In accordance with clause 28 of the rules approved by the decree of the NKT of the USSR dated 04/30/1930 No. 169, upon dismissal of an employee who has NOT USED his right to leave, he is paid compensation for the unused vacation. At the same time, employees who are dismissed for whatever reason, who have worked for this employer for at least 11 months, which are subject to offset in the period of work that gives the right to leave, receive full compensation. If an employee has worked for 11 months and he was given, for example, 10 days of annual basic paid leave (that is, he used his right to leave), then what compensation is entitled to such an employee upon dismissal?
Answer
Answer to the question:
1. First, the employee's seniority is calculated using all the required rounding off, and only then the right to compensation is determined.
2. From due to the employee, based on his length of service, the number of vacation days must be deducted from the vacation already granted for the given working year (part). And the resulting difference upon dismissal is subject to compensation.
3. If the employee's vacation is 28 days, then with 11 months of work experience for the last working year, 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 properly compensate for unused vacations upon dismissal, determine their number. Then multiply by the employee's average earnings. In the recommendation, we will reveal the algorithm of actions at each stage.
Calculation procedure
What needs to be considered when calculating the number of unused vacation days when calculating compensation for unused vacation upon dismissal
If an employee has worked in the organization for less than 11 months during the 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 hours worked:
A question from practice: how to determine a half-month period for calculating compensation for unused vacation
Upon dismissal, an employee who did not use his right to vacation is entitled to monetary compensation for all unused vacation (, Rules on regular and additional leave approved).
When calculating the terms of work that give the right to proportional 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 up to a full month. Such a rule is established by the Rules approved.
In this case, 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 an organization for 14 days, that is, less than half a month, then he is not entitled to compensation for unused vacation.
A question from practice: is it necessary to round up to full days the fractional number of days for which compensation must be paid for unused leave associated with dismissal
When calculating the number of unused vacation days for which you need to pay compensation, you may get a fractional number of days. For example, if an employee needs to be compensated for five months worked, the result is 11.67 days (28 days: 12 months × 5 months).
The legislation does not provide a mechanism for rounding the number of unused vacation days. Therefore, this question remains at the discretion of the organization.
If an 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 ().
An organization may also choose not to round the number of unused vacation days to an integer. For more on this, see.
A question from practice: to how many digits after the decimal point it is possible to round off the fractional number of days for which it is necessary to pay compensation for unused leave to a dismissed employee
The legislation does not contain an unambiguous answer to this question; in practice, it is most often rounded up to two figures.
When calculating the number of unused vacation days for which you need to pay compensation, you may get a fractional number of days. For example, if an employee needs to pay compensation for 10 months worked, that would be 23.3333 days (28 days: 12 months × 10 months). At the same time, the labor legislation does not say how many digits after the decimal point the fractional number of unused vacation days should be rounded. 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 should be rounded up, even if the preceding digit is less than five.
Compensation for unused vacation
Compensation for unused leave associated with dismissal is the average earnings of an employee (Art., Labor Code of the Russian Federation).
Regardless of whether the employee's working time is recorded in days or he has a summarized recording of working hours, the total amount of compensation for unused leave associated with dismissal, calculate by the formula:
Best regards and wishes for a comfortable work, Elena Petrichenko,
Expert Systems Personnel
These Rules are valid to the extent that they do not contradict the Labor Code of the Russian Federation.
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(Issued 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 for 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 date of employment, i.e. once a working year. The right to the next regular vacation on account of the new working year arises from the employee after 5 months from the date of the end of the previous working year. Employees who joined this employer in 1929 or earlier are entitled to leave with compliance. If an employee is transferred at the suggestion of a labor body or a commission under it, or at the suggestion of a party, Komsomol or professional organization from one enterprise or institution to another, without interruption in work, then the time worked for the previous employer - provided that the employee, at his own request, did not receive compensation for unused vacation during this time (part was additionally included by the resolution of the People's Commissariat of Labor of the USSR No. 32 dated January 31, 1931). Example. The worker entered the plant on February 3, 1930. On July 18, 1930, he receives the right to another vacation on account of the year of his work, i.e. until February 3, 1931. The right to the next vacation in the account of the second year of work until February 3, 1932, he will receive 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 employer has the right to make a deduction from the salary for unworked vacation days. Withholding is not allowed if the employee is dismissed due to:
A) liquidation of an 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) sending in the established order to a university, technical school, a workers 'school, a preparatory department at a higher educational institution, or to training courses for a university or a workers' school;
D) transfer to another job at the suggestion of a labor body or a commission under it, as well as a party, Komsomol or professional organization;
E) revealed unsuitability for work. The paragraph is not valid on the territory Russian Federation- Order of the Ministry of Health and Social Development of Russia dated April 20, 2010 No. 253. - See previous edition
Paragraph 3 of clause 2 of these Rules is recognized as invalid on the territory of the Russian Federation on the basis of the order of the Ministry of Health and Social Development of Russia dated March 3, 2005 No. 190.
Order of the Ministry of Health and Social Development of Russia dated March 3, 2005 No. 190 was returned without consideration of the Ministry of Justice of the Russian Federation (letter of the Ministry of Justice of Russia dated March 31, 2005 No. 01/2337-VYa) and canceled on the basis of Order No. 252 of the Ministry of Health and Social Development of Russia dated April 20, 2010.
