Division of the working day into parts. Andreeva N. Dividing the working day into parts requires accurate accounting of the time payable. Registration of local regulations

In the mode of dividing the working day into parts, the working day (shift) is divided into several parts, between which there are breaks of a certain length.
Wherein total duration working hours should not exceed the established duration of daily work.

Dividing the working day into parts is one of the types of working hours (Part 1 of Art. 100, Art. 105 of the Labor Code of the Russian Federation).

Such a regime cannot be set arbitrarily or at the request of one of the parties. labor relations... In the event of a labor or tax dispute, the employer will have to prove that there were objective reasons for such a division.

The components of the divided working day for certain categories of employees are determined by sectoral regulatory legal acts. The employer needs to take into account their provisions when developing a local document.

At the same time, the presence of normatively fixed lists of professions and positions of employees, the working day of which is allowed to be divided into parts, does not exclude the possibility of applying this regime to other employees.

Article 105 of the Labor Code of the Russian Federation states that the working day is divided into parts by the employer on the basis of a local regulatory act (hereinafter - LNA), adopted taking into account the opinion of the elected body of the primary trade union organization (if the company has a union). This means that such a regime can be established for any employee if there are objective reasons for this and a certain procedure has been followed.

Grounds for dividing the working day into parts

performance of work where it is necessary due to the special nature of the work;
performance of work, the intensity of which is not the same during the working day (shift)

As can be seen from the definition of the regime under discussion, there are some restrictions when dividing the working day into parts. Thus, the total duration of working hours should not exceed the established duration of daily work. At the same time, the employer must keep strict records of the hours worked in the timesheet. It states the total number of hours actually worked, which should correspond to the established duration of daily work.

For example, if the working day (shift) is 8 hours, then regardless of the division into parts working time should also be 8 hours.

At the same time, in the top line of the column "Notes on attendance and non-attendance at work by days of the month", the code "I" or "01" is put in front of the employee's surname, and the duration of work in this mode is indicated in the bottom line.

Categories of workers whose working day can be divided into parts

Unpaid breaks

note

Work when dividing the working day into parts does not apply to shift work (Article 103 of the Labor Code of the Russian Federation)... These are different working hours, regulated by different norms of the Labor Code of the Russian Federation.

Break times during working hours are not included and are not paid. The number of parts into which a working day can be divided, as well as the duration of unpaid breaks between them, are not regulated by the Labor Code of the Russian Federation and are determined by the employer. As a rule, these are two approximately identical parts with a break of more than two hours.

The division of the working day into parts creates inconvenience for employees who are forced to leave workplaceand then return to work. Therefore, despite the unpaid breaks, the employer will still have to reimburse such costs.

When work is performed under conditions deviating from normal, the employee is paid appropriate payments. These conditions include, among other things, the mode of dividing the working day into parts. These payments may be provided for by legislation, collective agreement, agreements, LNA, employment contract (Article 149 of the Labor Code of the Russian Federation)... They are considered compensatory and are not counted in the salary. (ruling of the Supreme Court of the Komi Republic dated 13.01.2011
№ 33–8/2011) .

example

Women (regardless of where they live) working in countrysidewhere, according to working conditions, the working day is divided into parts (with a break of more than two hours), wages are increased by 30% (Clause 1.7 of the Resolution of the Supreme Soviet of the RSFSR dated 01.11.1990 No. 298 / 3-1 "On urgent measures to improve the status of women, families, protection of motherhood and childhood in rural areas").

To the leaders structural units railways, when working with the division of the working day (shift) into parts (with a break in work for more than two hours), a surcharge of up to 30% may be established tariff rate (salary) for the hours actually worked (clause 4.4 of the Regulations on remuneration of employees of branches of open joint stock company "Russian railways", Approved by the decision of the Management Board of JSC "Russian Railways" dated 15.04.2004, minutes No. 8).

Failure to establish a surcharge or establish it in a smaller amount than is provided for by regulatory enactments
In practice, far from all employers establish an additional payment for dividing the working day into parts for employees, mistakenly believing that the law does not determine its size for all categories of employees.
The employer is not entitled to establish a lower amount of additional payment than provided for by the industry regulation or industry agreement to which he joined.

An employee whose working day is divided into parts must be given a break for rest and meals

The provision on the provision of a break is mandatory for all employers, regardless of the organizational and legal form and form of ownership, as well as the working hours established in the organization, the length of the working day (shift), etc. (ruling of the Supreme Court of the Komi Republic dated June 25, 2012 No. 33-2603AP / 2012).

The time provided for rest and meals can be used in any part of the working day, it can also be added to one of the breaks between parts. The main thing is that it should be at least 30 minutes and no more than two hours. Such a break is not included in working hours and is not paid (parts 1, 2, article 108 of the Labor Code of the Russian Federation).

Registration procedure

The introduction of the mode of dividing the working day into parts assumes the following algorithm of actions.

STAGE 1. We develop the LNA project

This can be a special section of the internal rules work schedule or a separate LNA establishing the procedure and conditions for dividing the working day into parts, for example, the Regulation on working hours.

Such a document must contain the following information:

categories, positions of employees for which the division of the working day is introduced;
the number of parts of the working day;
duration, start and end time of each part;
the number and duration of unpaid breaks during the working day;
duration, start and end time for rest and meals;
the date from which the division of the working day into parts is introduced;
the period during which this regime is in effect (when a certain period is established);
the amount of additional payment to the employee for dividing the working day into parts;
other conditions (if necessary).

STEP 2. We get a motivated opinion of the trade union committee (if any)

If a trade union committee is created in the company, then LNA is adopted taking into account his opinion (Articles 105, 372 of the Labor Code of the Russian Federation)... Accordingly, if there is no trade union in the organization, this stage is excluded.

Step 1. We send LNA to the trade union committee

The document is attached to the cover letter. In the substantive part of the letter, it is necessary to state the reasons for approving the regime for dividing the working day into parts and contact the trade union committee with a request for a reasoned opinion.

It is important to record the fact of receipt by the trade union committee of such a letter (for example, a mark of receipt on a copy), since this date will begin the countdown of the period during which the trade union committee is obliged to send a reasoned opinion.

Step 2. We get a motivated opinion of the trade union committee

The trade union committee must send the employer a written reasoned opinion on the LNA project no later than five working days from the date of its receipt. If this did not happen or the trade union committee presented an unmotivated opinion, the employer has the right to approve the LNA in its original form.

note

Taking into account the opinion of the trade union committee does not mean agreement with the LNA. The employer has the right to listen to the motivated opinion of the trade union committee or decide the issue at its discretion and approve the LNA in the form in which it considers appropriate.

Step 3. We take into account the motivated opinion of the trade union committee

If the trade union committee agrees to the approval of the LNA in the submitted form, then after receiving his written reasoned opinion on the LNA, a note is made: "The opinion of the trade union committee has been taken into account (minutes from" ____ "_________ 20___, No. ______)". Such a mark can be affixed under the signature of the originator of the document or approval visas.

If the trade union committee did not agree to the approval of the LNA in the presented form and the employer agrees with the amendments made, the LNA is sent for revision taking into account the comments made and only after that it is approved with the same note about taking into account the opinion of the representative body of workers.

If the employer does not agree with the amendments, within three days after receiving the opinion, he must:

Notify the trade union about the time and place of additional consultations.
Conduct additional consultations.
Draw up a protocol based on the results of the consultations, indicating in it:
(or) the agreements reached on the LNA;
(or) the fact of failure to reach agreement between the parties on the arisen disagreements.

