Overtime work and weekend work: problems of application of legislation. Why shouldn't overtime work exceed the regular schedule? Labor code overtime

The law allows employees to be involved in it only in special cases, and almost always the employer must obtain their consent to processing. The procedure for engaging in overtime work must be strictly observed so as not to have problems with regulatory and law enforcement agencies.

Working overtime: what employers need to know

The main requirements that must be observed when involving subordinates in overtime work are set out in the Labor Code. In particular, article 152 of the Labor Code of the Russian Federation explains how overtime work should be compensated, and article 99 lists situations when it is permissible. In the 99th article, as well as in separate articles of the Labor Code of the Russian Federation, the categories of employees who are prohibited from working overtime are indicated.

Overtime and its limitations

The boundaries established by law concern not only the definition of who cannot work overtime, but also the procedure for attracting workers to “overtime”. It is not allowed:

pregnant employees, underage workers (99th article of the Labor Code of the Russian Federation);
persons registered under a student agreement (Article 203 of the Labor Code of the Russian Federation);
workers with medical contraindications (for example, the still valid Decree of the Council of People's Commissars of the USSR No. 15 of 01/05/1943 does not allow people with an open form of tuberculosis to work overtime).

Involving other employees in overtime work in most cases is possible only with their written consent. It is not required only in some situations, namely (99th article of the Labor Code of the Russian Federation):

if the employee's actions are to prevent a possible catastrophe, industrial accident, etc.;
if the need for work is dictated by emergency circumstances (for example, the introduction of martial law or a natural disaster);
if you need to establish (ensure) the functioning of centralized systems - heating, water supply, etc.

Involving an employee in overtime work is allowed, taking into account the opinion of the trade union, if his cell is at the enterprise (which, however, is very rare today).

Overtime work for disabled people, women with children under 3 years of age is allowed only with their written consent, if it is not prohibited by them for health reasons (in accordance with the medical report), and they must familiarize themselves with their right to refuse overtime work against signature.

Occupational Restrictions

For representatives of certain professions, there are additional restrictions. So, the duration of overtime work of drivers should not exceed 4 hours - for two days in a row. And the number of hours worked per year should not exceed 120. This rule was established by Order of the Ministry of Transport of the Russian Federation No. 15 dated 08.20.2004. It fully complies with Article 99 of the Labor Code, which determines the maximum duration of overtime work. Every employer must comply with this rule.

However, another document ("Sanitary Rules for the Occupational Health of Car Drivers" dated 05.05.1988, clause 5.3) does not allow drivers to work overtime:

driving experience less than 3 years;
over 55 years old;
long and often ill during the year - at least 3 times, one of which lasted more than 30 days;
admitted to work as an exception (by the medical board).

What is the duration of overtime work for each employee holding a certain position can be established not only by a departmental order, but also by a local act of the organization, for example, by the relevant regulation. The main thing is to adhere to the requirement mentioned above: the maximum duration of overtime work should not exceed the norm fixed in the 99th article of the Labor Code.

Some professional affiliation entitles you to a reduced working day. In particular, it is established for physicians and teachers by articles 333, 350 of the Labor Code. In this case, overtime is recognized as work outside the reduced shift.

Accounting for overtime

Since overtime work should not exceed a certain number of hours per year, the employer is obliged to keep a strict calculation of how much time each of his employees worked in excess of the norm. The information is entered on the time sheet.

Overtime work with a summarized accounting of working time is considered as such if the number of hours worked exceeds the norm for a certain time. This means a situation where a separate shift can be less or more than a normal working day, but these "deviations" are balanced within the selected accounting period - a month, a quarter, a year (Article 104 of the Labor Code).

How is overtime compensated?

Overtime work, for whatever reasons it is not needed, is paid to employees additionally. The procedure for its payment is determined by the 152nd article of the Labor Code, from which it follows that the first two hours of processing are compensated by subordinates in one and a half times, and in excess of them - already in double. And these are the minimum amounts of additional payment that the employer has the right to increase.

