compensation for 1930, and in 1929 he never received the right to full leave or full compensation, then the period of work for a new leave is considered from the day the year ends after entering the work previous employer.
Example. The employee first entered a hired job on October 1, 1929. Since he worked in 1929 for only 3 months, he did not receive any leave or compensation in 1929. On April 1, 1930, he quit with full compensation for 1930, and on June 1, 1930, he joined the new employer. The term of work for a new vacation will be considered only from October 1, 1930, when the blow job is a year from the date of joining the previous employer.
40. Canceled:
1) Decree of the USSR tubing of August 14, 1923 N 36 - Rules for the next in additional holidays ("Proceedings of the USSR tubing and RSFSR", 1923, N 4/28)
2) clarification of the USSR tubing of August 28, 1923 N 56 on the interpretation of art. 18 Rules on regular and additional holidays ("Proceedings of the tubing of the USSR and the RSFSR", 1928, N 4/28);
3) clarification of the USSR tubing of August 23, 1924 N 357/30 on the interpretation of art. Art. 12 - 14 of the Rules on regular and additional holidays ("Proceedings of the tubing of the USSR", 1924, N 31);
4) clarification of the USSR tubing of October 24, 1924 N 446/38 on the procedure for calculating compensation for unused vacation and maintenance during the vacation (Izvestia NTK USSR, 1924, N 43);
5) clarification of the USSR tubing of June 16, 1926 N 132/350 on the duration of vacations for persons under 18 years of age and employed in professions that give the right to additional leave on the harmfulness of work ("Proceedings of the USSR tubing", 1926, N 24-25);
6) clarification of the USSR tubing of April 30, 1929 N 155 on the duration of the vacation ("Proceedings of the USSR tubing", 1929, N 20-21).
41. In Art. 1 of the Decree of the USSR tubing of February 21, 1928 on working conditions of overgrown pupils of schools of factory and mining and industrial apprenticeship (Izvestia of the USSR tubing, 1928, No. 11), the word "vacations" is deleted.
People's Commissar of Labor of the USSR
ANGLANOV
Member of the Board of tubing of the USSR
and Head. Legal
Department of tubing of the USSR
SERINA
Agreed with the AUCCTU
April 30, 1930
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