After completing the protocol, the employer approves the LNA and makes a note about taking into account the opinion of the trade union committee.

STEP 3. We approve the LNA

LNA, which provides for the division of the working day into parts, must be approved by the head of the organization by:

affixing in the upper right corner on the title page of the LNA the stamp “I approve”, the name of the position of the person approving the document, his signature, full name and date of approval;
or the issuance of an order for the main activity, putting this document into effect (indicating a specific date of introduction, as well as persons responsible for monitoring the execution of the LNA).

STEP 4. Introducing employees to LNA

The employer must familiarize employees for whom the regime of dividing the working day into parts has been introduced, with the corresponding LNA under their signature, both when hiring (before signing an employment contract) and in the case when an employment contract has already been concluded with them.

STEP 5. We conclude additional agreements to labor contracts

Working hours and rest hours (if for this employee it differs from general rulesvalid for this employer) is one of the conditions that must be included in an employment contract (paragraph 6, part 2, article 57 of the Labor Code of the Russian Federation).

In this regard, the introduction of the regime for dividing the working day into parts in accordance with the approved LNA is recognized as a change in the mandatory conditions of the employment contract. It can be done only with the consent of the employee, i.e. after making the appropriate changes to writing to the employment contract concluded with him (Article 72 of the Labor Code of the Russian Federation).

IN additional agreement to the employment contract, it is necessary to provide conditions for a new regime for dividing the working day into parts, rest time and additional payment for such a regime.

With regard to newly hired employees, whose working day is divided into parts, all of the listed conditions will be spelled out in the text of the employment contract.

If the employer does not establish an additional payment for dividing the working day into parts, the employee can apply for the protection of his rights to the state labor inspectorate. Having considered the complaint, the GIT can issue an order to eliminate violations of labor legislation, which is binding on the employer (Article 356, paragraph 6, part 1, Article 357 of the Labor Code of the Russian Federation).

Division of the working day into parts (Orlova E.)

Date the article was posted: 16.11.2015

Some types of work have different intensities during working day... In those companies where these types of activities are practiced, a special mode of operation may be established, providing for the division of the working day into parts. This is done to ensure that certain categories of employees of the company more efficiently and effectively use their working time (taking into account the specifics of their work) and do not sit idly at the workplace, as they say, with folded arms.

Most often, a divided working day is introduced in utilities and operational services, at communications, transport, civil aviation, livestock farming, etc. We will tell you what features should be taken into account when establishing such an unconventional working time regime, its documenting and the remuneration of workers whose working hours are divided into parts.

The procedure for establishing the regime for dividing a working day into parts

The division of the working day into parts is one of the types of working hours (part 1 of article 100, article 105 of the Labor Code of the Russian Federation). In practice, it is commonly referred to as a “split,” “split,” “torn,” or “discontinuous” work day.

Reasons for establishing such a regime

The division of the working day into parts is possible if the following conditions (Article 105 of the Labor Code of the Russian Federation):
- when performing work where it is necessary due to the special nature of the work;
- when carrying out work, the intensity of which is not the same during the working day (shift);
- the procedure and conditions for dividing the working day into parts must be established in the local regulatory act of the employer, taking into account the opinion of the elected body of the primary trade union organization (if available in the company).
In the event of a labor or tax dispute, the employer will have to prove the existence of objective reasons for dividing the working day into parts.
For example, the special nature of the job may be related to the inability to perform work duties during the working day. In particular, it is extremely difficult to clean office premises in the presence of employees, and therefore the cleaning day can be divided into parts. The first part of the working day can run before the start of work in the organization, and the second - after its end.
Based on the norms of Art. 105 of the Labor Code of the Russian Federation, the employer must study the necessity and grounds for introducing this working time regime, the possibilities and methods of recording working hours in this regime.

The essence of the regime

The mode of dividing the working day into parts is the division of the working day (shift) during which the employee works for a given employer into several parts, between which breaks of a certain duration are set, while the total working time should not exceed the established duration of daily work.
Article 105 of the Labor Code of the Russian Federation contains only general conditions, which, however, are very important (the grounds for introducing such a mode of work, the duration of working hours when it was introduced). At the same time, the Labor Code of the Russian Federation does not determine the number of parts into which a working day can be divided, as well as their duration. In practice, the working day is divided into two parts with a break of no more than two hours. It is possible to establish a larger number of breaks (depending on the specifics of the work of certain categories of workers).
To determine whether the working day is divided into parts, it is necessary to establish the nature of the break in the middle of the working day. In most cases, such a break is a break for rest and meals, or the so-called lunch break, which is regulated by Art. 108 of the Labor Code of the Russian Federation. Based on this, in practice, it is concluded that if a break in the middle of a working day is more than 2 hours, then such a working day is considered divided into parts, but to establish it, the conditions specified in Art. 105 of the Labor Code of the Russian Federation.
This conclusion is also confirmed by a number of regulatory legal acts at the federal level, which establish the specifics of working hours and rest time for certain categories of workers, which are discussed below.

Note! Work when dividing the working day into parts (Article 105 of the Labor Code of the Russian Federation) does not apply to shift work (Article 103 of the Labor Code of the RF) These are different working hours, regulated by different rules.