The same article of the Labor Code states whether overtime work can be compensated for by additional rest. This is possible at the request of the employee himself. In this case, the time of his rest should not be less than the time of processing.

The beginning and end of the working day is provided, in accordance with Article 100 of the Labor Code, by the internal regulations. And it is important to note that overtime work is always entrusted to the employee by order (instruction) of the management. If a subordinate, on his own initiative, is delayed at the workplace, his processing is not “overtime”, and the employee is not entitled to compensation by law.

The legislator defines work in excess of the normal working hours outside the accounting period established for this employee as overtime or as work on irregular working hours.

Overtime work- this is the performance by the employee of his labor function outside the normal one at the initiative of the employer or with his knowledge.

Overtime involves both exceeding the norm and violating it. At the same time, according to the Labor Code of the Russian Federation, in some cases, the consent of the employee is not required (part 3 of article 99), in others, work is performed only with the written consent of the employee (part 2 of article 99) and is carried out taking into account the opinion of the elected body of the primary trade union organization (part 4, article 99).

Overtime work is associated with increased energy costs and a reduction in rest time, therefore, labor legislation establishes a number of guarantees for those who perform it. According to the Labor Code of the Russian Federation, these include, in particular: limitation of overtime work (four hours for two consecutive days and 120 hours a year - part 6 of article 99); increased pay (for the first two hours at least one and a half times, for the next hours - at least twice - Art. 152); a special procedure that determines the procedure for engaging in overtime work; the prohibition to involve in overtime work workers in need of increased social protection, for example, pregnant women and workers under the age of 18 years (part 5 of article 99); a special procedure for involving employees of certain categories in overtime work. Thus, the performance of overtime work by disabled people, women with children under the age of three years, is allowed only with their written consent and provided that this is not prohibited to them for health reasons in accordance with a medical report. These workers must be familiarized against signature with their disposition to refuse overtime work (part 5 of article 99 of the Labor Code of the Russian Federation).

These guarantees also apply to employees with disabled children under the age of 18; workers caring for sick members of their family in accordance with a medical certificate issued in accordance with the procedure established by labor legislation; mothers and fathers raising children of the appropriate age without a spouse (part 3 of article 259 of the Labor Code of the Russian Federation), and for guardians (custodians) of minors (art. 264 of the Labor Code of the Russian Federation).

The head of the organization issues an order (instruction) to involve employees in overtime work. The order indicates the basis for engaging in overtime work, for example, the need to eliminate the consequences of an industrial accident, the prevention of an accident at work (Article 99 of the Labor Code of the Russian Federation). This order indicates the surname, name, patronymic of the employees involved in its implementation, as well as the duration of such work.

Judicial practice proceeds from the fact that compliance with the procedure established by law for attracting employees to overtime work is mandatory. So, if, in violation of the requirements of the law, the order (instruction) on engaging in overtime work was not issued by the head of the organization, and the employees worked after the end of the shift on the basis of an oral instruction from the head of the unit, for example, the head of the shop, then payment for their work should be made in an increased amount as overtime.

Part 2 Art. 99 of the Labor Code of the Russian Federation contains a list of overtime work, the performance of which requires the written consent of the employee. Such cases include the need to complete the work that has been started, if its failure to do so can lead to serious consequences, the performance of temporary work on the repair and restoration of mechanisms or structures, the failure of which may cause a significant number of employees to stop working, as well as the continuation of work if the replacement employee does not appear, if the work does not allow a break.

The list of circumstances that allow the employer to involve employees in overtime work without their written consent is given in Part 3 of Art. 99 of the Labor Code of the Russian Federation. This refers to emergency circumstances that endanger life, normal living conditions of the population or part of it, the performance of work necessary to prevent disasters, industrial accidents, eliminate the consequences of catastrophes, accidents and natural disasters, the implementation of socially necessary work to eliminate violations of life support systems.