This entire article applies regardless of whether the vacation is used after 5 1/2 months of work or before this period - in advance ().
Example. The worker entered on January 15, 1931. He received from 15 July full vacation, and on August 15, 1931, he quit his job. on their own... The employer can deduct 5 days' wages from him, since the employee received 12 vacation days in 12 months of work and did not complete 5 months of them.
(Article as amended. - See previous edition)
3. If the employee quit before the end of the working year for which he has already received vacation or full compensation, then the new employer has 5 1/2 months of work, which gives the right to vacation, is calculated as follows:
A) if, upon dismissal, a deduction was made for all unworked vacation days, then 5 1/2 months is considered from the date of receipt by the new employer;
B) if, upon dismissal, the employer, having the right to retention, did not actually make 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 day of leave for which the wages remained unreserved (and with 18- or 24-day leave from the previous employer - one month for every one and a half or two days);
C) if, upon dismissal, the employer did not have the right to withhold, then the 5 1/2 month period begins after the expiration of the working year for which the vacation or full compensation was received from the previous employer; in this case, the period of a break in work after dismissal, as well as the time spent at work that does not give the right to leave (temporary, seasonal, etc.) are also included in the annual period. Example 1 (to item "b"). The employer, dismissing the employee on August 15, 1931, had the right to deduct his wages for 5 unworked days of vacation, but in fact withheld it only for 2 days (since the employee was ill on the rest of August). On September 1, 1931, the worker joined a new employer. 5 1/2 months for a new vacation will begin with him only from December 1, 1931 and will expire on May 15, 1932. Example 2 (to item "c"). On October 1, 1931, the employer dismissed an employee who had served with him since March 1, 1931 and had already used his leave to cut staff. On October 15, 1931, the worker entered a new employer. 5 1/2 months for a new vacation will begin with him only on March 1, 1932 and will expire on August 15, 1932.
(Article as amended by the Resolution of the People's Commissariat of Labor of the USSR No. 365 dated December 14, 1930. - See the previous edition)
4. In the 5-month period of work, which gives 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 obliged by law or a collective agreement to retain his position and earnings in full or in part (including the time of forced absence paid by the employer in case of improper dismissal and subsequent reinstatement at work);
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 credited to the employee. Example. The worker entered the workshop on March 5th. 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 unit; From June 1 to June 10, he did not go to work for reasons recognized by the employer as valid, but without payment for the missed time. The right to leave for such an employee arises after 5 months and another 10 days, i.e. August 30.
5. Not applicable - joint resolution of the USSR State Committee for Labor and the All-Union Central Council of Trade Unions Presidium of December 29, 1962 No. 377/30. - See previous edition.
6. Receipt of leave or compensation for it must be noted by the employer in the paybook and labor list - in accordance with the established forms of these documents. The same mark must be entered in the certificate issued to the employee upon dismissal. In all these cases, the period for which the leave or compensation was granted must be indicated (for example, "I took 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 a mark is added in the employee's documents: "the deduction for unworked vacation days has been fully paid" or "wages for so many vacation days remained unreserved" (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 a corresponding certificate from the employee or request it himself from former place work.
II. Vacation duration
7. Regular leave for adult employees is provided in all cases for 12 working days, with the addition of days off falling on vacation time. In the same amount, full additional leave is granted to workers employed in especially harmful and dangerous conditions, according to the lists of professions established by the CNT or a collective agreement, unless these lists provide for a different length of leave.
8. Employees with irregular working hours may be provided with additional leave as compensation for workload and work after hours. The duration of this leave in government agencies and enterprises and mixed joint stock companies with a predominant state capital participation cannot exceed 12 working days.
9. Minor employees who have not reached the age of 18 by the day of the emergence of the right to leave, as well as all students of factory and mining apprenticeships and schools of mass professions - the next vacation 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 admitted in accordance with the established procedure to work in especially harmful and dangerous professions listed in the lists of the NKT, then the next leave is granted to them in a total of one and a half calendar months, but not less than 36 working days.
III. Time and procedure for using vacation
10. Holidays are provided to employees at any time throughout the year in the order of the queue established by the RKK, and in the absence of the RKK - by agreement of the employer with the relevant body of the trade union. The sequence for granting vacations for each year is established no later than January 1 of this year (for 1931 - no later than January 25, 1931) (part as amended by the resolution of the USSR People's Commissariat of Labor No. 21 dated January 19, 1931 - see previous edition). Leave can be provided both sequentially to one employee after another, and simultaneously to all or some groups of employees (for example, when the inevitable suspension of the enterprise for repairs). In the event of an unexpected suspension of work in an enterprise or institution or in its individual parts (due to an accident, natural disaster, etc.), by the decision of the RKK, leave may be provided to all groups or some groups of employees at the same time, with a deviation from the previously established queue.
11. Holidays should not be limited exclusively to the 1st and 15th days of each month, but should be distributed, if possible, evenly throughout the month.
12. When establishing a queue, it may be envisaged to provide a vacation to one or another employee before the onset of his right to vacation (in advance). The part was excluded by the decree of the People's Commissariat of Labor of the USSR of December 14, 1930 No. 365. - See previous edition. The example was excluded by the decree of the People's Commissariat of Labor of the USSR of December 14, 1930 No. 365. - See previous edition.
