We establish an abnormal working day. The draft law on an abnormal working day is included in the State Duma of the Federal Law of the Nonormable Work Day

"Personnel. Labor law for personpath", 2011, N 2

In practice, in connection with the ambiguity of legal formulation, the non-normalized working day is used as a mechanism for concealing the processing of hours at overtime work and deprives employees of fair working conditions. The author argues how to fix the situation.

Legal assessment and general characteristics of concepts

The concept of a non-normalized working day was first formulated in labor legislation as a norm of law with the adoption of the Labor Code of the Russian Federation in 2002, this is definitely a positive fact. At the same time, the legal norm set out in Art. 101 TK RF, raises a lot of questions.

As follows from Art. 101 of the Labor Code of the Russian Federation, the non-normalized working day is a special mode of operation, in accordance with which individual employees may, by order of the employer, if necessary, to be attracted to the fulfillment of their labor functions outside the working time installed for the employee.

The ambiguity of the legal definition is that the legislator did not designate the evaluation criterion, according to which the posts and professions of workers can be attributed to the list of persons entitled to an abnormal working day. There is no answer to the question than caused by the need to use a non-normalized working day. There is no explanation, which means "episodic" in relation to the abnormal working day. Whether the written order of the employer is required for an abnormal working day (order) or sufficiently oral. And such a formulation in the article of the law, as "can be attracted," causes even fear. The fear is caused by the fact that the word "attract" in Russian means "to force." It is not by chance that attracting the work speaks in places of deprivation of freedom and in enterprises of labor therapy for mentally ill people.

The law determined the definition of a non-normalized working day, guided by the concept of overtime. Pay attention to the fact that in Art. Art. 101 and 99 of the Labor Code of the Russian Federation in the wording of legal definitions contain one and the same expression: "... by order of the employer outside the working time established for the employee." According to Art. 99 TK RF This expression is a legal definition of overtime. Overtime - i.e. Outside the working day installed for employee. But overtime work has the status of working time. She found her place in ch. 15 of the Labor Code of the Russian Federation, whereas a non-normalized working day is a regime, work order. It is located elsewhere in ch. 16 TK RF. We are talking about different legal concepts.

Working hours establishes the measure of labor in hours and thereby provides an employee to enjoy their right to rest. And modes represent a method of executing an employee of its labor function. Labor modes can be compared with technical means allowing to implement different options for the working day and work week within one type of working time. Using labor modes, it is possible to establish the features of breaks for recreation and nutrition. Working hours and labor modes have different goals, they solve their specific tasks in the process of organizing workers. Mix and replace them with each other is unacceptable.

Despite this, overtime work and abnormal working day are replaced by law, and in the practice of labor relations. First of all, it is seen from the formulation of their legal definitions given in the law. In addition, until recently, the interchangeability of overtime work with an abnormal working day was freely allowed in Art. 119 TK RF. This happened by replacing additional vacation, which should compensate for non-normalized work, high pay applied to compensate for overtime. As a result of the practice of applying the specified article of the Law, the leaders of enterprises, lawyers and employees of the personnel department have developed the opinion that Art. 99 of the Labor Code of the Russian Federation is the legal qualification of the processing of the clock over the working time set by the law, and Art. 101 TK RF is the illegal qualifications of the same process. Legal qualification is applied to the majority of workers, i.e. For them there is overtime work. And illegal qualifications - for individual categories of workers. They have all the same processing of working time received the name "Non-corned working day". As a result, the rule has developed: the more employees attribute to the list of persons who have an abnormal working day, the less difficulties, since there is no need to make overtime every time.

In the delimitation of a non-normalized working day from overtime, there is a first success. Success can be considered the fact that the Federal Law of 30.06.2006 N 90-FZ "On Amendments and Supplements to the Labor Code of the Russian Federation ..." Excludes the possibility of payment of non-corned working day. Before the entry into force of this Law, the Labor Code of the Russian Federation mistakenly offered to pay a non-normalized working day on the standards provided for overtime.

Thus, in the federal law, I found support for the idea of \u200b\u200bdistinguishing the non-normalized working day from overtime. On this basis, there was a further need for a study of an abnormal working day as a mechanism that decishes its specific tasks in the process of organizing workers. Especially since the sharpness of the question remained.

The revision of Art. 101 of the Labor Code of the Russian Federation with the name "Nonormal Work Day" deprives individuals of the right to a full-fledged rest. This is happening every time, at the "Order" of the employer, specialists are "attracted" to work in the mode of non-normalized working day. In the legal norm of the law regulating an abnormal working day, there are no restrictions on the duration of work outside the working time rate. But by the beginning of the next working day, these employees are obliged to appear without being late regardless of the amount of time spent on the eve. According to the rules of the internal labor regulation, without any exceptions. Under such circumstances, it is not possible to use daily holidays in the manner prescribed by law and sizes.

For comparison: overtime work, provided for Art. 99 TK RF, allowed not more than 4 hours for two days in a row and 120 hours per year. In addition, in the case of overtime work, the person can take advantage of the right to rest between the working days in additionally in the number of hours that are worked out overtime.

There are arguments that these workers have consciously signed an employment contract on the conditions of non-normalized working day, are untenable. The right of each employee for the daily rest of the established duration is one of the basic principles of legal regulation of employment relations recorded in Art. 37 Constitution of the Russian Federation and Art. 2 TK RF. Terms of employment contracts that contradict the basic principles for regulating labor relations cannot be called legitimate, and they cannot act, even if they are signed by the two parties.