Unpaid breaks between parts of the working day

Break times during working hours are not included and are not paid. The number of parts into which a working day can be divided, as well as the duration of unpaid breaks between these parts, are not established by the Labor Code of the Russian Federation. Therefore, the employer independently determines the working conditions for employees whose working day is divided into parts (parts 1, 2 of article 8, paragraph 7 of part 1 of article 22, article 105 of the Labor Code of the Russian Federation). As a rule, these are two approximately identical parts with a break of more than two hours. At the same time, for certain categories of workers, the components of the division of the working day into parts are established by sectoral regulatory legal acts, as well as sectoral agreements. For instance:
- for crew members aircraft civil aviation (clauses 29 - 33 of the Regulations on the specifics of the working hours and rest hours of crew members of civil aviation aircraft of the Russian Federation, approved by Order of the Ministry of Transport of Russia dated November 21, 2005 N 139);
- for tram and trolleybus drivers (clause 9 of the Regulations on the specifics of working hours and rest hours for tram and trolleybus drivers, approved by Order of the Ministry of Transport of Russia dated 18.10.2005 N 127);
- for bus drivers working on regular city, suburban and intercity bus routes (clause 13 of the Regulation on the specifics of working hours and rest hours for car drivers, approved by Order of the Ministry of Transport of Russia dated 20.08.2004 N 15);
- for employees rail transportworking in the positions of specialists serving service and special carriages (clause 38 of the Regulations on the specifics of the working hours and rest time, working conditions of certain categories of railway transport workers directly related to the movement of trains, approved by Order of the Ministry of Railways of Russia dated 05.03.2004 N 7) ;
- for metro workers directly related to passenger service, as well as in the production of work, the intensity of which is not the same during the working day (shift) (clause 17 of the Regulations on the specifics of the working hours and rest hours for metro workers, approved by the Order of the Ministry of Transport of Russia dated 08.06 .2005 N 63);
- for employees of educational institutions with a round-the-clock stay of students (clause 3.3 of the Regulations on the specifics of the working hours and rest hours of pedagogical and other employees of educational institutions, approved by Order of the Ministry of Education and Science of Russia dated March 27, 2006 N 69);
- for communications workers (Appendix 3 to the Regulations on the specifics of the working hours and rest hours of communications workers with a special nature of work, approved by Order of the Ministry of Communications of Russia dated 09/08/2003 N 112);
- for workers caring for animals (clause 2.305 of the Rules for labor protection in animal husbandry, approved by Order of the Ministry of Agriculture of Russia dated February 10, 2003 N 49);
- for employees of organizations of Spetsstroy of Russia (clause 7.14 of the Industry Agreement on organizations Federal agency special construction for 2014 - 2016, approved by the All-Russian Trade Union of Special Construction Workers of Russia, Spetsstroy of Russia on November 19, 2013);
- for employees of urban land-based electric transport organizations (clause 3.2 of the Industry Agreement on urban land-based electric transport organizations Russian Federation for 2015 - 2017, approved by the Council of the All-Russian Industrial Association of Employers "City Electric Transport", the All-Russian Trade Union of Life Support Workers on November 20, 2014).
Remember also that the peculiarities of the working hours and rest hours, working conditions of certain categories of workers whose work is directly related to movement vehicle, are established by the federal executive body responsible for the development of state policy and legal regulation in the field of transport, taking into account the opinion of the relevant all-Russian trade union and the all-Russian association of employers. These features cannot worsen the position of employees in comparison with those established by the Labor Code of the Russian Federation (part 2 of article 329 of the Labor Code of the Russian Federation).
If the division of the working day into parts is provided for by industry-specific regulatory legal acts and agreements, their provisions must be taken into account when developing a local regulatory act of the employer.
At the same time, the presence of normatively fixed lists of professions and positions of employees, for which the division of the working day into parts can be established, does not exclude the possibility of applying this mode of working time to employees whose professions and positions were not reflected in the specified lists. However, there must be grounds for this (the organization is carrying out work in which division is necessary due to the special nature of labor, or work, the intensity of which is not the same during the working day (shift)) and the procedure for introducing the regime for dividing the working day into parts must be followed.
As follows from the provisions of Art. 105 of the Labor Code of the Russian Federation, the division of the working day into parts is carried out by the employer on the basis of a local normative act adopted taking into account the opinion of the elected body of the primary trade union organization.
The absence of an elected trade union body is not an obstacle to the introduction of a division of the working day into parts, however, if employees do not agree with such an introduction, they can file a complaint against the employer's actions with the labor dispute commission (if available in the company), the state labor inspection or to court.

Break for rest and meals

Employees whose working day is divided into parts must, like other employees, be provided with a break for rest and meals (part 1 of article 108 of the Labor Code of the Russian Federation). This norm is mandatory for all employers, regardless of the organizational and legal form and form of ownership, as well as the working hours established in the organization, the length of the working day (shift), etc. (Definition The Supreme Court Of the Komi Republic dated 25.06.2012 N 33-2603AP / 2012).
The time provided for rest and meals can be used in any part of the working day, the main thing is that it should be at least 30 minutes and no more than 2 hours. Such a break is not included in working hours and is not paid (part 1 of article 108 of the Labor Code of the Russian Federation). A break for rest and meals can be provided in any part of the working day, it can be added to one of the breaks between parts of the working day (parts 1, 2, article 108 of the Labor Code of the Russian Federation).

Surcharge for dividing the working day into parts

The division of the working day into parts creates inconvenience for workers who are forced to leave the workplace and then return to work. This is compensated by the establishment of additional payments to employees performing a labor function with a given working hours.
When work is performed under conditions deviating from normal, the employee is paid appropriate payments. These conditions include, among other things, the mode of dividing the working day into parts. These payments may be provided for by legislation, collective bargaining agreements, local regulations, labor contracts (Article 149 of the Labor Code of the Russian Federation). These payments are considered compensatory and are not taken into account in the amount of the salary (Determination of the Supreme Court of the Komi Republic of 13.01.2011 N 33-8 / 2011). For instance:
- for women (regardless of their place of residence) working in rural areas, where, according to working conditions, the working day is divided into parts (with a break of more than 2 hours), wages are increased by 30% (clause 1.7 of the Resolution of the Supreme Soviet of the RSFSR from 01.11.1990 N 298 / 3-1, Letter of the State Committee for Economics of the RSFSR dated 12.12.1990 N 19-117, Art.423 of the Labor Code of the Russian Federation);
- for employees of a number of housing organizations utilities, in the sphere of consumer services for the population and artisans, an additional payment was introduced for work on a schedule with the division of the shift into parts - in the amount of at least 30% of the tariff rate for the time worked in the shift (subparagraphs "z" of clause 2.8.2.1 of the Industry Tariff Agreement in the economy of the Russian Federation for 2014 - 2016, approved by the Ministry of Regional Development of Russia, the All-Russian Industrial Association of Employers "Union of Communal Enterprises", the All-Russian Trade Union of Life Support Workers 09.09.2013; clause "g" clause 2.8.2 of the Industry Agreement on organizations in the sphere of consumer services for the population and artisans for 2014 - 2016, approved by the Russian association of employers in the sphere of consumer services for the population and artisans "Rosbytsoyuz", the All-Russian trade union of life support workers on November 15, 2013);
- for the heads of structural divisions of railways, structural divisions of railway departments and separate structural divisions when working with the division of the working day (shift) into parts (with a break in work for more than 2 hours), an additional payment of up to 30% of the tariff rate (salary) can be established for the hours actually worked (clause 4.4 of the Regulations on the remuneration of employees of branches of JSC Russian Railways, approved by the Decision of the Management Board of JSC Russian Railways dated April 15, 2004, Minutes No. 8 (Letter of JSC Russian Railways dated 05.05.2004 N FA-4049 )).
If the division of the working day into parts is provided for by an industry agreement, then the employer's local regulatory act is developed taking into account the requirements of the relevant provisions. At the same time, the employer does not have the right to establish a smaller amount of additional payment than provided for by the industry regulatory legal act or the industry agreement to which he joined.
In practice, by no means all employers establish an additional payment for the division of the working day into parts for employees, mistakenly believing that the amount of such additional payment for all categories of employees is not determined by law.
If an additional payment for dividing the working day into parts is not established in the local normative act of the employer, the employee can file a complaint with the State Inspectorate for the protection of his rights. Having considered the complaint, the State Inspectorate of the Russian Federation may issue an order to eliminate violations of labor legislation that are binding on the employer (Article 356, paragraph 6, Part 1, Article 357 of the Labor Code of the Russian Federation). Based on the results of the inspection, the employer may be brought to administrative responsibility for violation of labor legislation. Officials face an administrative fine in the amount of 1,000 rubles. up to 5,000 rubles, legal entities - from 30,000 rubles. up to 50,000 rubles. (part 1 of article 5.27 of the Administrative Code of the Russian Federation).