Part 4 Art. 99 of the Labor Code of the Russian Federation provides for the possibility of involving employees in overtime work in other cases, in addition to the emergency and unforeseen circumstances listed in the article. The concept of "other cases" is not defined in the law, which allows the employer to apply overtime work in case of any complications in the activities of the organization, individual entrepreneur. As an additional guarantee of limiting overtime work in the absence of emergency or unforeseen circumstances, provided for in Parts 2 and 3 of Art. 99 of the Labor Code of the Russian Federation, the employer must comply with the requirements of Art. 372 of the Labor Code of the Russian Federation - to request the opinion of the elected body of the primary trade union organization. The requirement to take into account the opinion of the elected body of the primary trade union organization may be considered fulfilled if the employer has notified this body in advance of the need to apply overtime, the grounds for which such a need arose, and the volume (duration) of overtime work. When making a final decision, the employer must have the opinion of the trade union body.

A peculiar kind of overtime work, not mentioned in the Labor Code of the Russian Federation, but often used in practice, are shifts. The term “duty” is used in three senses:

performance by the employee of his usual labor duties within the framework of the profession, qualification during shift work;
fulfillment by him of labor duties that are not included in the scope of his usual labor duties;
the employee is in a state of readiness to perform labor duties at the request of the employer.

Duty in its various forms is used, for example, in housing and communal services, energy organizations, education, and government agencies. Significantly different meaning, which is embedded in the concept of "duty" by industry and local regulations, does not allow to unambiguously determine its legal essence. This often allows the employer to deprive the employee of the guarantees established for him by labor legislation.

The Labor Code regulates overtime work, the procedure for its accounting and payment. For hours worked in excess of the norm in the reporting period, remuneration is made at an increased rate. An alternative option is to give the employee time off. It is necessary to focus on daily processing, and in case of summarized accounting - on the result of working out for a month or another accounting period.

How to arrange processing

Working time standards are approved by the Labor Code in Art. 91. Normal working time is 40 hours per week (in some cases 36 hours). Payment for overtime work according to the Labor Code of the Russian Federation in 2018 is made within 120 hours a year. Exceeding this indicator is considered an offense. Over a two-day interval, processing cannot be more than 4 hours. For part-time workers, overtime is calculated daily.

To involve an employee in work after the end of the shift, the company's management must obtain the written consent of the employee. Overtime work is paid on the basis of the order. Consent and order are issued in any form. Employees under the age of 18 may not be recruited to work beyond the normal length of time. The ban also applies to pregnant women.

Overtime pay rules

Legislation stipulates the minimum coefficients used to calculate compensation for excess work. The employer has the right to increase them. For this, new tariffs are approved by an internal act. When calculating the amount of processing, it is necessary to focus on the provisions of Art. 152 of the Labor Code of the Russian Federation - payment for overtime work for the first 2 hours is carried out using a coefficient of 1.5, for each subsequent hour a coefficient of 2 is used.

If overtime falls on a weekend or holiday, different rules apply. These days are excluded from the overtime calculation period. They are remunerated as work on holidays, regardless of the total number of hours worked that day. Overtime pay is always paid excluding public holidays and public holidays.

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Calculation algorithm in practice

An example for the case of summarized accounting of hours worked.

Initial data:

the employee has a standard working time of 40 hours in 5 days;
hourly payment is applied, the tariff rate is 431 rubles;
in the period from April 16 to April 22, 2018, the excess of the working hours was recorded on Friday - instead of 8 hours, the employee spent 12 hours at the workplace.