And in the case of the production of overtime, and in the case of the use of a non-normalized working day, we are talking about work in conditions deviating from normal. As a deviation from the norm, overtime work is carried out by a general rule, with the written consent of the employee. And for the current "involvement" today, the law does not require the consent of the employee at all for an abnormal working day. This means that the specialist is obliged to fulfill the employer's order, even if I do not agree to work under conditions deviating from normal. The employee is not entitled to refuse. If he does not perform the order of the employer, it may be subjected to disciplinary punishment. Such a position of the employee is estimated as forced labor, i.e. Performing work under the threat to the use of any punishment. Based on the principles and norms of international law, in accordance with the Constitution of the Russian Federation, according to Art. 4 TK RF Forced labor is prohibited.

The situation is exacerbated by the fact that the legal standard contained in Art. 101 of the Labor Code of the Russian Federation, judicial practice is focused.

Example. Thus, the main technologist of the brewing plant Sergeyeva I. announced a reprimand with the deprivation of a premium for being late for 30 minutes. The worker appealed to the court with a request to recover in its favor of the premium. I explained that by order of the director was detained after work, since she had a non-corned working day. Performed the production task of the director to three o'clock at night. Given the time spent on the road, the need to care for children of school age in the absence of a full rest was not physically able to appear to work by the beginning of the day. Despite this, the court in the claims of the employee refused. The court did not find violations of the law when declaring a recovery worker with deprivation of a premium for being late for work. In the court decision, it was stated that the main technologist Sergeyeva I. ordered was established a non-normalized working day, which does not exempt it from the obligation to comply with the rules of the internal labor regulation. The plaintiff, like all employees, is obliged to come to work by the beginning of the working day without being late.

* * *

The main energy engineer Morozov K. By order of the Director, two days was delayed at work to organize the repair of energy equipment after the production accident. Then, at the end of emergency work, a few more days were delayed in production to organize and launch a new technology for taking into account electrical energy. At the end of the month, I asked to pay for overtime and provide for an annual holiday of 3 days for an abnormal working day. Since the request remained without attention, he appealed to the court. By the decision of the court in the payment of overtime, it was denied the fact that the main power engineering had a non-corrugated working day, so he could not be overtime. The current edition of Art. The 101 TC RF does not give grounds for the cancellation of this court decision.

Labor rationing and non-normalized working day

The objective characteristic of an abnormal working day, its place in the system of legal mechanisms should be sought in the region of laboring, and not within the work time, as is done in the current art. 101 TK RF. Working hours is the most important indicator of normalized labor, i.e. Measured, calculated and tariff labor, as part of which to talk about the abnormal working day is absurd. The normalized work is characterized by the presence of labor costs established for an employee (effort), known before the start of work. The norms are expressed by the amount of work in units of products or production transactions for performing per hour, shift, month, i.e. In the set section of working time. Establish the norm of labor is easy if the work is regular in nature, i.e. Performed day after day or at least once a quarter for a long time and stable according to the composition, i.e. Requires the same similarity of labor efforts covered by the qualification characteristic agreed in the labor contract.

The result of the rationing and tariffing of labor is the presence of an employee of an open salary or a tariff rate, which covers the content of the employment duties of the employee. A detailed study of the tariff-qualifying directories of works and professions of workers, as well as the qualification reference book of managers, specialists and employees, suggests that mass executive work is normalized in the Russian Federation.

Difficulties begin with misunderstanding that some categories of workers in their official powers, along with the main list of official functions, there are such duties, the execution of which ensures the organization and implementation of new industrial and management technologies. They are obliged to organize the work of performers in the introduction of new technologies for the production of goods and services, when introducing new techniques of work, new rules for accounting for financial and economic results, quality standards, in the implementation of the results of experimental, research and development work. Having studied the qualifying reference book, it can be found that these duties have managers of enterprises and their deputies, heads of structural divisions (departments, services) and some other leading experts (lead technologist, leading energy, deputy chief engineer, etc.).

The labor of these workers is divided into two parts. One part is a regular work performed by day per day and requiring some of the same work efforts. Such work is calculated and covered by official salary. The other part is the work on the organization and implementation of industrial and management technologies. This part cannot be measured and calculated because it is accompanied by the costs of additional, increased intellectual and physical efforts, which go beyond the framework established for the employee of the labor standards.

The existing rationing system in the Russian Federation, based on the establishment of norms in accordance with the costs of working time developed earlier and carry out measurements, did not work out the method of counting the labor counting, which is accompanied by the costs of additional, increased efforts.

In accordance with the Decree of the Government of the Russian Federation of 10/31/2002 N 787 "On the procedure for approving a single tariff-qualification reference book of works and professions of workers and a single qualifying reference book of managers, specialists and employees" at each enterprise there must be a list of posts, professions and works facing The basis of these reference books.

In accordance with the Decree of the Ministry of Labor of Russia dated 09.02.2004 N 9, approved by the procedure for the application of these reference books, the company should also have a list of works normed by the employer on their own. The rationing by the forces of the enterprise itself is carried out in accordance with Art. Art. 159, 160 of the Labor Code of the Russian Federation, with the use of already available standards for labor or using known rationing methods, in particular with the help of photography of the labor and production process, tormenting observations and timekeeping, taking into account the results of job certification.