Taxation of surcharges for dividing the working day into parts

Additional payments for dividing the working day into parts provided for in Art. 149 of the Labor Code of the Russian Federation, are of a compensatory nature.
Such additional payments provided for by labor legislation and other regulatory legal acts containing norms labor law, collective bargaining agreement, agreements, local regulations, labor agreement:
- are taken into account for the purposes of taxation of profits as labor costs, subject to the requirements of paragraph 1 of Art. 252 of the Tax Code of the Russian Federation on the basis of clause 3 of Art. 255 of the Tax Code of the Russian Federation, and are also recognized as part of labor costs for the purpose of calculating tax when applying the simplified taxation system with the object of taxation "income minus expenses" (subparagraph 6, paragraph 1, paragraph 2 of Art. 346.16, paragraph 1 of Art. 252 of the Tax Code of the Russian Federation);
- subject to income tax individuals on the basis of paragraph 1 of Art. 209, paragraph 1 of Art. 210 Tax Code of the Russian Federation;
- are subject to insurance contributions to the Pension Fund of the Russian Federation, the Federal Social Security Service of the Russian Federation, FFOMS, as well as insurance contributions from industrial accidents and occupational diseases in accordance with Part 1 of Art. 7 Federal law from 24.07.2009 N 212-FZ "On insurance premiums in Pension Fund Of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Fund of Compulsory Medical Insurance "and Part 1 of Article 20.1 of the Federal Law of 24.07.1998 N 125-FZ" On Compulsory Social Insurance against Industrial Accidents and Occupational Diseases ".

Documenting

The procedure for introducing the regime for dividing the working day into parts includes the following algorithm of the employer's actions.
Step 1. We develop a draft local normative act establishing the procedure and conditions for dividing the working day into parts (part 1 of article 8, paragraph 7 of part 1 of article 22, article 105 of the Labor Code of the Russian Federation).
This can be a special section of the internal labor regulations or a separate local normative act (for example, a regulation on company working hours).
Such a document must contain the following information:
- categories, professions and positions of employees for which the division of the working day is introduced;
- the number of parts of the working day;
- duration, start and end time of each part of the working day;
- the number and duration of unpaid breaks during the working day;
- duration, start and end time of the break for rest and food;
- the date from which the division of the working day into parts is introduced;
- the period during which this regime is in effect, that is, the date from which the division of the working day into parts is introduced, and the period of its validity (when a certain period is established);
- the amount of additional payment to the employee for dividing the working day into parts;
- other conditions (if necessary).
Step 2. We get a motivated opinion of the elected body of the primary trade union organization (if any).
If a trade union committee has been created in the company, then the local normative act (hereinafter - LNA) is adopted taking into account its opinion (Articles 105, 372 of the Labor Code of the Russian Federation).
Step 2.1. We send a cover letter and a draft local regulation to the trade union committee.
It is advisable to send a local normative act to the trade union committee together with a covering letter. In the substantive part cover letter it is necessary to state the reasons for the approval of the regime for dividing the working day into parts and ask the trade union committee to issue a reasoned opinion.
It is important to record the fact of receipt of a cover letter by the trade union committee, since this body must send the employer a reasoned opinion on the draft local regulatory act in writing no later than 5 working days from the date of receipt of the draft local regulatory act (part 2 of article 372 of the Labor Code of the Russian Federation). The receipt can be marked on the copy of the cover letter.
Step 2.2. We get a motivated opinion of the trade union committee.
The trade union committee must send the employer a reasoned opinion (in writing) on \u200b\u200bthe draft local normative act no later than 5 working days from the date of its receipt. If the trade union committee has not sent a reasoned opinion in writing to the employer within the prescribed period or provided an unmotivated opinion, the employer has the right to approve the local normative act in the form in which it was submitted.
Step 2.3. We take into account the motivated opinion of the trade union committee.
Step 2.3.1. If the written reasoned opinion reflects consent to the approval of the local normative act in the presented form, then after receiving it on the title page of the local normative act, a mark is made in the upper left corner: "The opinion of the trade union committee has been taken into account (minutes from" __ "_______ 2015 N __)" , and the local normative act itself is approved by the head of the organization.
Step 2.3.2. If the written reasoned opinion does not contain consent to the approval of the local normative act in the submitted form and the employer agrees with the amendments made, the local normative act is sent for revision taking into account the comments made and only after that it is approved with a note that the opinion of the primary trade union organization has been taken into account.
Step 2.3.3. If the written reasoned opinion does not contain consent to the approval of the local regulatory act as submitted and the employer does not agree with the amendments made, within 3 days after receiving the opinion, the employer must:
1) notify the trade union committee of the time and place of additional consultations;
2) conduct additional consultations;
3) draw up a protocol based on the results of the consultations, indicating in it:
- (or) reached agreements on a local regulatory act;
- (or) the fact of failure to reach agreement between the parties on the arisen disagreements.
After drawing up the protocol, the employer approves the local normative act and makes a note about taking into account the opinion of the trade union committee. Taking into account the opinion of the trade union committee does not mean agreeing with it a local normative act. The employer has the right to listen to the motivated opinion of the trade union committee or resolve the issue at his own discretion and approve the local normative act in the form in which it considers appropriate.
Step 3. We approve the local normative act.
The local normative act, which provides for the division of the working day into parts, must be approved by the head of the organization or another authorized official:
- or by affixing in the upper right corner on the title page of the local normative act the stamp "I Approve", the name of the position of the person approving the document, his signature, full name. and the date of approval (clause 3.16 of GOST R 6.30-2003, approved by the Resolution of the State Standard of Russia dated 03.03.2003 N 65-st);
- or by issuing an order for the organization that enforces this document (indicating the specific date of introduction, as well as the persons responsible for monitoring the implementation of such a local regulatory act).
For any method of approval on the title page of a local normative act, in its upper left corner it is necessary to record: "The opinion of the trade union committee has been taken into account (minutes from" __ "_______ 2015 N __)" or "There is no elected body of the primary trade union organization".
Step 4. Introduce the employees, whose working day is divided into parts, with the local regulations.
The employer must inform the employees for whom such a regime has been introduced with the local normative act introducing the regime for dividing the working day into parts, under the signature both when hiring (before signing an employment contract) and in case of making appropriate changes to it (para. 10 h. 2, article 22, h. 3, article 68 of the Labor Code of the Russian Federation). If the employee does not comply with such a working time regime, the employee is relieved of responsibility by the fact that his employer does not familiarize himself with such a local normative act.
Step 5. We conclude an additional agreement with the employee to the employment contract on the division of his working day into parts.
The mode of working hours and rest time (if for a given employee it differs from the general rules in force for this employer) are among the conditions that must be included in the labor contract (paragraph 6 of part 2 of article 57 of the Labor Code of the Russian Federation).
In this regard, the introduction of the regime for dividing the working day into parts in accordance with the approved local regulatory act is recognized as a change in the mandatory conditions of the employment contract, which can be made by the employer only with the consent of the employee, that is, after making the appropriate changes in writing to the employment contract concluded with him (Article 72 of the Labor Code of the Russian Federation).
That is, it is impossible to unilaterally divide an employee's working day into parts. Thus, in the supplementary agreement to the employment contract, it is necessary to provide conditions for the new regime for dividing the working day into parts, rest time and additional payment for such a regime.
With regard to newly hired workers, whose working day is divided into parts, the specified conditions related to the establishment of the regime for dividing the working day into parts will initially be included in the text of the employment contract upon its conclusion.

The driver release nurse works every day from 2 to 3 hours, 1.5 hours in the morning and 1.5 hours in the evening from Monday to Thursday, 1 hour in the morning and 1 hour in the evening from Friday to Sunday. PVTR? This is part-time work during the working day with division of the working day into parts or flexible working hours with a fixed number of hours per week. Do I need to indicate the start and end of work for each part?