To calculate, the accountant needs to know how overtime is paid according to the Labor Code, what rules are approved by the local act of the enterprise. If the standard size of the coefficients is applied, then the salary for April will be calculated according to the following scheme:

The final indicators of processing are displayed. To do this, the actual time worked according to the time sheet is compared with the norm for a particular month. According to the production calendar, the April standard is 167 hours. The timesheet shows 171 hours. Payment for overtime work according to the Labor Code of the Russian Federation will be calculated for 4 hours (171 - 167).
The calculation of the cost of the first two hours of processing gave a result of 1293 rubles. (2*431*1.5).
The cost of the remaining excess hours is 1724 rubles. ((4-2)*431*2).
Time worked within the norm will be paid in the amount of 71,977 rubles. (167*431).
The salary and overtime payment in April 2018 according to the statement will be the total amount of 74,994 rubles. (1293+1724+71977).

An example of calculating processing time with holidays present in the calculated interval.

The billing period is June 2018. The employee was involved in work on June 9 (at 10 o'clock), June 12 (at 6 o'clock) and June 13 - at 10 o'clock. The norm for June 9 is 7 hours (pre-holiday working day), June 12 is a holiday, June 13, the standard working time should be at the level of 8 hours. How is overtime paid?

processing for June 9 is equal to 3 hours (10-7);
for June 12, a double tariff will be applied, as for a holiday, this day is excluded from the calculation of excess time;
processing on June 13 was 2 hours (10-8);
5 hours (3+2) are payable as overtime;
at a coefficient of 1.5, earnings for 2 hours will be calculated, at a coefficient of 2 - 3 hours.

There are many reasons why employees are required to stay at the workplace after the end of the working day. This state of affairs may develop in connection with the personal desire of the employee, as well as due to the emergence of production needs (accidents, urgent delivery of documentation, "deadline", etc.) Ensuring lawful overtime work and decent pay for additional hours of work is carried out by the labor legislation of the Russian Federation.

Definition of overtime work according to the Labor Code of the Russian Federation, its legal basis

Based on Art. 99 Labor Code of the Russian Federation , overtime work is the performance by the subject of his official duties in a larger volume than the norm fixed in the labor agreement. The main feature of overtime work is the consent of the employer, otherwise activities outside the working day will not be taken into account and paid.

The main regulatory document for such activities is the labor legislation of the state (Labor Code of the Russian Federation). Articles defining the procedure for overtime work are:

Art. 91 - theoretical base, revealing the terminology and the normalized amount of working time;
Art. 94 - duration of work during one work shift;
Art. 96 - the procedure for the implementation of work at night;
Art. 97 - the procedure for overtime work;
Art. 99 - the concept of overtime activities;
Art. 152 - the procedure for paying employees overtime.

Work beyond measure is divided into labor activity:

at the initiative of the employer without the obligatory consent of the subordinate;
by written agreement between employer and employee.

Overtime work by agreement of both parties to the employment relationship is performed under the following circumstances:

There are objective reasons due to which the employee was unable to fulfill his duties in full on time;
There is a need for urgent repairs to buildings, structures or equipment. If such repairs are not carried out, there may be a risk of suspension of activities and termination of work of many employees;
There is a need to perform a given amount of work instead of another employee who did not appear at the workplace for any reason. This can be done if the specifics of the production process do not imply long downtime or stoppages in principle.

There are a number of cases in which it is important to obtain the permission of the trade union formation in the enterprise. However, if the union makes a negative decision, this will not affect the ability of the employee to work overtime if he agrees.

Overtime work is not considered:

work of a subordinate on the basis of an irregular working day. This provision is fixed by Art. 101 of the Labor Code of the Russian Federation;
the employee is employed part-time - art. 102 of the Labor Code of the Russian Federation.

Also, work beyond measure is not considered to be the performance of those job assignments that the employee did not complete during the shift, although he was given enough working hours based on the work schedule.

When determining payment for overtime work, the employer should analyze the activities of the subordinate and determine, on the basis of the Labor Code of the Russian Federation, whether this or that action of the subject is overtime work.

Differences between overtime work and irregular working hours

An irregular working day implies the absence of overtime pay, even if they took place. In fact, these concepts are identical, the main difference is in the order of payment.