The presence of these lists allows you to identify work requiring additional, increased efforts of the employee who cannot be measured and calculated with the help of well-known labor standards and normalization methods. Such work takes place at each enterprise, since the system of interaction of a person with implements of production assumes the presence of both massive work and work on the organization of this very fulfilling work, as well as work on the introduction of new industrial and management technologies. Such work enters a separate list and constitutes abnormal work.

To perform abnormal labor, only order (mode) or method of work is provided. This mode has a name - an abnormal working day.

Thus, the non-normalized working day is an order or method of performing labor duties during the organization and implementation of industrial and management technologies, in which it is not possible to measure additional, increased efforts by the employee with the help of well-known labor standards.

Non-normalized work has a crucial feature. It is characterized by the lack of established standards (time standards, production standards). It does not manage to take into account in the clock, nor in units of products, nor in production operations. And since it is not possible to accurately take into account and target, it means that it is impossible to reasonably pay a fixed part of wages.

The norm of labor is unable to establish on objective reasons:

there is a work, irregular in character or unstable in composition;
it is impossible to establish the volume and content of the work before it started;
it is impossible to establish a calendar shutdown date before it started;
the completeness of the coverage of the work performed by the working qualifications and the staff of the employee's official duties is unknown.

The work of specialists when using a non-normalized working day is also characterized by features:

specialists independently organize their work, determining the volume, content and timing of the task;
specialists distribute working hours at their discretion, i.e. In order to conscientious fulfillment of their official duties on the organization and implementation of the production or technological process, voluntarily comes to work before the start of the working day or delay after work;
the work day of experts can be divided into part of an indefinite duration depending on work irregular by nature and unstable in composition.

The concept of work, irregular in character and unstable according to the composition, needs to be decipher. If we proceed from the definition of working conditions, labor standards and labor standards given in the basic system of microelement standards (BSM-1), then we can say the following. An irregular nature is a job, which, depending on the production technology of goods and services, cannot be carried out regularly day after day or at least once a quarter for a long time. Unstable according to the composition is a job that does not allow to apply the same type of techniques and operations within the official duties of the employee, requires additional, increased labor efforts.

In the existing art. 101 of the Labor Code of the Russian Federation does not say anything about non-normalized work, the criterion of the assessment, according to which the posts of workers can be attributed to the list of persons eligible for the use of an abnormal working day. In the absence of a legal criterion in practice, a separate category of employees with an abnormal working day is mistakenly attributed to the secretary, the inspector of the personnel department, driver, technology and other workers who do not have any attitude towards non-normalized work, which means that an abnormal working day.

Unlike non-normalized working hours overtime, i.e. Working hours outside the normal duration is subject to payment in accordance with Art. 152 TK RF. The first two hours of operation are paid for at least one-hour size, and subsequent hours are not less than a double salary size (tariff rate). Since it is legally defined for overtime work for overtime, it means that the measurement and calculation of the employee's labor efforts is found in the process of its implementation. Accounting for labor efforts outside the normal duration of working time is made using a time standard. Accounting is carried out in hours. As stated in Art. 99 of the Labor Code of the Russian Federation, to ensure the accurate record of the work performed in the clock is obliged to the employer. Since outside the established normal duration of working time, the work of the employee managed to measure with the help of a time standard and pay in accordance with the established norm of labor, to post the non-normized working day in the same legal field scientifically and unfair.

While in the text Art. The TC of the Russian Federation is not indicated by the characteristic features and specific tasks of the non-normalized working day as a labor regime. Comments on this legal norm in the scientific literature are still explained about the non-normalized working day as a work outside the working time installed for the employee.

The basis for the use of non-normalized working day

The grounds for the use of these mechanisms also allow their substitution. In art. 101 of the Labor Code of the Russian Federation does not provide a list of cases that are the basis for an abnormal working day. It is said that "if necessary, employees may be episodically attracting work ...". At the same time it is unclear what is the need for and when it appears. The legislator also did not give an explanation, which means "episodic" in relation to the abnormal working day. In Russian, the concept of episodicity is characterized by an accident or incident.

In relation to the right, the accident is expressed in the spontaneity of the forces of nature (earthquake, flooding, etc.) and is a natural nature of emergency circumstances. The incident is associated with technical means (production accident, collaboration of building structures, etc.) and represents the technogenic nature of emergency. Emergency circumstances of natural and technogenic nature are grounds for overtime. They are directly named as grounds in Art. 99 TK RF. for example, overtime work is produced:

to prevent and eliminate the consequences of a production accident or natural disaster;
to eliminate circumstances that violate the normal functioning of water supply, heating, lighting, sewage, transport, communications;
to continue working with the aim of eliminating the possibility of emergency circumstances (damage to property, creating a threat to life and human health);
for the repair of mechanisms and structures, when their malfunction may cause termination for a significant number of employees.

As we see, all the cases listed are characterized by the random of natural forces of nature or an incident as a result of industrial accidents. In a word, episodic.

In its definition of the abnormal working day of Art. The 101 TC RF also speaks about episodic. It turns out that, for the use of a non-normalized working day and for overtime work, the law provides the same foundations! The result is obvious. The same foundations can easily replace the processing of hours with overtime work with an abnormal working day.

In fact, the foundation for an abnormal working day is fundamentally different from the bases for overtime. The basis for the use of a non-normalized working day is the need to introduce new production and management technologies at the enterprise. This necessity arises periodically. There is no relation to episodicity. The frequency is explained by the natural, the progressive process of economic development, the improvement of the productive forces and production relations. The introduction of new technologies for the production of goods and services, the results of experimental, research works, the introduction of new techniques, product quality standards occurs periodically. This happens regularly, after a certain period of time, with each new stage of the development of productive forces in the enterprise. Consequently, the need for an abnormal working day appears regularly, after a certain period of time, i.e. periodically. The need for an abnormal foundation is not associated with an accident inherent in the emergency circumstances of a natural nature, and is not associated with an incident, which is an emergency circumstance of man-made character.