13. Holidays underage workers provided (in the order of the queue established by the RKK) according to general rule summer. This does not deprive minors of the right to take leave at other times of the year.
14. There may be cases when an employee has the right to regular and additional leave at different times. In such cases, both leaves are provided to him at the same time in full within the period determined by the RKK when establishing the general queue of leaves. In this case, the term of work for a new vacation on account of the next working year is calculated separately for the next and additional vacation. Example. An employee who entered the plant on March 10, 1930, is transferred to a hazardous shop from May 10. He is entitled to another vacation on August 25, and to an additional one - only on October 25. On a first-come, first-served basis, he is granted both leave from 1 October. Next year, he has the right to new vacations again; for the first vacation - August 25, and for the second - October 25.
15. Leave for the combined position is granted simultaneously with the leave for the main position.
16. The employer is obliged to promptly submit for consideration by the RKK (and in the absence of the RKK - for the consideration of the trade union) a draft distribution of the vacation queue. The employer is also obliged to notify each employee about the time of the beginning and end of his vacation. Notification is made no later than fifteen days in advance by posting appropriate notices in workshops, workshops, departments and other places of work. Employees who receive leave on an individual basis (for example, when postponing the leave period) must be warned by written notice. If, by decision of the RKK, leave is granted to a group of employees out of turn due to an accident, natural disaster, etc., then the employees must be notified of the time of their leave no later than two days in advance.
17. Regular or additional vacation must be rescheduled for another period or extended in the following cases:
A) in case of temporary disability of an employee, certified by a sick leave (sick leave) (subparagraph as amended by the Resolution of the Council of Ministers of the USSR No. 1586 dated December 6, 1956 - see the previous edition);
B) in the case of involving an employee 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 demand from the employee the submission of documents proving the impossibility of using the vacation at the appointed time. In addition, at the special request of the employee, the vacation must be postponed even if the employer did not timely notify the employee about the time of his vacation or did not pay the salary for the vacation in advance before the start of the vacation.
18. If the reasons preventing the employee from going on vacation occurred before its start, then the new vacation period is determined by agreement between the employer and the employee. If these reasons occurred during the employee's vacation, then the period for returning from vacation is automatically extended by the appropriate number of days, and the employee must immediately notify the employer about this. These days are paid by the employer if, according to the law or contract, he was obliged to pay wages to the employee during the execution of the state or public duty or during the arrest. When the leave is extended due to temporary incapacity for work, the employer does not pay the additional days. Example 1. An employee went on vacation on September 15, for a period of one month. From October 1 to October 10, he was ill and received a sick leave and an allowance from the insurance fund. His vacation must be extended until October 25, without payment by the employer, since thanks to the grant of the allowance, the additional days have already been paid for when the vacation is granted. But if the employee has not received a sick leave, the vacation cannot be extended. Example 2. An employee, while on vacation, was summoned to court by an expert for 3 days. The vacation must be extended by 3 days with payment for these days according to the average earnings.
19. The transfer of the entire vacation in other cases, except for those specified in, is allowed by agreement between the employer and the employee or by the decision of the RKK, and division into parts of the next vacation (including the summarized one) - by agreement between the employer and the employee. In the absence of the specified conditions, the transfer and division of vacation is not allowed.
IV. Retention of position and earnings while on vacation
20. Dismissal of an employee who is on regular or additional leave is not allowed, except for the following cases:
A) the complete liquidation of an enterprise or institution;
B) suspension of work in the enterprise or institution as a whole for a period of more than one month for production 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 apparatus in the first or second category.
21. During the stay of the employee on the next or additional leave, his average earnings are retained. Payment of earnings is made on the eve of the start of the vacation.
22. If during the employee's vacation his salary has changed, then the recalculation with the employee in connection with this change is not made, except for the case of an increase in the fixed rate or the salary of an employee who is paid by time. The enterprise or institution is obliged to pay this employee the difference between the old and the new rate or salary for the time from the day of the increase in pay. Recalculation is carried out in all cases of detection of irregularities in the calculation of wages.
V. Summation of vacations and compensation for vacations
23. Failure to grant the next vacation in the current year is allowed only if the granting of vacation to this employee may adversely affect the normal course of work of the enterprise or institution. For non-provision of leave, an agreement between the employer and the employee is required and the approval of this agreement by the pricing and conflict commission. In case of failure to reach an agreement between the employer and the employee, the issue is resolved by the RKK in a conflict manner.
24. Failure to grant regular vacations for two consecutive years is prohibited.
25. Failure to grant regular vacations to minors, as well as additional vacations in especially harmful and dangerous professions, with the exception of cases of dismissal of an employee, is prohibited.
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 remained unused due to the failure of the employer to take measures to establish a queue of vacations;
B) if the vacation, which was subject to mandatory postponement, was not postponed for a new period.
27. In case of non-use of the vacation (in whole or in part) through the fault of the employer, the employee must be paid monetary compensation for the unused vacation or the next year the vacation must be extended for an unused period. To summarize the vacation, an agreement between the employer and the employee concerned is sufficient. Summation of vacation in case of disagreement of the employer or employee, as well as any payment monetary compensation for vacation (except in cases of dismissal) is allowed only by decision of the RKK. The employee's refusal to use the vacation within the period set for him without agreement with the employer, and if an agreement is not reached, without the decision of the RKK does not give the employee the right to compensation or summation of the vacation.