Irregular labor shifts are fixed by the labor agreement with the employee. For a similar pace of work, the subject is entitled to additional vacation days, as well as, with the consent of the employer, increased wages. Such a schedule is determined only for some employees, and is fixed in local regulations.

In addition, irregular labor does not fall under the restrictions of the Labor Code of the Russian Federation. The only caveat relates to the infrequent work of overtime and the performance of duties by an employee for more than one shift only when necessary. In the case of overtime work, any subordinate, if he does not fall into a prohibited group, may be involved in additional work even without his own consent, which can also be considered a legitimate action on the part of the employer.

Also, the Labor Code of the Russian Federation records information according to which overtime work may be limited in terms of the number of hours for certain groups of employees.

The procedure for engaging an employee to work overtime without his consent

It is legally possible to use the work of the subject overtime without his consent. However, the list of situations is limited. So, it is feasible in the following circumstances:

There is a threat of an emergency, accident or catastrophe. The work of an employee is necessary to prevent or eliminate the consequences of natural disasters;
The procedure for the functioning of public engineering networks (sewage, supply of residential premises with water and gas, heating, lighting, etc.) was violated;
In the state (or in a certain region) there was the introduction of martial law;
There is a need for urgent work, for example, in the event of a fire or flood.

Subordinates are obliged to begin to perform such duties on the basis of the order of the employer. In fact, it is enough for the head of the organization to publish the corresponding order in order for the overtime work of employees to become lawful.

The total number of hours actually worked overtime cannot exceed 120 hours per year, and must not exceed 4 hours every two days.

In addition, there are separate groups of employees who cannot be involved in additional work without their consent. These include:

pregnant employees;
Underage subordinates;
Employees who combine training with work;
Underage Athletes.

Overtime work for persons with disabilities and mothers with children under 3 years of age is legal with their written agreement. It is also important to consider that additional work should not harm the health of the subject. Thus, these groups of employees must certify their familiarization with the order on their overtime work with their signatures on the document.

The procedure for registration of overtime work of an employee

Registration of overtime work takes place in the following stages:

The employee agrees to the additional work. If this is due to production needs, the administrative apparatus takes from the subordinate in writing the assurance of his consent to additional work. It is recommended that such a document be made in two copies. In case of refusal, the refusal must also be made in writing. If overtime work is expected without the consent of the subject, he is required to begin the urgent performance of his official duties.
Execution of the employer's order. Such an order is drawn up in a free form, however, it must contain certain details so that later it is considered eligible documents. The required details include: the reason for which overtime work is performed, as well as information about the documents confirming the consent of the employee (date and number). The order must be certified by the personal signature of the employee, which will prove the fact of his familiarization with the document.
The responsible accounting officer (timer), on the basis of an order, enters overtime hours into the time sheet. Based on the data entered, the workers are further charged an additional salary.

How is an employee paid for overtime?

The main document regulating the question of how overtime work is paid is Art. 152 of the Labor Code of the Russian Federation. It reveals the following information:

The first two overtime hours of work are paid one and a half times the standard salary. That is, the base tariff rate per hour is multiplied by a multiplying factor - 1.5;
Subsequent overtime work is paid at a double rate, that is, the multiplying factor will be 2.

In addition to Art. 152 of the Labor Code of the Russian Federation, there are a number of local regulatory documents in accordance with which overtime can be paid. These include: collective agreements, local legal acts, labor agreement with a subordinate.

The provision on payment in local regulatory documents should not contradict the Labor Code of the Russian Federation, and also harm the prosperity of a working citizen.

In case of violations of payment for overtime hours, the employer may be brought to litigation and, subsequently, to administrative liability. In especially serious cases, a non-paying employer may be prohibited from working in a particular field of activity.

Overtime restrictions

Labor legislation limits the number of allowable hours for overtime work in order to meet the interests of the able-bodied population. The main limitations relate to the following aspects:

For two days, overtime work should not exceed more than 4 hours in excess of the norm for one worker;
In a year, a citizen must not work more than 120 hours of overtime.