Example. An example is the technology of producing glazed raw materials. It is periodically for the last 5 years, every 5 - 7 months, is improved by introducing new production technology. There is no doubt that periodically of individual categories of workers (specialists) of the enterprise there is a need to use a non-normalized working day as a method of fulfilling work requiring additional, increased efforts in the introduction of a new production technology. Using an abnormal working day is subject to compensation to additional leave.

As the new production technology introduces additional, increased efforts of workers acquire the properties of the same type. They are repeated from day to day for a long time, i.e. become regular and stable. Now these efforts can be measured with the help of well-known standards for work and target, and therefore, it is economically reasonable to pay.

Practice applying an abnormal working day

When used in labor relations of a non-normalized working day, it is necessary to take into account the fact that the obligations for the organization and implementation of industrial and management technologies are provided for in the official instructions of individual categories of workers.

In the collective agreement of the enterprise, the evaluation criterion should be called, according to which the list of works and posts of specialists with an abnormal working day has been formed. In accordance with it, you should specify the number of days of additional charged holidays for each specialist. In the official instruction of a specialist should be allocated its responsibilities for the organization or implementation of industrial and management technologies, since they require additional, increased intellectual and physical efforts.

It is well known that for the conscientious performance of official duties does not require a special order of the employer, no oral or written. The employee is obliged to fulfill them in full by the law. It is not an exception of the employee's work duties, which is associated with the organization and implementation of industrial and management technologies, requiring additional, increased labor efforts. The need for a conscientious performance of their labor duties is indicated by Art. 21 TC RF.

Accounting in the mode of non-normalized working day begins with an appropriate order, which recorded the right to use the specified labor procedure for individual categories of workers.

Then, each time on the basis of the office note of this specialist, it should be recorded in the journal of accounting for non-normalized work with an indication of the production task, with the presentation of a new method and acceptance of labor, production and management technology used to solve the problem.

To control abnormal labor, it is necessary to report the same specialist about the technological or organizational productivity of the work done.

The initiative to use a non-normalized working day with individual employees can also belong to the employer. In this case, in the order of the head of the enterprise, it must be presented first of all the reason that causes the need to use a non-corned working day. And the production task, the content of which is the need to introduce a new method and acceptance of labor, new production and management technology. Under the content of the order, the employee must leave his consent certified by a personal signature.

It should be noted that it should be noted that a specialist employed work scheduled for the time-spent time is not done on this work, even if it was carried out outside the normal duration of working time. After all, if the hours of operation outside the normal duration of working time mark In the accounting table of working hours, it will mean that the employer managed to measure and calculate with the help of the time spent the work of a specialist in the clock. At the same time, the labor of the specified specialist receives a legal status. normated Labor and nothing to do not have anything to have a relationship. It will be overtime labor payable in accordance with Art. 152 TK RF.

Bibliography

Dictionary of the Russian language / Ed. S.I. Ozhegova. M.: Russian, 1989.
Scientific research of the Russian humanitarian scientific fund N 09-02-00654A "Development of a methodology for calculating time standards using trace elements and theory of experimentation planning" // Bulletin of work and social insurance. 2010. N 1.
Shibayev A.A. The main provisions of the methodology for developing time standards using the domestic base system of microelement standards of time (BSM-1) // Bulletin of work and social insurance. 2010. N 1.

V.Vanyukhin

Moscow state

open University,

head

legal center "Science",

federal

Abnormal working day

Dzugkoeva Zarina Vadimovna,

postgraduate student Department of Labor Law and Social Security Rights of the Moscow State Law Academy. O.E. Kutafina (MGU)

Brief abstract: The article is devoted to the study of one of the types of working time mode - non-normalized working day. The content of the concept of "non-normalized working day" is analyzed, conflicts are detected in the legal regulation of this regime, proposals are made to improve the current labor legislation in the specified area: determination of the duration of time and compensation, as well as the circle of persons who have no non-corned working day should be established.

This article Is Dedicated to One of the Forms of Working Conditions - Unlimited Workday. The article analyzes the content of such concept as «unlimited workday», reveals conflicts in legal regulations of such order, and makes suggestions on improvement actual labour law in mentioned sphere: definition and compensations, and also circle of persons to whom unlimited workday shouldn " T to Provide.

Keywords: working time mode; irregular working hours; Duration of working time; episodic; necessity.

Working Time Regimen; unlimited workday; Working Time Duration; Episodically; Necessity.

Abnormal working day is a special mode of operation, according to which individual workers may, by order of the employer, if necessary, to be rapidly involved in the performance of their labor functions outside the working time set for them. The list of posts for workers with an abnormal working day is established by a collective agreement, agreements or a local regulatory act adopted, taking into account the opinion of the representative body of workers (Article 101 of the Labor Code of the Russian Federation) 1.

We believe that the term "non-normalized working day" used by the legislator is not correct, since "non-nuclearness" as such is not related to the working day as a whole (it is normalized, i.e. established duration), and to work outside the undertake of the working day which, within the meaning of the law, should also be normalized and taken into account. In addition, in Art. 101 of the Labor Code of the Russian Federation speaks only about the day, and ch. 16 of the Labor Code of the Russian Federation regulates the "work time mode" as a whole.