28. Upon dismissal of an employee who has not used his right to vacation, he is paid compensation for the unused vacation. At the same time, employees who are dismissed for whatever reason, who have worked for this employer for at least 11 months, which are subject to offset in the period of work that gives the right to leave, receive full compensation.
Full compensation is also received by employees who have worked from 5 to 11 months if they leave as a result (paragraph as amended by the resolution of the People's Commissariat of Labor of the USSR of August 13, 1930 No. 267 - see the previous edition):
A) liquidation of an enterprise or institution or its individual parts, reduction of staff or work, as well as reorganization or temporary suspension of work (the item is additionally included);
B) admission to active military service (the item was additionally included by the decree of the People's Commissariat of Labor of the USSR of August 13, 1930, No. 267);
C) sending in the established order to universities, technical schools, workers 'schools, preparatory departments at universities and courses for training in universities and workers' faculties (the item was additionally included by the resolution of the People's Commissariat of Labor of the USSR of August 13, 1930, No. 267);
D) transfer to other work at the suggestion of labor bodies or commissions attached to them, as well as party, Komsomol and professional organizations (the item was additionally included by the resolution of the People's Commissariat of Labor of the USSR of August 13, 1930, No. 267);
E) revealed unsuitability for work (the item was 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, workers receive proportionate compensation. Thus, employees who have worked for 5 to 11 months receive proportional compensation if they leave for any other reason other than the above (including 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 duration of the full vacation. Proportional compensation is paid in the following amounts:
A) with a vacation of 12 working days - in the amount of the daily average earnings for each month of work, subject to offset in the period giving the right to vacation;
B) with a vacation of 24 working days and with a monthly vacation - in the amount of two days' average earnings for each month;
C) with a one and a half month vacation - in the amount of three days, and with a two-month vacation - in the amount of four days' average earnings for each month. When calculating the term of work, entitling to compensation shall apply accordingly. Example 1. An employee entered the job on June 1, 1930 and leaves the job on March 1, 1931. He has the right to receive compensation for 9 months of work, i.e. for a vacation of 12 working days - in 9 days, for a vacation of 24 working days and a monthly vacation - in 18 days, for a one and a half month vacation - in 27 days, and for a two-month vacation - in 36 days based on the daily average earnings.
Example 2. An employee went to work on March 1, and from June 1 he was transferred to the workshop from harmful conditions work. 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 days' earnings.
30. Compensation for extended leave on the basis of collective or written employment contract or on the basis of a mark in the paybook, it is paid according to the vacation period specified in the contract or paybook. In other cases of optional extension of the leave by law, the employer is obliged to pay compensation in accordance with the generally established period of leave. When summing up vacations, extended vacations are included in the calculation in all cases in full.
31. In case of part-time work, compensation for the leave not used for the combined position is paid on a general basis.
Clause 31 is no longer valid in relation to employees salary which at the main place of work exceeds 60 rubles a month - the decree of the USSR Council of Ministers of March 21, 1961 No. 254.
32. Leave compensation is paid at the end of the year of employment, except in cases of employee dismissal.
Hello, to determine how many days the compensation is due, do the following:
Calculate the length of service for providing leave 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 rounded up to a full month if there are 15 or more. Read more about the length of service for leave here. Determine the total number of vacation days that are due to the employee for the entire period of work. Determine the total number of vacation days provided for this period. Determine the amount of unused vacation (from the value in item 2, subtract the value in item 3) ...
in accordance with article 115 Labor Code RF (hereinafter referred to as the Labor Code of the RF), the duration of the main annual 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 vacations (regardless of the number of years worked for which vacations 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 must be paid is determined in the manner prescribed by the Rules "On regular and additional vacations" approved by the People's Commissariat of Labor of the USSR dated April 30, 30 No. 169. In accordance with clause 28 of these Rules, if the employee has worked for the employer for at least 11 months, subject to accounting for the period of work that gives the right to leave, then the employee must be paid compensation for the full vacation period in the amount of average earnings (full compensation). In cases where the employee has worked for the employer for less than 11 months, then proportionate compensation is paid to him. Clause 29 of the named Rules establishes that proportional compensation is calculated in the amount of the daily average earnings for each month of work, which is subject to accounting for the period of work that gives the right to leave. The amount of compensation for each month worked is determined by dividing the number of days of the main annual paid leave (currently 28 days) by 12 (the number of months in a year). At the same time, the term of work, which is less than half a month, is not taken into account, and more than half a month is rounded up to a whole month.
Thus, the number of unused vacation days subject to compensation to the employee for each month worked can be determined using the formula No. 1: 28/12 = 2.33 paid vacation days. If several months worked are subject to compensation, 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 resulting number is not rounded to an integer.