Answer

Answer to the question:

According to Part 2 of Art. 57 of the Labor Code of the Russian Federation, the mode of working hours and rest time (if for this employee it differs from the general rules in force for this employer) is a prerequisite labor contract.

Don't miss: the main material of the month from the leading specialists of the Ministry of Labor and Rostrud

Encyclopedia on the introduction of turnkey flexible working hours from the Personnel System.

And by virtue of Art. 72 of the Labor Code of the Russian Federation, changes in the terms of the labor contract determined by the parties, including the working hours, are allowed only by agreement of the parties to the labor contract, with the exception of cases provided for by this Code. An agreement to amend the terms and conditions of an employment contract determined by the parties shall be concluded in writing.

According to Part 1 of Art. 74 of the Labor Code of the Russian Federation, it is allowed to change the terms of the employment contract determined by the parties (except for changes labor function employee) at the initiative of the employer if there are reasons associated with changes in the organizational or technological working conditions.

Thus, you can change the working hours of employees in the order of Art. 72 of the Labor Code of the Russian Federation by agreement of the parties to the employment contract or in accordance with Art. 74 of the Labor Code of the Russian Federation on the initiative of the employer with a preliminary notification of at least two months.

If the workers agree to work in the new conditions, it will be necessary to conclude additional agreements to labor contracts with them.

If workers refuse to continue working in the new conditions and disagree with the transfer to vacant post (or in the absence of vacancies) the employment contract with them is terminated under clause 7, h. 1, Art. 77 of the Labor Code of the Russian Federation - the employee's refusal to continue working in connection with a change in the terms of the employment contract determined by the parties.

The division of the working day into parts is possible in the following cases (Article 105 of the Labor Code of the Russian Federation):

If the organization provides for a special nature of work (for example, in organizations serving the population - communications, utilities, civil aviation);

If the intensity of work performed during the working day is different (for example, urban passenger transport, livestock farms).

The main condition for dividing the working day into parts is that the total working time should not exceed the prescribed duration of daily work.

The number of parts into which a working day can be divided, as well as the time of breaks between these parts, are not established by the Labor Code of the Russian Federation. Therefore, the employer independently determines the working conditions for employees whose working day is divided into parts. As a rule, these are two parts with a break of more than two hours.

The time provided for rest and meals can be used in any part of the working day, as long as it is at least 30 minutes. This break is not included in working hours and is not paid.

The procedure and conditions for dividing the working day into parts are established by the local regulatory act of the employer (PVTR).

If an elective body of a primary trade union organization has been created in an organization, then the local normative act is adopted taking into account its opinion (Article 372 of the Labor Code of the Russian Federation).

This act contains the following information:

The number of parts of the working day;

Length of parts of the working day;

The number and duration of breaks during the working day;

The date from which the division of the working day into parts is introduced;

The period during which this regime is in effect (when a certain period is established);

The amount of additional payments to an employee for dividing the working day into parts (for example, clause 1.7 of the Resolution of the Supreme Council of the RSFSR dated 01.11.1990 N 298 / 3-1 provides for increased wages for women) and other conditions.

In the HTPP (or an employment contract - an additional agreement, if only one employee has such a schedule), for example, it can be written like this:

The employee is assigned part-time work with the division of the working day into parts.

Dividing the working day into parts:

Monday to Thursday:

- 7.00 - 8.30 - working hours;

- 19.00-20.30 - working hours.

Friday to Sunday:

- 7.00 - 8.00 - working hours;

- 19.00-20.00 - working hours.

Details in the materials of the System Personnel:

1.Answer: How to set the part-time mode

N.Z. Kovyazina

Working time modes

What are the differences between normal working hours, incomplete and reduced

IN general case a normal working week should not exceed 40 hours (). During the week, working hours must be distributed so that its total duration does not exceed this limit. The most common option is an eight-hour working day with a five-day working week with days off Saturday, Sunday.

The working hours operating in the organization must be fixed in and or contracts ().

In addition to normal working hours, labor legislation provides for a regime. Part-time work means that an employee is part-time, either during the week or during the working day or shift. For example, not five working days, but four or not eight hours per shift, but six.

Part-time work should be distinguished from. The latter is set for individuals and is counted as a full labor standard (). If we are talking about a part-time work week, then all non-working days in this case are reflected as weekends ().

Which employees need to establish a part-time schedule

The employer can transfer any employee to work with an incomplete schedule at his request - an application.

Moreover, in some cases, the administration is obliged to establish such a regime for an employee. This must be done at the request:

a pregnant woman;

one of the parents (guardian, curator) with a child under the age of 14 or a disabled child under the age of 18;
an employee who takes care of a sick family member in accordance with a medical report.

This procedure is provided for by the Labor Code of the Russian Federation.

In addition, the organization can enter part-time work and.

Employer's initiative

Can the employer establish a part-time regime on its own initiative

The establishment of a part-time working regime at the initiative of the employer is allowed during the period, which entail significant changes in working conditions. If such changes can lead to, the administration has the right to establish a part-time regime for up to six months. Such a decision is required - if available in the organization. Such rules follow from Article 74 of the Labor Code of the Russian Federation.

Attention: labor legislation does not allow the possibility of introducing part-time work at the initiative of the employer in the event of a threat of mass dismissal for economic reasons (part, art. 74 of the Labor Code of the Russian Federation).

When introducing a part-time working regime, employees must be notified in writing of the upcoming changes two months before they are carried out with mandatory familiarization under the signature (). The consent or disagreement of an employee to work in part-time mode can, for example, be written in itself.

Attention: if the employee agrees to work in the new conditions, then you need to work with him. Moreover, in the interests of the employer, this must be done as quickly as possible, before the employee has time to change his mind and find a more profitable job offer on the side. If an employee changes his mind after signing the agreement, then he cannot c.

If an employee, in these circumstances, refuses to work part-time, he can be dismissed to reduce the number or staff with the payment of severance pay and average monthly earnings for the period of employment in (, Labor Code of the Russian Federation).

Attention: the introduction of an incomplete regime without a two-month warning or the execution of additional agreements to the employment contract threatens the employer

Commentary on Article 105 of the Labor Code of the Russian Federation

The division of the working day into parts is regulated by article 105 of the Labor Code of the Russian Federation. In those jobs where it is necessary due to the special nature of work, as well as in the production of work, the intensity of which is not the same during the working day (shift), the working day can be divided into parts so that the total working time does not exceed the established duration of daily work ...

Such work is usually associated with serving the population (for example, in urban passenger transport, in communications organizations, trade). At the same time, the total duration of working hours should not exceed the established duration of daily work. Such a division is made by the employer on the basis of a local normative act adopted taking into account the opinion of the elected trade union body of this organization.

The legislation does not determine how many parts a working day can be divided into. In practice, the working day is divided into two parts with a break of no more than two hours. More breaks are possible. These breaks are not charged. The lunch break is included in the indicated breaks.

For the time worked under this mode, the employee is paid an additional payment to his main earnings (Article 114 of the Labor Code of the Russian Federation).

Another commentary on Art. 105 of the Labor Code of the Russian Federation

1. Article 105 of the Labor Code of the Russian Federation establishes both the conditions for applying the operating mode with the division of the working day into parts, and the procedure for introducing such a regime.

2. The conditions for the application of the mode of work with the division of the working day into parts are the special nature of labor or the production of work, the intensity of which is not the same during the working day (shift). Schedules with the division of the working day into parts are mainly used in organizations serving the population, for example, for drivers of urban passenger transport, for some trade workers.