Evidence of work beyond measure is the report card. The task of the head of the company is to strictly control the number of hours worked in excess of the norm.

The reasons for limiting the duration of overtime work are as follows:

Additional work of the employee leads to increased fatigue;
The rest time decreases, that is, the cognitive abilities of the individual decrease.

Duration limits are fixed by Art. 99 of the Labor Code of the Russian Federation. The legislation in these requirements is based on world statistics, based on which people who work in excess of the above measure additionally have serious diseases of the cardiovascular system, as well as an increased risk of infectious diseases.

If an employee has exceeded the allowable overtime limit, further work must be performed by another entity. Engaging an employee to work overtime more than the established norm threatens to be fined from the management of the organization, as well as, possibly, administrative responsibility.

However, there is one exception to this rule. If an employee has exceeded the overtime limit, but there is an urgent need due to, for example, a natural disaster, then the processing of the employee is not considered illegal.

The nuances of overtime work

The nuances of the relationship between the employer and the subordinate during overtime work include:

Thus, work beyond measure must be strictly accounted for and paid on time. The employer needs to clearly know the legislative framework in order to correctly determine the categories of employees and correctly calculate remuneration for such work in the future.

Everyone knows that recently, against the backdrop of the instability of the financial and political climate in our country, organizations are trying to reduce their costs. Sometimes such a reduction, as employers believe, is possible only with the reduction of workers. However, someone has to do the work. Therefore, the remaining employees work, as they say, tirelessly, and in most cases such processing is not paid or compensated in any other way. But if such an employee, forced to work in two shifts, turns to the GIT or the court, then, of course, they will take his side, because this is nothing more than overtime work. Today we will tell you what is meant by overtime work, what guarantees and compensations are due to employees performing such work, how to apply for involvement in it. In accordance with Art. 99 of the Labor Code of the Russian Federation, overtime is recognized as work performed by an employee at the initiative of the employer outside the working hours established for the employee - daily work (shift), and in the case of summarized accounting of working hours - in excess of the normal number of working hours for the accounting period.

We recall that according to Art. 91 of the Labor Code of the Russian Federation, the normal working time is 40 hours per week. However, for some categories of workers, a reduced working time is established, which is normal for them (Article 92 of the Labor Code of the Russian Federation). These include, in particular:

- underage workers - from 24 to 35 hours a week, depending on age;

- disabled people of group I or II - no more than 35 hours a week;

- employees whose working conditions at their workplaces, according to the results of a special assessment of working conditions, are classified as harmful working conditions of the 3rd or 4th degree or dangerous working conditions - no more than 36 hours a week;

- women working in the regions of the Far North (Article 320 of the Labor Code of the Russian Federation);

- teachers (Article 333 of the Labor Code of the Russian Federation);

- health workers (Article 350 of the Labor Code of the Russian Federation).

Note. If an employee is late at work on their own initiative, such work is not considered overtime.

When engaging employees in overtime work, it is worth remembering that the duration of such work should not exceed four hours for each employee for two consecutive days and 120 hours per year. To do this, the employer is obliged to ensure that the duration of overtime work of each employee is accurately recorded.

When is overtime possible?

The Labor Code prohibits forced labor, and its norms are designed, among other things, to ensure the right of every worker to fair working conditions. Part 2 of Art. 99 of the Labor Code of the Russian Federation, cases are limited when an employer can involve an employee in work in excess of the normal working hours:

- if necessary, perform (finish) the work that has been started, which, due to an unforeseen delay due to the technical conditions of production, could not be performed (completed) within the working hours established for the employee, if failure to perform (non-completion) of this work may lead to damage or destruction of the employer's property (in including the property of third parties held by the employer, if he is responsible for the safety of this property), state or municipal property, or endanger the life and health of people;

- when carrying out temporary work to repair and restore mechanisms or structures in cases where their failure may cause a significant number of employees to stop working;

- to continue work in the absence of a replacement employee, if the work does not allow a break. In this case, the employer is obliged to immediately take measures to replace the shift with another employee.