The procedure for calculating the average wage (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 provided for by the remuneration system (not of a one-time nature) 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, approved by the Resolution of the Ministry of Labor of the Russian Federation of 05/17/2000 No. 38
Regular and additional vacations
Rules for regular and additional vacations
(about vacations and other types of leisure time)
REGULATIONS
ABOUT REGULAR AND ADDITIONAL HOLIDAYS
(Published on the basis of the Decree of the Council of People's Commissars of the USSR
dated February 2, 1930 - Protocol No. 5/331, p. 28)
(as amended by the Resolutions of the NKT of the USSR
from 08/13/1930 N 267, from 12/14/1930 N 365,
from 01/19/1931 N 21, from 01/31/1931 N 32,
Resolutions of the All-Union Central Council of Trade Unions of 02.02.1936 (Protocol No. 164),
Resolutions of the USSR Council of Ministers dated 06.12.1956 N 1586,
Resolutions of the State Committee for Labor of the USSR, the Presidium of the All-Union Central Council of Trade Unions
dated 12/29/1962 N 377/30, Orders
Ministry of Health and Social Development of the Russian Federation of 03.03.2005 N 190,
from 20.04.2010 N 253)
I. Right to leave
1. Every employee who has worked for this employer for at least 5 1/2 months has the right to receive another vacation.
The next leave is granted once during the year of the employee's work with the given employer, counting from the date of employment, that is, once per working year.
The right to the next regular 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 under it, or at the suggestion of a party, Komsomol or professional organization from one enterprise or institution to another, without interruption in work, then the time worked for the previous employer - provided that the employee voluntarily did not receive compensation for unused vacation during this time.
(part five was introduced by the Decree of the NKT of the USSR of 01/31/1931 N 32)
Example. The worker entered the plant on February 3, 1930. He receives on July 18, 1930 the right to another vacation 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 until 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 employer has the right to make a deduction from the salary for unworked vacation days.
Withholding is not allowed if an employee is dismissed due to: a) liquidation of an 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) sending in the established order to a higher educational institution, technical school, a workers 'school, a preparatory department at a higher educational institution, or to training courses at a higher educational institution or at a workers' faculty; d) transfer to another job at the suggestion of a labor body or a commission affiliated with it, as well as a party, Komsomol or professional organization; e) revealed unsuitability for work.
The paragraph does not apply on 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 vacation is used after 5 1/2 months of work or before this period - in advance (Art. 12).
Example. The worker entered on January 15, 1931. He received full leave from July 15, and on August 15, 1931 he resigned of his own free will. The employer can deduct 5 days' wages from him, since the employee received 12 vacation days in 12 months of work and did not complete 5 months of them.
(Article 2 as amended by the Resolution of the NKT of the USSR of 12/14/1930 N 365)
3. If the employee quit before the end of the working year for which he has already received vacation or full compensation, then the new employer has 5 1/2 months of work, which gives the right to vacation, is calculated as follows:
a) if, upon dismissal, a deduction was made for all unworked vacation days, then 5 1/2 months is considered from the date of receipt by the new employer;
b) if upon dismissal the employer, having the right to retention, did not actually make it at all or in part, then 5 1/2 months period begins when the employee works for the new employer for one month for each unworked day of leave for which the wages remained unretained (and with 18- or 24-day leave from the previous employer - one month for every one and a half or two days);
c) if, upon dismissal, the employer did not have the right to withholding, then the 5 1/2 month period begins after the expiration of the working year for which the vacation or full compensation was received from the previous employer; in this case, the period of a break in work after dismissal, as well as the time spent at work that does not give the right to leave (temporary, seasonal, etc.) are also included in the annual period.
Example 1 (to item "b"). The employer, dismissing the employee on August 15, 1931, had the right to deduct his wages for 5 unworked days of vacation, but in fact withheld it only for 2 days (since the employee was ill on the rest of August). On September 1, 1931, the worker joined a new employer. 5 1/2 months for a new vacation will begin with him only from December 1, 1931 and will expire on May 15, 1932.
Example 2 (to item "c"). On October 1, 1931, the employer dismissed an employee who had served with him since March 1, 1931 and had already used his leave to cut staff. On October 15, 1931, the worker entered a new employer. 5 1/2 months for a new vacation will begin with him only on March 1, 1932 and will expire on August 15, 1932.
(Article 3 as amended by the Resolution of the NKT of the USSR of 12/14/1930 N 365)
4. The 5 1/2-month term of work, which gives the right to the next vacation, includes:
a) actually worked time;
b) the time when the employee did not actually work, but the employer was obliged by law or a collective agreement to retain his position and earnings in full or in part (including the time when the employer paid for forced absence from improper dismissal and subsequent reinstatement at work);
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 is not credited to the worker.
Example. The worker entered the workshop on March 5th. From April 1 to April 15, he was ill and received benefits from the insurance fund during these days; on days 1 - 5 May, he was called up for a short-term gathering in the territorial unit; From June 1 to June 10, he did not go to work for reasons recognized by the employer as valid, but without payment for the missed time. The right to leave for such an employee arises after 5 1/2 months and another 10 days, i.e. August 30.
5. Not applicable. - Resolution of the USSR State Labor Committee, the All-Union Central Council of Trade Unions Presidium of December 29, 1962 N 377/30.
6. Receipt of leave or compensation for it must be noted by the employer in the paybook and labor list - in accordance with the established forms of these documents. The same mark must be entered in the certificate issued to the employee upon dismissal.
In all these cases, the period for which the vacation or compensation was granted must be indicated (for example, "the vacation 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 (Article 2), then a note is added to the employee's documents: "the deduction for unworked vacation days has been made in full" or "wages remained unreserved for so many vacation days" ...
(as amended by the Decree of the NKT of the USSR of 12/14/1930 N 365)
If the documents submitted by the employee do not contain instructions on the use of leave from the previous work, the employer may require a corresponding certificate from the employee or request it himself from the previous place of work.