You should agree with L.Ya. Ostrovsky,

that the non-normalized working day is not a special time of working time, different from a normal or abbreviated working day, and from this point of view cannot be put in a row with them.

Historically, the main criterion for an abnormal working day was called an increase in the amount of work. So, for example, N.G. Alexandrov identified "non-corned working day as a day that is not limited in time, but limits the amount of work" 3. E.A. Panova Non-normalized working day is considering as an unlimited firmly established number of hours, and the amount of work determined by the amount of work 4.4 The authors of the encyclopedic dictionary "Labor law" determine the non-corrugated working day as "the view of the working day of employees, whose work is not limited to the nature of their activities "five.

In our opinion, such definitions do not meet the legal nature of the working day. Beer

1 Labor Code of the Russian Federation. Federal Law of December 30, 2001 No. 197-FZ // SZ RF. 2002. No. 1 (part 1). Art. 3.

Ostrovsky L.Ya. Working hours on Soviet labor law

devices. MN: Publishing house EN BSSR, 1963. 157 p.

3 Alexandrov N.G. Soviet labor law. Gizurizdat, 1952. P. 203-204.

4 Panova E. A. Legal labor regulation in the state farms. M., Gizurizdat, 1960. P. 56.

5 Labor law: Encyclopedic dictionary. M.: BSE, 1959. P. 246.

for the criterion for determining the concept of non-normalized working hours, the scope of work or a circle of responsibilities, the authors underestimate the importance of working time as the most important element of labor measures.

In art. The 101 Labor Code of the Russian Federation implies the mode of operation that characterizes the temporary component of the worker's work. This is also evidenced by the names of the section and the head of the Code - "Working Time" and "Working Mode".

1) Non-normalized working day is a special mode of operation;

2) it is established only for individual workers, the list of which should be enshrined by the initial collective agreement or other regulatory act;

3) to attract employees to work on the conditions of a non-normalized working day, an employer order is needed;

4) the normalized working day mode is applied solely if necessary;

5) to work on the conditions of a non-normalized working day, employees can be attracted by episodically (that is, on the case of case, and not systematically);

6) an abnormal working day means going beyond the normal duration of working time;

7) In the conditions of a non-normalized working day, the employee must do no additional work, but its own labor functions.

Thus, with respect to the non-normalized working day, the qualifying feature of a special mode of operation acts on its difference on any of the above parameters from the generally installed mode of operation in the organization. Moreover, in accordance with the content of the criterion specified in paragraph 6, such a difference should be in the direction of increasing from the norm. Such an explanation seems necessary due to the fact that and part-time, and the part-time work week, and hourly payments are also the features of the working time mode, however

these provisions in this case do not act as qualifying.

The literature expressed an opinion on the need to establish an extended working day for persons whose processing is constant in nature. 6 In our opinion, such a point of view is not consistent with the position of the legislator. Non-normalized working day only allows for possible processing, and does not imply a recycling that is constant. Therefore, the provision when the individual categories of workers who have a non-normalized working day (for example, top managers) are systematically operating in extracurricular times, is abnormal. To eliminate such a position, it is advisable to change the working time mode, set them a summable accounting of working time.

The definition and content of the concept of the mode of operation causes lively disputes among labor law specialists .7 so, the lack of an established duration of the non-normalized working day gives grounds to consider it as an estimated concept in labor law. First, on the subjective composition of the establishment - the non-corned working day is associated with the list. Secondly, the duration of the labor of persons with an abnormal working day cannot flow impossible, indefinitely in time. The actual importance of the non-normalized working day is not in the absence of state (legislative) regulation, but in the fact that under certain circumstances, in order of exception and under the conditions of special material compensation (additional leave), work is allowed over.

We assume that Art. 101 TK RF does not contradict Art. 37 Constitution of the Russian Federation and Art. 2, 4, 21, 22,

6 Venediktov VS Legal regulation of the rational use of working time: author. diss. ... on the sister. Cand. jurid science Kharkov, 1984. 15 e.; Voevodenko N.K. Improving labor legislation on employees with an abnormal working day // Problems of state and law. Proceedings of researchers and graduate students. M., 1974, vol. 9. P. 199-208, etc.

7 Provisian A.I. Working hours and working hours on Soviet labor law. M.: Gizurizdat, 1963. 182 e.; Maksinova L.A. Work day and working week for Soviet Labor Law: Author. diss. ... on the sister. Cand. jurid science M., 1962. 16 e.; Maksinova L.A. Problems of working time control in the USSR. M.: Jurid. Lit-RA, 1969. 216 e.; Silayev V. Nonormated working day // Socialist legality. M., 1970. No. 5. P. 68-69, etc.

91, 99 TK RF. Article 37 of the Constitution of the Russian Federation establishes a ban on forced labor to which in accordance with Art. 4 of the Labor Code of the Russian Federation, in particular, the work that the employee is forced to continue the use of any punishment (violent impact), according to the Labor Code of the Russian Federation, it has the right to refuse its implementation, including in connection with the payroll paid it not in full size.