In such situations, the employer will have to obtain the written consent of the employees. How to do this, we will tell a little later.

However, the employer can involve the employee in overtime work without his consent. This is possible (part 3 of article 99 of the Labor Code of the Russian Federation):

- when performing work necessary to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, industrial accident or natural disaster;

- when carrying out socially necessary work to eliminate unforeseen circumstances that disrupt the normal functioning of centralized hot water supply, cold water supply and (or) sanitation systems, gas supply, heat supply, lighting, transport, communications systems;

- when performing work, the need for which is due to the introduction of a state of emergency or martial law, as well as urgent work in emergency circumstances, that is, in the event of a disaster or threat of disaster (in case of fire, flood, famine, earthquake, epidemic or epizootic) and other cases that put endanger the life or normal living conditions of the entire population or part of it.

Note! In any other cases, the involvement of an employee in overtime work is allowed with the written consent of the employee and taking into account the opinion of the elected body of the primary trade union organization.

Overtime compensation

How the employer must compensate for overtime work is established by Art. 152 of the Labor Code of the Russian Federation. In particular, this rule provides for two options.

1. Increased pay. Overtime work is paid for the first two hours of work at least one and a half times, for subsequent hours - at least twice the amount. Specific amounts of overtime pay may be determined by:

- collective agreement;

- local regulations;

- an employment contract.

Unfortunately, the Labor Code does not define the procedure for calculating compensation: someone calculates the cost of an hour of overtime work based on the salary for the month in which it was performed and the normal number of working hours for a given employee according to the production calendar for that month, and someone - based on the salary for the month in which the work was performed, and the average monthly number of working hours, determined on the basis of the number of working hours according to the production calendar for a particular calendar year and the number of months in a year. As a result, when calculating by different methods, different amounts can be obtained. Therefore, in order to avoid disputes with employees, we recommend fixing the procedure for calculating overtime pay in a local regulation.

Note that most questions arise in the case of payment for overtime work with a summarized accounting of working time. To solve them, we advise you to refer to the Recommendations on the use of flexible working hours at enterprises, institutions and organizations of the sectors of the national economy, approved by the Decree of the USSR State Labor Committee N 162, All-Union Central Council of Trade Unions N 12-55 of 05/30/1985.

According to clause 5.5 of these Recommendations, in the event of overtime work by persons transferred to the flexible working time regime, the hourly accounting of this work is kept in total in relation to the established accounting period (week, month), that is, only hours worked in excess of those provided for this are considered overtime. working hours period. Their payment is made in accordance with the current legislation: in one and a half size - for the first two hours that fall on average on each working day of the accounting period, in double the amount - for the remaining hours of overtime work.

Thus, if an employee, for example, worked 43 hours of overtime in 20 working days of the accounting period, 40 hours (20 days x 2) will be paid at one and a half times, and three hours at double the rate.

The procedure for calculating overtime pay, set out in clause 5.5 of the said Recommendations, was recognized by the RF Armed Forces in Decision No. AKPI12-1068 of 10/15/2012 as correct, although the Ministry of Health and Social Development gave other explanations. Recall that the department in Letter No. 22-2-3363 dated 31.08.2009 recommended that overtime work be paid at the end of the accounting period: the first two hours of work - at least one and a half times, all other hours - at least double the amount. That is, if an employee had 19 hours of processing at the end of the accounting period, then two hours should be paid at one and a half times, and 17 hours at double the rate.

Q: How do I pay for overtime work on a non-working holiday?

According to the general rule defined by Art. 153 of the Labor Code of the Russian Federation, work on a weekend or non-working holiday is paid at least double the amount. However, the Decree of the USSR State Committee for Labor, the Presidium of the All-Union Central Council of Trade Unions of 08.08.1966 N 465 / P-21 approved Explanation N 13 / P-21, by virtue of clause 4 of which, when calculating overtime hours, work on holidays performed in excess of the norm of working time should not be taken into account because it has already been paid double.