3. The Labor Code does not define the duration of either separate parts of the working day or breaks between them. These issues should be resolved by a local normative act on the introduction of the division of the working day into parts, adopted taking into account the opinion of the elected body of the primary trade union organization. In this case, the total duration of the working day (shift) should not exceed the duration of daily work established for employees by the internal labor regulations or an employment contract.

The labor contracts concluded with workers replacing the posts of hydrometeorological observers contain the wording “special working hours”. The duration of the working week, the duration of daily work, the start and end times of work, the time of breaks in work, the alternation of working and non-working days are not specified in labor contracts. The internal labor regulations, collective bargaining agreements or agreements have not established the working hours for these workers either. In fact, these workers are employed 7 days a week at different times during the day (several times within 24 hours). Currently, the management of the parent organization insists on amending the labor contracts concluded with these workers, in terms of changing the mode of their working hours from special to breaking. Is it possible to establish such a working time regime as discontinuous?

Having considered the issue, we came to the following conclusion:

Rostrud, in connection with requests from employers and employees on issues related to the discontinuous working time (discontinuous nature of work), has repeatedly in its letters identified this mode with dividing the working day into parts (see, for example, Question: Discontinuous nature of work (RH). What This is? Payment Methods? (Information portal of Rostrud "Online Inspection.RF", September 2015); Question: How is a discontinuous working day paid (lunch - 3 hours)? (Information portal of Rostrud "Onlineinspection.RF", September 2015) ; Question: I work as a teacher additional education in the orphanage. My work schedule is built in a similar way: I work from 10.00 to 13.00, then a break from 13.00 to 15.00, then I work from 15.00 to 16.00, then a break from 16.00 to 18.00 and again work from 18.00 to 20.00. Do I have to pay for the breaking day and on what basis regulatory documents? (Information portal of Rostrud "Online Inspection.RF", September 2015); Question: What should be the minimum and maximum duration of rest (between parts of the working day) when establishing a discontinuous work schedule for drivers? (Information portal of Rostrud "Online Inspection.RF", September 2015)).

Note that in practice, this type of working time regime, as the division of the working day into parts, can also be called a "fragmented", "divided", "torn" working day * (1).

This working time regime is determined by Art. 105 of the Labor Code of the Russian Federation, according to which in those jobs where it is necessary due to the special nature of labor, as well as in the production of work, the intensity of which is not the same during the working day (shift), the working day can be divided into parts so that the total duration working hours did not exceed the established duration of daily work.

As follows from this norm, in fact, the working time regime, providing for the division of the working day into parts, is a special working regime that is introduced in certain cases.

For some industries, acts federal bodies the executive power has established lists of professions and positions of employees who can be assigned a divided working day. With regard to workers replacing the posts of hydromet observers, similar regulations federal level no.

Accordingly, in this case, the employer, based on the provisions of Art. 105 of the Labor Code of the Russian Federation should assess the need and grounds for introducing this working time regime for hydromet observers, as well as provide for the possibilities and methods of recording their working time in this regime. Considering that the Labor Code of the Russian Federation does not indicate either the number of parts into which an employee's working day can be divided, nor the minimum or maximum number of hours of break between parts of the working day when divided, the working day of employees can be divided into parts at the discretion of the employer. In this case, the division of the working day of workers into parts should be caused by objective reasons and the presence special conditions labor (see the definition of the Nizhny Novgorod Regional Court dated 07.08.2012 N 33-5783 / 2012).

In the presence of such reasons and special working conditions, the division of the working day into parts is made by the employer on the basis of a local normative act adopted taking into account the opinion of the elected body of the primary trade union organization (if any) (Article 105 of the Labor Code of the Russian Federation). And when establishing such a regime, it must be remembered that regardless of the number of parts into which the employee's working day is divided, the total working time should not exceed the established duration of daily work.

In this regard, we note that according to the second part of Art. 91 of the Labor Code of the Russian Federation, the normal duration of working time cannot exceed 40 hours per week. This means that other regulations or an employment contract cannot increase the normal working hours in comparison with the specified one. This rule applies to all employers, regardless of their type of activity, nature of work and organizational and legal form. For some categories of workers, the Labor Code of the Russian Federation directly provides for a normal working time, which is less than 40 hours per week, - a reduced working time (Article 92 of the Labor Code of the Russian Federation). And for some categories of workers, Art. 94 of the Labor Code of the Russian Federation also determines the duration of daily work (shift). Note that for workers with a special nature of work, both weekly and daily working hours can be determined by special regulatory legal acts regulating the characteristics of their work (part two of article 100 of the Labor Code of the Russian Federation).

Consequently, the instructions in the employment contracts of the workers referred to in the question, information about the working mode - "special working hours" is not enough.

In any case, the employer must establish the internal labor regulations, collective agreement, agreements, the length of the working week, the duration of daily work (shift), including part-time work (shift), start and end times of work, break time, number of shifts per day, alternation of working and non-working days. If the working hours of these workers differ from the general rules established in your organization, then they should be provided for by labor contracts.

And if the employer has a need to divide the working day into parts, then the number and duration of each part of the employee's working day should also be determined so that the total working time does not exceed the established duration of daily work. Agreements reached by the employee and the employer on the division of the working day into parts, about specific amount parts of the working day and their duration, the start and end time of each part, as well as the duration and time of granting the break (s) between parts of the working day, the parties must be reflected in the supplementary agreement to the employment contract.

The possibility of dividing specific categories of employees into parts of the working day should also be secured by the employer in a local regulatory act, for example, in the internal labor regulations.

We would also like to draw your attention to the fact that when establishing the working time regime, it is necessary to take into account that at present, clause 11 of the decree of the Council of People's Commissars of the USSR of 09.24.1929 "On working hours and rest time in enterprises and institutions moving to a continuous working week" (hereinafter - the Resolution) (part one of Art.423 of the Labor Code of the Russian Federation, clause 11 of the List of decisions of the Government of the USSR that have become invalid due to the introduction of the Fundamentals of Legislation of the USSR and Union Republics on Labor, approved by the Resolution of the Council of Ministers of the USSR dated 08.07.1977 N 618). According to the specified paragraph of the Resolution, the duration of daily rest (between shifts, etc.) together with the lunch break must be at least twice the duration of the work time on the working day (shift) preceding the rest. This norm does not contradict the Labor Code of the Russian Federation.

Work with the division of the working day into parts (see, for example, clause 1.7 of the Resolution of the Supreme Council of the RSFSR N 298 / 3-1 of 01.11.1990 N 298 / 3-1) can also be classified as conditions deviating from normal. Therefore, employees whose working day is divided into parts are provided with a compensatory supplement.

Expert of the Legal Consulting Service GARANT

Response quality control:

Reviewer of the Legal Consulting Service GARANT

The material was prepared on the basis of an individual written consultation provided as part of the Legal Consulting service.

* (1) See, for example, the article by E. Orlova “Dividing the working day into parts” (“Tax Bulletin” magazine, N 10, October 2015).

© NPP GARANT-SERVICE LLC, 2017. The GARANT system has been produced since 1990. The company "Garant" and its partners are members of the Russian Association of Legal Information GARANT.