II. Vacation duration
7. Regular leave for adult employees is provided in all cases for 12 working days, with the addition of days off falling on vacation time.
In the same amount, full additional leave is granted to workers employed in especially harmful and dangerous conditions, according to the lists of professions established by the CNT or a collective agreement, unless these lists provide for a different length of leave.
8. Employees with irregular working hours may be provided with additional leave as compensation for workload and work after hours.
The period of this leave in state institutions and enterprises and mixed joint-stock companies with a predominant participation of state capital cannot exceed 12 working days.
9. Minor employees who have not reached the age of 18 by the day the right to vacation arises, as well as all students of factory and mining apprenticeships and schools of mass professions - the next vacation 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 admitted in accordance with the established procedure to work in especially harmful and dangerous professions listed in the lists of the NKT, then the next leave is granted to them in a total of one and a half calendar months, but not less than 36 working days.
III. Time and procedure for using vacation
10. Holidays are provided to employees at any time throughout the year in the order of the queue established by the RKK, and in the absence of the RKK - by agreement of the employer with the relevant body of the trade union.
The sequence for granting vacations for each year is established no later than January 1 of this year (for 1931 - no later than January 25, 1931).
(as amended by the Decree of the NKT of the USSR dated 01.19.1931 N 21)
Leave can be provided both sequentially to one employee after another, and simultaneously to all or some groups of employees (for example, when the inevitable suspension of the enterprise for repairs).
In the event of an unexpected suspension of work in an enterprise or institution or in its individual parts (due to an accident, natural disaster, etc.), according to the decision of the RKK, leave may be provided to all groups or some groups of employees at the same time, with a deviation from the previously established queue.
11. Holidays should not be limited exclusively to the 1st and 15th days of each month, but should be distributed, if possible, evenly throughout the month.
12. When establishing a queue, it may be envisaged to provide a vacation to one or another employee before the onset of his right to vacation (in advance).
Part two is excluded. - Decree of the NKT of the USSR of 12/14/1930 N 365.
Example excluded. - Resolution of the NKT of the USSR of 12/14/1930 N 365.
13. Vacations for minors are provided (in the order of the queue established by the RKK) as a general rule in the summer. This does not deprive minors of the right to take leave at other times of the year.
14. There may be cases when an employee has the right to regular and additional leave at different times. In such cases, both leaves are provided to him at the same time in full within the period determined by the RKK when establishing the general queue of leaves. In this case, the term of work for a new vacation on account of the next working year is calculated separately for the next and additional vacation.
Example. An employee who entered the plant on March 10, 1930, is transferred to a harmful shop from May 10. He is entitled to another vacation on August 25, and to an additional one - only on October 25. On a first-come, first-served basis, he is granted both leave from 1 October. Next year, he has the right to new vacations again; for the first vacation - August 25, and for the second - October 25.
15. Leave for the combined position is granted simultaneously with the leave for the main position.
16. The employer is obliged to promptly submit for consideration by the RKK (and in the absence of the RKK - for the consideration of the trade union) a draft distribution of the vacation queue.
The employer is also obliged to notify each employee about the time of the beginning and end of his vacation. Notification is made no later than fifteen days in advance by posting appropriate notices in workshops, workshops, departments and other places of work.
Employees who receive leave on an individual basis (for example, when postponing the leave period) must be warned by written notice.
If, by decision of the RKK, leave is granted to a group of employees out of turn due to an accident, natural disaster, etc., then the employees must be notified of the time of their leave no later than two days in advance.
17. Regular or additional vacation must be rescheduled for another period or extended in the following cases:
a) in case of temporary incapacity for work of an employee, certified by a sick leave (sick leave);
(item "a" as amended by the Resolution of the Council of Ministers of the USSR dated 06.12.1956 N 1586)
b) in the case of involving an employee 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 demand from the employee the submission of documents proving the impossibility of using the vacation at the appointed time.
In addition, at the special request of the employee, the vacation must be postponed even if the employer did not promptly notify the employee about the time of his vacation or did not pay the salary for the vacation in advance before the start of the vacation.
18. If the reasons preventing the employee from going on vacation occurred before its start, then the new vacation period is determined by agreement between the employer and the employee.
If these reasons occurred during the employee's vacation, then the period for returning from vacation is automatically extended by the appropriate number of days, and the employee must immediately notify the employer about this.
These days are paid by the employer if, according to the 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.
When the leave is extended due to temporary incapacity for work, the employer does not pay the additional days.
Example 1. An employee went on vacation on September 15, for a period of one month. From October 1 to October 10, he was ill and received a sick leave and an allowance from the insurance fund. His vacation must be extended until October 25, without payment by the employer, since thanks to the grant of the allowance, the additional days have already been paid for when the vacation is granted. But if the employee has not received a sick leave, the vacation cannot be extended.
Example 2. An employee, while on vacation, was summoned to court by an expert for 3 days. The vacation must be extended by 3 days with payment for these days according to the average earnings.
19. Transferring the entire vacation in other cases, except for those specified in Art. 17, is allowed by agreement between the employer and the employee or by the decision of the RKK, and division into parts of the next vacation (including the summarized one) - by agreement of the employer and employee.
In the absence of the specified conditions, the transfer and division of vacation is not allowed.