The worker working on the conditions of a non-corrupted working day is currently attracted to work outside the working time established for it (in fact to overtime work) in a simplified manner without a clear regulation of such concepts as "if necessary" and "Episodically" (for comparison : The procedure for attracting overtime works was established by Art. 99 of the Labor Code of the Russian Federation), does not receive payment for his work in violation of Art. 37 of the Constitution of the Russian Federation, Art. 21 and art. 22 of the Labor Code of the Russian Federation, and for the refusal of working outside the working time established for it can be attracted to disciplinary responsibility in accordance with ch. 30 TK RF. At the same time, in violation of Art. 91 TK RF, the employer does not take into account the time actually spent by the employee in excess of its duration, which entails a violation of the limit on overtime, established by Art. 99 TK RF. The consequence of an increase in the actual working time duration is to reduce the resting time, during which the employee is free from the execution of labor duties and which it can use at its discretion, which does not correspond, in particular, the norms of Art. 37 of the Constitution of the Russian Federation, Art. 2, 21 and 22 TC RF.

New edition of Art. 101 TC RF

Irregular working hours - A special mode of operation, in accordance with which individual employees can by order of the employer, if necessary, have been rapidly involved in the fulfillment of their labor functions outside the working time set for them. The list of posts of workers with an abnormal working day is established by a collective agreement, agreements or a local regulatory act adopted, taking into account the opinion of the representative body of workers.

An employee operating, non-normalized working day can be established only if an incomplete working week is established by the agreement of the parties to the employment contract, but on full working day (shift).

Commentary on Article 101 of the Labor Code of the Russian Federation

Non-normalized working day is a special mode of operation, in accordance with which individual workers can, by order of the employer, if necessary, to be rapidly involved in the fulfillment of their employment functions outside the normal length of working time. The list of posts of workers with an abnormal working day is established by a collective agreement, agreement or the rules of the organization's internal labor regulation.

The peculiarity of the time in question is that the employee obeys the general regime of the organization's work, but can be delayed at work at the request of the employer to fulfill its employment duties over the usual work shift or call to work before the start of the working day.

It should be noted that workers can be attributed to work with an abnormal working day of workers only to fulfill their employment functions that they must exercise under an employment contract. Therefore, it is impossible to oblige the employee to perform any other types of work, including outside the normal duration of working time.

The Labor Code of the Russian Federation establishes that the non-normalized working day is established only for individual workers included in the special list (it is attached to the collective agreement or the rules of the internal schedule in force in the organization). This list can also be established in sectoral, regional and other agreements.

Abnormal working day can be used for persons administrative, managerial, technical and economic personnel; persons whose work is not amenable to accounting in time; persons who distribute time at their discretion; persons whose working time is crushed into parts of an indefinite duration by nature.

It should be paid to the fact that by applying the rules of Article 101 of the Labor Code of the Russian Federation, the employer should not obtain the consent of the worker himself or the representative body of workers to attract (in the days of the production need) of workers to work in excess of the time of work time. This right employer is already provided in the context of an employment contract. The employee at the same time is not entitled to refuse to perform such works. Otherwise, there is a gross violation of labor discipline. Note that this article contains the definition of non-normalized working time, which says that, in accordance with this work mode, employees can be involved in the performance of their labor functions outside the working time duration established for this worker.

The establishment of an abnormal working day does not mean that these employees do not apply the main norms of labor legislation on the standards of working time and rest time. Therefore, bringing to work outside the working time set for them cannot be systematic.

Since the mode of operation with an abnormal working day involves certain processing over the normal duration of working time, the Code, as compensation, provides that an annual additional paid vacation is provided to employees with an abnormal working day, the duration of which is determined by the collective agreement or the internal labor regulations. In the case when such a vacation (at least three calendar days) is not provided, recycling over normal working hours is compensated with the written consent of the employee as overtime work (Art. 119 of the Labor Code of the Russian Federation).

Another comment to Art. 101 of the Labor Code of the Russian Federation

1. The peculiarity of the normalized working day regime is that the employee may undergo his employment responsibilities outside the duration of working time established for him in accordance with the Labor Code, other federal laws and other regulatory legal acts of the Russian Federation, collective agreement, agreements, local regulatory acts, employment contract. In art. 101 of the Labor Code of the Russian Federation emphasizes that such recycling is allowed only if necessary and should be worn, but an episodic nature.

2. Employees are usually included in the list of posts of workers with an abnormal working day.

The normalized working day mode is often used by employers to regulate the so-called "recycling", but at the same time causes a lot of discussion.

Employers are usually confident that the non-normalized working day is not limited. Of course, this is a very common mistake associated with the misunderstanding of the norms of labor and recreation established by the law and at the same time unreasonable desire to save on payments from the Foundation for the Office of the Organization. That is, the establishment of an abnormal working day is a kind of optimizing staff costs. Of course, this is a convenient position that is approved by financial controllers, but does not always comply with the standards of labor legislation.

Meanwhile, last year an attempt was made to limit the number of hours of "recycling" 120 hours per year, but at the current time the corresponding law is still under consideration. Moreover, the State Duma Committee on Federal Device and Local Government Affairs recommended the Lower Parliament Chamber to reject this bill.

Let us try to figure out how true the interpretation of the law on the non-normalized working day in favor of the employer in relation to commercial organizations, in which the temptation of the abuse of the employer is most often arising.

How long does the non-normalized working day last?

As we know, the law defines the norms of labor and recreation, based on the work of the work of work. Working conditions with an abnormal working day are still an estimated category of the employer. And he often understands a non-normalized day as having a beginning, but not end. Of course, this approach to the interpretation of the law is beneficial to the employer, but, as a rule, an employee is unprofitable. Does this mean that the truth is on the side of the employer?