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Russia, Khabarovsk Territory

Commentary on Article 105 of the Labor Code

1. The article establishes the grounds upon which the division of the working day into parts is introduced: the special nature of work in organizations (for example, organizations serving the population); the production of work, the intensity of which is not the same during the working day (shift) (for example, urban passenger transport). It is possible to establish a division of the working day into parts, or a fragmented working day, if the condition is met - the total duration of working hours cannot exceed the stipulated duration of daily work.

The legislation does not determine how many parts a working day can be divided into. In practice, the working day is divided into 2 parts with a break of more than 2 hours. More breaks are possible. These breaks are not charged. The lunch break is included in the indicated breaks.

2. The division of the working day into parts is introduced by the employer, taking into account the opinion of the elected trade union body of the organization.

A local normative act regulating the division of the working day into parts must provide for: the circle of workers for whom a fragmented working day is introduced; the amount of the duration of the parts into which the working day is divided, the amount of the duration of the break between them; the term for which a split working day is introduced (or the term is not specified), etc. Since the regime in which the working day is divided into parts is inconvenient for the employee, incentive surcharges may be included in the local normative act (Article 144 of the Labor Code).

3. For some categories of employees, the division of the working day into parts is established by law. The regulation on working hours and rest time for car drivers provides that bus drivers working on city, suburban and intercity regular passenger lines, with their consent, may set a working day with a shift split into 2 parts, provided that the drivers return to the place of deployment before the start of the shift break, no later than 4 hours after the start of work. In this case, the duration of the break must be at least 2 hours, excluding the time for rest and meals. The break time between 2 parts of a shift is not included in working hours.

Regulations on working hours and rest hours of employees of operating communications organizations, approved. Decree of the Ministry of Labor of Russia of November 17, 1997 N 58 provides that employees directly related to the service of the population may be established, with their consent, several breaks in work with a total duration of more than 2 hours, including a break for rest and meals. During these breaks, the employee can leave the place of work at his own discretion. By order of February 19, 1998, the State Communications Committee of Russia N 25 and the Central Committee of the Trade Union of Communications Workers of the Russian Federation N 4-133 approved the List of professions and positions of workers directly related to public services, for which the heads of communications organizations can establish, with their consent, divided into parts ( with a break in work for more than 2 hours) working day with an appropriate surcharge. By order of the Ministry of the Russian Federation for Communications and Informatization of September 8, 2003 N 112, the List of professions and positions of communications workers for which the employer can establish a divided working day was approved.

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Article 105. Division of the working day into parts

Commentary on Article 105 of the Labor Code of the Russian Federation

1. The commented article provides for the possibility of dividing the working day into parts. Such a division is possible in those jobs where the intensity of work during the working day (shift) is not the same, as well as in jobs with a special nature of labor. A condition for such a division is the observance of the total duration of the working day: in the amount of the parts must not exceed the established normal working hours.

So, housing and communal services workers (for example, janitors work in the early morning and evening), public transport workers are unevenly loaded during the day, etc.

The Labor Code of the Russian Federation does not determine how many parts a working day can be divided into and how long it should be. In practice, most often the working day is divided into two parts, with a break between them for more than two hours. However, there may be more parts of the working day. The break for rest and meals is also included in the indicated break.

2. The division of the working day into parts is introduced by a local statutory act of the employer, taking into account the opinion of the elected body of the primary trade union organization.

The local normative act must provide for the circle of employees who establish the division of the working day into parts, the number of specified parts, the start and end time of each part of the working time.

Industry tariff agreements, collective agreements or local regulations of the employer may provide for additional payments to employees for inconveniences caused by dividing the working day into parts.

Such additional payments are envisaged, in particular, by the Industry Tariff Agreement in the Housing and Utilities Sector of the Russian Federation for 2008 - 2010, approved by Rosstroy on July 02, 2007, the All-Russian Industrial Association of Employers "Union of Communal Enterprises", the All-Russian Trade Union of Life Support Workers on June 22, 2007 (The agreement was extended until January 1, 2014), stipulating that the additional payment for work on a schedule with the division of the shift into parts is set in the amount of at least 30% of the tariff rate for the time worked in the shift (clauses "g", clause 2.8.2).

Similar norms are established by clause 2.9.2.1 of the Sectoral Tariff Agreement on Organizations of Land Urban Electric Transport of the Russian Federation for 2009 - 2011, approved by the Council of the All-Russian Industrial Association of Employers "Urban Electric Transport", the All-Russian Trade Union of Life Support Workers on 08.10.2008 (The agreement was extended until January 1 2015) and pp. "G" clause 2.8.2 of the Sectoral Tariff Agreement for Organizations and Enterprises in the Public Service Sector for 2008 - 2010, approved by the Russian Association of Employers in the Public Service Sector and Craftsmen Rosbytsoyuz, the All-Russian Trade Union of Life Support Workers on November 23, 2007 (The agreement was extended until January 1, 2014).

At the same time, the establishment of such an additional payment by agreement of the parties social partnership may be due not only to the mode of operation, but also to the category of workers. According to clause 3.23 of the Industry Agreement on Institutions Federal Service on hydrometeorology and monitoring environment for 2012 - 2014, approved by the All-Russian Trade Union of Aviation Workers, Roshydromet on February 28, 2012, for women working in subdivisions of the hydrometeorological service located in rural areas, where the working day is divided into parts with a break of more than two hours, a 30% increase in wages is established in in accordance with the Resolution of the Supreme Soviet of the RSFSR of 01.11.1990 N 298 / 3-1 "On urgent measures to improve the status of women, families, protection of motherhood and childhood in the countryside."

In the event that the supplement is set at the level of social partnership, employers who have joined the Agreement are obliged to pay the supplement in accordance with the terms of the relevant Agreement.

By order of the Ministry of Education and Science of Russia of March 27, 2006 N 69, the Regulation on the specifics of the working hours and rest hours of pedagogical and other employees of educational institutions was approved.

In accordance with clause 3.3 of this Regulation, in exceptional cases in educational institutions with round-the-clock stay of students, pupils (boarding schools, orphanages, boarding schools at educational institutions), in which educational and learning activities during the day, within the established norm of hours, the employer, taking into account the opinion of the elected trade union body or in agreement with it, may introduce for educators who carry out pedagogical work in groups of pupils of school age, a working day mode with dividing it into parts with a break of two or more hours in a row, with appropriate compensation for such an inconvenient working regime in the manner and in the amount provided for by the collective agreement. The break time between two parts of the shift is not included in working hours.

According to clause 3.16 of the Sectoral Agreement concluded between the Education Committee of the Roslavl District Administration of the Smolensk Region and the Roslavl City Organization of the Workers' Trade Union public education and science for 2011 - 2013, payment is made in the amount of 30% of the rate for the discontinuous nature of the work, if the break between lessons is more than two hours in rural educational institutions and boarding schools at the expense of budgetary funds, in urban educational institutions at the expense of funds savings wages and extrabudgetary funds.

The court concluded that the work of the plaintiffs is discontinuous, in connection with which the payment arrears are subject to collection wages for the discontinuous nature of the work.

See: Appeal definition Smolensk Regional Court of 11.06.2013 N 33-2514 / 2013.

3. For certain categories of employees, the division of the working day into parts is provided for by regulatory enactments.