IV. Retention of position and earnings while on vacation
20. Dismissal of an employee who is on regular or additional leave is not allowed, except for the following cases:
a) complete liquidation of an enterprise or institution;
b) suspension of work in the enterprise or institution as a whole for a period of more than one month for production reasons;
c) 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 apparatus in the first or second category.
21. During the stay of the employee on the next or additional leave, his average earnings are retained.
Payment of earnings is made on the eve of the start of the vacation.
22. If during the employee's vacation his salary has changed, then the recalculation with the employee in connection with this change is not made, except in the case of an increase in the fixed rate or the salary of an employee who is paid by time. The enterprise or institution is obliged to pay this employee the difference between the old and the new rate or salary for the time from the day of the increase in pay.
Recalculation is carried out in all cases of detection of irregularities in the calculation of wages.
V. Summation of vacations and compensation for vacations
23. Failure to grant the next vacation in the current year is allowed only if the granting of vacation to this employee may adversely affect the normal course of work of the enterprise or institution.
For non-provision of leave, an agreement between the employer and the employee is required and the approval of this agreement by the pricing and conflict commission. In case of failure to reach an agreement between the employer and the employee, the issue is resolved by the RKK in a conflict manner.
24. Failure to grant regular vacations for two consecutive years is prohibited.
25. Failure to grant regular vacations to minors, as well as additional vacations in especially harmful and dangerous professions, with the exception of cases of dismissal of an employee, is prohibited.
26. In addition to cases of direct non-provision of leave (Article 23), leave is considered not used (in whole or in part) through the fault of the employer also in the following cases:
a) if the vacation remained unused due to the failure of the employer to take measures to establish a queue of vacations;
b) if the vacation, which was subject to mandatory postponement, was not postponed for a new period.
27. In case of non-use of the vacation (in whole or in part) through the fault of the employer, the employee must be paid monetary compensation for the unused vacation or the next year the vacation must be extended for an unused period.
To summarize the vacation, an agreement between the employer and the employee concerned is sufficient. The summation of the vacation in case of disagreement of the employer or employee, as well as any payment of monetary compensation for the vacation (except in cases of dismissal) is allowed only by decision of the RKK.
The employee's refusal to use the leave within the period established for him without agreement with the employer, and if an agreement is not reached - without the permission of the RKK - does not give the employee the right to compensation or summation of the vacation.
28. Upon dismissal of an employee who has not used his right to vacation, he is paid compensation for the unused vacation.
At the same time, employees who are dismissed for any reason, who have worked for this employer for at least 11 months, which are subject to offset in the period of work that gives the right to leave, receive full compensation.
Employees who have worked from 5 1/2 to 11 months also receive full compensation if they quit due to:
a) liquidation of an 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) sending in the established order to universities, technical schools, workers 'schools, preparatory departments at universities and courses for training in universities and workers' schools;
c) transfer to another job at the suggestion of labor bodies or commissions with them, as well as party, Komsomol and professional organizations;
e) revealed unsuitability for work.
(part three as amended by the Resolution of the NKT of the USSR of 08.13.1930 N 267)
In all other cases, workers receive proportionate compensation. Thus, employees who have worked from 5 1/2 to 11 months receive proportional compensation if they leave for any other reason other than the above (including 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 duration of the full vacation.
Proportional compensation is paid in the following amounts:
a) for a vacation of 12 working days - in the amount of the daily average earnings for each month of work, subject to offset in the period giving the right to vacation;
b) with a vacation of 24 working days and with a monthly vacation - in the amount of two days' average earnings for each month;
c) with a one and a half month vacation - in the amount of three days, and with a two month vacation - in the amount of four days' average earnings for each month.
When calculating the period of work that gives the right to compensation, Section I of these Rules applies accordingly.
Example 1. An employee entered work on June 1, 1930 and leaves the job on March 1, 1931. He has the right to receive compensation for 9 months of work, i.e. for a vacation of 12 working days - in 9 days, for a vacation of 24 working days and a monthly vacation - in 18 days, for a one and a half month vacation - in 27 days, and for a two-month vacation - in 36 days based on the daily average earnings.
Example 2. An employee went to work on March 1, and from June 1 he 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 days' earnings.
30. Compensation for extended leave on the basis of a collective or written employment contract or on the basis of a note in the paybook is paid in accordance with the period of leave specified in the agreement or paybook.
In other cases of optional extension of the leave by law, the employer is obliged to pay compensation in accordance with the generally established period of leave.
When summing up vacations, extended vacations are included in the calculation in all cases in full.
31. In case of part-time work, compensation for the leave not used for the combined position is paid on a general basis.
32. Leave compensation is paid at the end of the year of employment, except in cases of employee dismissal.
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 leave, 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 Resolution of the All-Union Central Council of Trade Unions of 02.02.1936 (Minutes No. 164))
35. When calculating the terms of work 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 up to a full month.
35-a. In institutions and in the management apparatus of enterprises of the socialized sector (in the boards of trusts, associations, etc., but not in factory administrations), these Rules are applied with the following additions:
a) During each month, 8 - 9 percent of the total number of employees must go on vacation. In 1931, it was allowed to increase this rate to 12-15 percent in the period from May 15 to October 1 (due to the incomplete preparation of resorts and rest homes for work throughout 1931). Deviations from these norms are allowed only in bodies related to the maintenance of seasonal work.