In our country, the norm of working time is 40 hours per week (Art. 91 of the Labor Code of the Russian Federation), that is, at a five-day work week, one day accounts for 8 hours of working time. At the same time, there are cases when this rate can be exceeded without violating the norms of the law. In such cases, as we know, overtime and non-normalized working day.

For overtime works in law, there is a clear limitation - no more than 120 hours per year. Moreover, it is prohibited to attract an employee to overtime work for more than 4 hours in a row. This is due to the fact that during processing the balance between work and recreation is disturbed, which ultimately leads to ineffective work and unsatisfactory results.

Unlike overtime, there are no such restrictions on non-normalized working day, there are no restrictions established by law to attract overtime, no guarantees and compensation associated with such work, the work of workers with an abnormal working day does not apply.

Let's try to figure out why the legislator allocates an abnormal working day into a separate category of excess labor, in a kind of special work time. According to Art. 97 of the Labor Code of the Russian Federation, work in the mode of non-standard working day is the work beyond the established duration of working time. That is, we are talking about excessive, additional, which goes beyond the work day of work. Law in Art. The TC of the Russian Federation made a reservation on the episodicity of attracting to such work, but it did not solve the problem with unscrupulous use of labor. Criteria or signs of episodicism in regulatory legal acts are currently absent. And compensation, which the employee receives instead of its excessive labor, sometimes explicitly lower than these labor costs.

Especially note that the introduction of a non-normalized working day for employees does not mean that they do not apply to the rules that determine the time and end and end time, the procedure for accounting for working time, etc. These workers on the general reasons are exempt from work in the days of weekly rest and Holidays. Therefore, to attract workers who have been installed non-normalized working day, to work in their weekends and non-working holidays, only with the use of the provisions of Art. 113 and 153 TK RF.

Who can be installed non-normalized working day?

The list of posts for workers with an abnormal working day is not defined by regulatory legal acts, therefore, as a rule, it is installed in the local regulatory act of the employer, for example, the rules of the internal employment regulation or the current accounting regulations.

Exception is to establish a non-normal working day to drivers. So, according to Part 2 of Art. 329 TK RF Features of the working time and rest time, working conditions of individual categories of workers whose work is directly related to the movement of vehicles, are established by the Ministry of Transport of Russia.

In accordance with the Regulations on the peculiarities of the working time and recreation time of drivers of cars, an abnormal working day can be installed:

Cars of passenger cars (except for car taxi);

Drivers of expeditions and survey parties engaged in geological exploration, topographic-geodesic and survey work in the field.

The number and duration of workers shifts on work schedules (replacement) with an abnormal working day of drivers are established on the basis of the normal duration of the working week, and the days of weekly rest are provided on the general grounds.

It should be noted that the normalized working day has interesting features:

It can be established for a specific position, and not for the structural unit as a whole;

Attraction to work in excess of regulatory time should be due to the production necessity;

Types of work performed in the extensive time should not differ from the usual work performed within the framework of the employment contract, the official or working instruction.

How to install an abnormal working day?

The condition for work in the mode of non-normalized working day must be consolidated in the employment contract with the employee. We give the approximate wording:

2.1. The employee is installed non-corned working day.
2.2. Annual additional paid vacation for non-corned worker's work day is six calendar days.

A local regulatory act, which establishes a list of posts with an abnormal working day, as a rule, the rules of the internal labor regulation (see example).

In order for the employee to be installed with an abnormal working day, to attract to excessive work, a fairly written or oral order of the employer or its own understanding of the need for this. By the way, to attract an employee to overtime work, an employer should comply with a number of conditions, including the consent of the employee.

It should be remembered that the employer has the right to attract workers with an abnormal working day to work outside of normal working hours only to fulfill the work due to the employment contract, and cannot be entrusted with other work. That is, if the employee works by the office, it cannot be attracted to the fulfillment of the driver or the secretary (for this it will already be necessary to conclude an employment agreement on part-time work).

Important nuances

1. An employee who has been installed non-normalized working day cannot refuse to work outside the working day (shift) if there is a need for this. Such a refusal to the employer may regard as non-fulfillment of labor duties and attract an employee to disciplinary responsibility.

2. Abnormal working day is an episodic attraction to supernorumatic work. That is, in order to comply with the balance of working hours and rest time, it is possible to work on top of the norm from time to time, and not every day.

3. Execution of work over the standard does not mean that it is possible to perform any work that is not named in the job instruction. Duties from the employee no longer becomes, only the time spent on work increases.

4. A undoubted advantage for an employee working in a non-normalized working day is to establish an additional paid leave with a duration of at least three days. This holiday can be attached to the annual basic paid leave or replace with cash compensation (according to the employee).

5. If you need to install an abnormal working day to a specific employee, you need to comply with the procedure for documenting such a regime.

6. The established mode of non-normalized working day allows you to delay the employee at work without registration of overtime and, accordingly, its payment at high rates.

7. The employer does not need to keep records of processing and monitor their limits.

8. The abnormal working day does not apply to work on weekends and holidays, only on workers for a particular employee days.

9. If the employer abuses the right to attract to work in the conditions of a non-normalized working day, the employee may apply to the labor inspection or a court (Article 352, 356, 391 of the Labor Code of the Russian Federation). As a result, systematic processing can be recognized as overtime and oblige an employer to pay appropriate compensation. In addition, for violation of the norms of labor law, the employer threatens administrative responsibility under Art. 5.27 Code of the Russian Federation on administrative offenses.

How to relax in the conditions of a non-normalized working day?