For example, clause 9 of the Regulation on the specifics of the working hours and rest hours of tram and trolleybus drivers, approved by Order of the Ministry of Transport of Russia dated October 18, 2005 N 127, establishes that, with their consent, the working day (shift) can be divided into two parts. The division is carried out by the employer on the basis of a local normative act, adopted taking into account the opinion of the relevant elected trade union body. The break between two parts of the working day (shift) is established no later than four hours after the start of work. The duration of the break between parts of the working day (shift) when dividing the working day (shift) into parts in the daytime should be no more than two hours excluding time for rest and meals, at night - no more than six hours excluding time for rest and meals , and the total duration of daily work (shift) should not exceed the duration of daily work (shift) established by clause 8 of the said Regulation. The break between the two parts of the shift is provided in a place equipped for the rest of the drivers. The break time between two parts of the working day (shift) is not included in working hours.

According to clause 17 of the Regulations on the specifics of the working hours and rest hours of metro workers, approved by Order of the Ministry of Transport of Russia dated June 08, 2005 N 63, employees directly related to passenger service, as well as during work, the intensity of which is not the same during the working day (shifts ), the working day can be divided into parts. In this case, one break is established with a duration of more than two hours or two breaks of at least one hour each. These breaks include rest and meal breaks. The total duration of working time per working day (shift) must not exceed the duration of daily work (shift) established for a specific category of employees by the internal labor regulations of the organization. Break time between parts of a shift is not included in working hours.

The procedure and place for the provision of these breaks are established by the internal labor regulations of the organization, the time of granting and the specific duration of these breaks are established by the shift schedules.

Thus, the court indicated that, on the basis of the director's order, the work of conductors from April 9, 2011 was organized according to the spring-summer schedule. All conductors, including plaintiffs, are familiar with the order, which is confirmed by their signatures. In accordance with the spring-summer timetable, two breaks of less than two hours were organized during the shift in the movement of trams on the route of the plaintiffs' work on weekends.

Since the regulation on the remuneration of conductors provides for an additional payment for work with the division of the working day into parts, if the break between them was at least two hours, the conclusion of the court about the legality of the actions of the employer who stopped paying the said additional payment on those days when the break was less than two hours is justified, since the specified additional payment is of a compensatory nature. In those shifts when the interruptions in the work of the plaintiffs exceeded two hours, the surcharge was made, which is confirmed by the pay sheets available in the case materials.

Cm.: Definition Lipetsk Regional Court dated 01.02.2012 N 33-275 / 2012.

The court noted that paragraph 13 of the Regulation on the specifics of the working hours and rest hours of car drivers provides for the possibility of dividing the working day into parts with the consent of bus drivers working on regular city, suburban and intercity bus routes. The division is made by the employer on the basis of a local normative act adopted taking into account the opinion of the representative body of employees. The break between two parts of the working day is established no later than four hours after the start of work. The duration of the break between two parts of the working day should be no more than two hours excluding time for rest and meals, and the total duration of daily work (shift) should not exceed the duration of daily work (shift) established by clauses 7, 9, 10 and 11 of the named Regulation. The break between the two parts of the shift is provided at the place of deployment or a place designated for the parking of buses and equipped for the rest of the drivers.

The fact of establishing on the Syktyvkar - Ukhta route a break between two parts of the working day in five hours 15 minutes and the determination of the duration of such a break in the amount of five hours and 50 minutes is confirmed by the bus schedule and is not disputed by the society. Consequently, a violation of clause 13 of the Regulation on the specifics of the working hours and rest hours of car drivers takes place. On the basis of the foregoing, the court of appeal considers proven the violation by LLC "S" of the requirements of the law and the guilt of society in their violation. These actions of the defendant constitute an administrative offense under Part 3 of Art. 14.1 of the Administrative Code of the Russian Federation.

Cm.: Resolution Of the Second Arbitration Court of Appeal dated December 22, 2009 N A29-8715 / 2009.

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Question answer

Hello. I work as a system administrator at a school. 5 days work week. 7 hours work day. The director wants to make a discontinuous working day: from 8 to 13 and from 16 to 18, is this correct or not?

Svetlana Bubnova (Order a consultation)

Hello! The division of working time does not contradict the law, but there are certain nuances.

According to article 105 of the Labor Code of the Russian Federation:

In those jobs where it is necessary due to the special nature of work, as well as in the production of work, the intensity of which is not the same during the working day (shift), the working day can be divided into parts so that the total working time does not exceed the established duration of daily work ... Such a division is made by the employer on the basis of a local normative act, adopted taking into account the opinion of the elected body of the primary trade union organization.

That is, the division of the working day of workers into parts should be caused by objective reasons and the presence of special working conditions.

Please read the following article:

Labor legislation does not provide for such types of working hours as special or discontinuous.

In practice, discontinuous working hours mean dividing the working day into parts.

The working time regime, providing for the division of the working day into parts, in fact, is a special mode of work that is introduced in certain cases: in those jobs where it is necessary due to the special nature of labor, as well as in the production of work, the intensity of which is not the same during the working day. day (shift).

According to the first part of Art. 100 of the Labor Code of the Russian Federation, in addition to the duration of the working week (five days with two days off, six days with one day off, a working week with the provision of days off on a sliding schedule, part-time working week), includes the duration of daily work (shift), in including part-time workdays (shifts), start and end times of work, breaks in work, number of shifts per day, alternation of working and non-working days, which are established by the internal labor regulations in accordance with labor legislation and other regulatory legal acts containing norms labor law, collective agreement, agreements, and for employees whose working hours differ from the general rules established by the given employer - an employment contract.

Labor legislation does not provide for this type of working time regime as discontinuous, nor does it allocate separate species working hours special regime. Accordingly, the legislation does not contain the concepts and features of such working time regimes.

Rostrud, in connection with requests from employers and employees on issues related to the discontinuous working time (discontinuous nature of work), has repeatedly in its letters identified this mode with dividing the working day into parts (see, for example, Question: Discontinuous nature of work (RH). What This is? Payment Methods? (Information portal of Rostrud "Online Inspection.RF", September 2015); Question: How is a discontinuous working day paid (lunch - 3 hours)? (Information portal of Rostrud "Onlineinspection.RF", September 2015) ; Question: I work as a teacher of additional education in an orphanage. My work schedule is structured in a similar way: I work from 10.00 to 13.00, then a break from 13.00 to 15.00, then work from 15.00 to 16.00, then a break from 16.00 to 18.00 and again work from 18.00 until 20.00 Do I have to pay for a breaking day and on the basis of what regulatory documents? (Information portal of Rostrud "Online Inspection.RF", September 2015); Question: What should be the minimum and the maximum duration of rest (between parts of the working day) when establishing discontinuous work schedules for drivers? (Information portal of Rostrud "Online Inspection.RF", September 2015)). Note that in practice, this type of working time regime, as the division of the working day into parts, can also be called a "fragmented", "divided", "torn" working day * (1).

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Division of the working day into parts. Andreeva N. Dividing the working day into parts requires accurate accounting of the time payable. Registration of local regulations

Grounds for dividing the working day into parts

Categories of workers whose working day can be divided into parts

Unpaid breaks

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example

Registration procedure

STAGE 1. We develop the LNA project

STEP 2. We get a motivated opinion of the trade union committee (if any)

note

STEP 3. We approve the LNA

STEP 4. Introducing employees to LNA

STEP 5. We conclude additional agreements to labor contracts

Division of the working day into parts (Orlova E.)

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Commentary on Article 105 of the Labor Code of the Russian Federation

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Article 105. Division of the working day into parts

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