The simultaneous granting of vacations to all employees of the institution or its individual parts is allowed only in cases where it is caused by production conditions (for example, when the inevitable suspension of work for the duration of the repair).
Example. The institution has 200 employees. Consequently, during each month, 16 - 18 employees must go on vacation. Since vacations should be provided evenly throughout the month, it is possible, for example, to provide vacations on the 3rd, 13th and 23rd or on the 7th, 17th and 27th, etc. - so that in each of these terms 5 - 6 employees go on vacation, and in just a month 16 - 18 employees.
b) Extension of vacation due to unused days off is prohibited.
c) It is forbidden to grant leave without pay, except for those cases when they are provided for by special laws (for example, laws on the distribution of young specialists to work after graduation from universities and technical schools).
d) When going on vacation, the transfer of unfinished work to other employees is not allowed.
(Article 35-a was introduced by the Decree of the NKT of the USSR of 01/19/1931 N 21)
Clause 36 actually lost force in connection with the publication of the Decree of the State Committee of Labor of the USSR, the Presidium of the All-Union Central Council of Trade Unions of 24.12.1960 N 1353/28, which approved a new List of industries, workshops, professions and positions with harmful working conditions, work in which gives the right to additional leave and reduced work day, as well as the Resolution of the USSR State Labor Committee, the All-Union Central Council of Trade Unions Presidium of December 29, 1962 N 377/30, which approved the Instruction on the procedure for applying the said List.
36. In cases where special provisions are established for selected categories workers (in particular, for workers in areas with particularly harmful climatic conditions) special rules the provision of vacations, these Rules do not apply to the extent that they contradict these special provisions. In the rest of its part, these Rules are applied on a general basis.
Special Rules on additional leaves for particularly harmful climatic conditions are attached (not shown).
37. For employees who came to this employer before July 16, 1929, 5 1/2 months of work, which gives the right to leave with this employer in 1930, is considered from January 1, 1930.
For employees who entered between July 16, 1929 and January 1, 1930, the term shall also be considered from January 1, 1930 if they, on the basis of collective agreement acquired in 1929 the right to proportional leave or proportional compensation. Otherwise, the term is counted from the date of employment.
For workers for whom the period of work giving the right to leave for 1930 is counted from January 1, 1930, the working year in further work for this employer is counted from January 1 to January 1 (i.e., coincides with the calendar year).
Example. An employee, working at the factory for 2 years, was on another vacation in 1928, and the vacation in 1929 was transferred to him in 1930. January 1, 1930
Upon voluntary dismissal on October 1, 1930, prior to the use of the vacation, the employee will receive full compensation for the 1929 vacation and, in addition, proportional compensation for 9 months of work in 1930, counting from January 1.
38. When granting vacations in enterprises and institutions in 1930 and compensation for them, these Rules do not apply to employees employed in them, who, by the date of entry into force of these Rules, have already used their leave for 1930 or are on leave for 1930. ...
39. To employees who were dismissed by the employer in 1930 before the entry into force of these Rules and entered in 1930 to a new employer - these Rules apply as follows:
a) if the employee was dismissed with proportional compensation for 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 the right to full leave or full compensation somewhere, then the period of work for a new vacation is considered from January 1, 1931;
c) if the employee was dismissed after receiving full leave or full compensation for 1930, and in 1929 did not receive the right to full leave or full compensation anywhere, then the period of work for a new vacation is considered from the day of the end of the year after starting to work by to the previous employer.
Example. The worker was first employed 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 resigned with full compensation for 1930, and on June 1, 1930, he joined a new employer. The term of work for a new vacation will be considered only from October 1, 1930, when a year has passed from the date of employment with the previous employer.
40. Canceled:
1) Decree of the NKT of the USSR of August 14, 1923 N 36 - Rules on the next in additional holidays ("News of the NKT of the USSR and the RSFSR", 1923, N 4/28);
2) clarification of the NKT of the USSR of August 28, 1923 N 56 on the interpretation of Art. 18 Rules on regular and additional vacations ("News of the NKT of the USSR and the RSFSR", 1928, N 4/28);
3) clarification of the NKT of the USSR of August 23, 1924 N 357/30 on the interpretation of Art. Art. 12 - 14 of the Rules on regular and additional vacations ("Izvestia NKT USSR", 1924, N 31);
4) clarification of the NKT of the USSR of October 24, 1924 N 446/38 on the procedure for calculating compensation for unused leave and maintenance during the vacation (Izvestia NKT SSSR, 1924, N 43);
5) clarification of the USSR NKT 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 for harmful work (Izvestiya NKT USSR, 1926, N 24-25);
6) clarification of the USSR NKT of April 30, 1929 N 155 about the duration of the vacation ("Izvestiya NKT USSR", 1929, N 20-21).
41. In Art. 1 Decree of the NKT of the USSR of February 21, 1928 on the working conditions of overgrown pupils in factory and mining apprenticeships (Izvestiya NKT SSSR, 1928, N 11), the word "vacations" is excluded.
People's Commissar of Labor of the USSR
UGLANOV
Member of the NKT Board of the USSR
and Head. Organizational and Legal
Department of NKT of the USSR
SERINA
Agreed with the All-Union Central Council of Trade Unions
April 30, 1930
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