As we have already noted, processing in conditions of non-standard working days are compensated by the provision of additional days to leave. The duration of this vacation cannot be less than three calendar days if a large duration is not established in local regulatory acts of the organization (Article 116, 119 of the Labor Code of the Russian Federation; paragraph 3 of the rules for providing an annual additional paid vacation to employees with an abnormal working day in federal state institutions).

Counting rules experiencenecessary to obtain additional paid vacation for an abnormal working day, not established in labor legislation. Traditionally, such an experience is determined by analogy with experience for the main paid vacation, that is, it turns on:

Actual work time;

The time when the employee actually did not work, but for him, in accordance with regulatory legal acts, a collective agreement, agreements, local regulatory acts, the employment of work (position) was maintained;

The time provided at the request of a vacation employee without salary preserving, not exceeding 14 calendar days during the working year.

Accordingly, it does not turn on in this experience:

The absence of an employee at work without good reasons, including due to its suspension from work in cases provided for by Art. 76 TK RF;

Time of child care leaves before reaching them by the law by law.

An important point is the possibility of replacing additional leave for non-corrugated working hours by monetary compensation on the application of the employee with restrictions in relation to certain categories of employees (Article 126 of the Labor Code of the Russian Federation).

Additional paid vacation for abnormal working day or cash compensation is provided either on the basis of the schedule of vacations, or by the written statement of the employee. The application is drawn up in an arbitrary form (unless, of course, its form is not approved by the local regulatory act of the organization) and is submitted to the personnel service in the order established in the organization.

The text of the provision of additional leave may be:

Please provide me with an annual additional paid vacation for an abnormal working day from August 1, 2018 for three calendar days.

If the employee decides to receive monetary compensation instead of additional leave, it may compile the following content:

Please replace me with monetary compensation of 6 calendar days of annual additional paid leave for an abnormal working day.

In conclusion, I would like to say that in terms of establishing a non-normalized working day there is a fairly free approach to the interpretation of the law. You can change the situation only by changing the norm of the law. Mentioned at the beginning of the article, the bill 1 is an attempt to solve the problem of abnormative use of workers without any accounting and, accordingly, payment. But he only suggests restricting the time by setting the recycling limit during the year.

The author of this article believes it is appropriate to provide for the categories of workers who can enter an abnormal working day, and considers it reasonable to establish a clear concept of non-normalized working day, identifying distinctive tests from overtime, since, as we know, employers all doubts are usually interpreted in their favor.

In addition, according to the author, it would be worth it to establish a balance between labor costs of an employee working in conditions of non-normalized working time, and provided to him with additional leave by establishing a proportional ratio of spent exhaust time and compensation for it.

For this, of course, it is necessary to take into account the work of the employee in the prescribed manner and documented this - by order and mark on the working time accounting table.

Bill No. 134447-7 "On Amendments to Article 101 and 119 of the Labor Code of the Russian Federation in terms of restricting the use of a non-normalized working day".

00:01 - REGNUM.

The draft law on the abnormal working day was made to the State Duma deputies from the LDPR headed by Igor Lebedev, Transfers the correspondent IA REGNUM.March 28. The adoption of the draft law will protect the legitimate rights and interests of workers on vacation and on the duration of working time established by the Federal Law, while limiting the right of the employer to apply the regime of a non-corrupted working day and establishing adequate compensation to employees for processing, the authors note.

Thus, according to parliamentarians, the employer, planning the application of a non-normalized working day, should consolidate in a collective agreement or a local regulatory act adopted, taking into account the opinion of the representative body of workers, not only the list of posts of workers with an abnormal working day, but also an exemplary list of exceptional cases in which such employees can carry out their labor functions outside the work day established for them (shift), as well as the procedure for taking the time actually spent by them outside the work day established for them (shift).

Employees with an abnormal working day are distributed by the employer the rules that determine the start and end and end time, resting time for recreation and nutrition. "These workers on the general reasons are exempt from work on weekends and non-working holidays," said one of the authors of the initiative Yaroslav Nilov.

In the legislation, it is proposed to register that an employee who has been installed for a non-corrugated working day may, if necessary, express its functions outside the working day established for it (shift) not only by order of the employer, but also from his knowledge or consent.

It is not allowed to install a non-normalized working day for pregnant women, workers under the age of eighteen, as well as employees who are prohibited by the state of health, notes Nilov.

Conditions are prescribed under which an employee working on the terms of incomplete working time can be installed a non-corrugated working day - only if the employee has an incomplete working week, but on a full working day (shift).

The draft law has established a maximum number of processing hours in the mode of non-normalized working day: the time actually spent by the employee outside the working day (shift) should not exceed 120 hours per year. Upon reaching the maximum number of hours, an employee can be attracted to work only according to the rules of attraction to overtime working with its respective compensation.

It is proposed to register the duration of the annual additional paid vacation for an abnormal working day - from three to fifteen calendar days, the procedure for its definition is established.

The employer undertakes to provide accurate accounting of the time actually spent by each employee with an abnormal working day outside the working day established for it (shift).

From the last rule, as well as the rule of determining the duration of additional leave, one exception was made: they do not apply to heads of organizations (branches, representative offices or other separate structural units), their deputies and chief accountants, as well as those who have entered into employment contracts of members of collegial executive bodies of organizations, Since it is not possible to organize the time of their work in the clock. Features of the application of their non-normalized working day can be established by the constituent documents of a legal entity (organization), local regulatory acts, employment contracts or decisions of the employer authorized by the legal entity, as well as the owner of the property of the organization or authorized by the owners of individuals (organs).

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