2. Additional rest. Instead of increased payment Art. 152 of the Labor Code of the Russian Federation allows an employee to receive additional rest time for overtime work. How long should this rest be? Certainly not less than the time worked overtime. That is, if an employee has worked three hours in excess of the normal working time, then the additional rest provided as compensation should be no less.

Note! Overtime work of employees of FIFA, FIFA subsidiaries, FIFA counterparties, confederations, national football associations, the Russian Football Union, the Russia-2018 Organizing Committee, its subsidiaries, whose labor activity is related to the implementation of events, is compensated by the provision of additional rest time, but not less than time worked overtime, taking into account the plans of the relevant organizations for the implementation of activities, unless otherwise provided by agreement of the parties to the employment contract. At the same time, the requirements of Art. 152 of the Labor Code of the Russian Federation (Article 11 of the Federal Law of 07.06.2013 N 108-FZ “On the preparation and holding in the Russian Federation of the 2018 FIFA World Cup, the 2017 FIFA Confederations Cup and amendments to certain legislative acts of the Russian Federation”).

Overtime procedure

1. We determine who can be involved in overtime work. This is an important point. It is worth noting that according to part 5 of Art. 99 of the Labor Code of the Russian Federation, pregnant women, employees under the age of 18 cannot be involved in overtime work. The exception is underage athletes (part 3 of article 348.8 of the Labor Code of the Russian Federation), as well as creative workers of the media, cinematography organizations, television and video crews, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or ) performance (exhibition) of works (Article 268 of the Labor Code of the Russian Federation), the List of professions and positions of which is approved by Decree of the Government of the Russian Federation of April 28, 2007 N 252.

Involvement in overtime work of disabled people, women with children under the age of three years, is allowed only with their written consent and provided that this is not prohibited to them for health reasons in accordance with a medical report. At the same time, disabled people, women with children under the age of three, must be familiarized with their right to refuse overtime work under the signature. Under the same conditions, the following may be involved in overtime work (Article 259 of the Labor Code of the Russian Federation):

- mothers and fathers raising children under the age of five without a spouse;

— workers with disabled children;

- workers caring for sick family members.

2. Obtain employee consent. Some employers include in the employment contract a condition that, if necessary, according to the order, the employee can be involved both in overtime work and in work on weekends and at night. They believe that since the employee has signed an employment contract with such a condition, he has already agreed to perform overtime work and his written consent is not required. However, this is not the case: it is impossible to fix in the employment contract the consent to perform overtime work, the written consent of the employee must be obtained every time it becomes necessary to involve him in such work. This position is supported by court decisions. For example, the Chelyabinsk Regional Court, in its Ruling dated April 22, 2014 in case No. 11-4403/2014, indicated that the inclusion in the employment contract of conditions providing for the obligation of the employee to perform work outside the working hours established for the employee, as well as on weekends and non-working holidays is contrary to labor law.

So, in order to receive an employee's response about his consent or disagreement to perform overtime work, he needs to send a notification indicating the reasons that made it necessary to involve the employee in such work. Here is another nuance: when notifying disabled people, women with children under the age of three, as well as mothers, fathers raising children under the age of five without a spouse (wife), employees with disabled children or caring for sick members families, fathers raising children without a mother, and guardians (custodians) of minors in the document must inform them of the right to refuse to perform overtime work.

So, if the employee does not agree to work overtime, he will have to offer to work overtime to another employee, while disciplinary measures cannot be applied to the one who refuses, since they will be declared illegal (see, for example, the Appeal ruling of the Chelyabinsk Regional Court dated April 22, 2014 in the case No. 11-4380/2014). The exception is the cases referred to in Art. 99 of the Labor Code of the Russian Federation, when it is not necessary to obtain the consent of the employee.

3. We take into account the opinion of the elected body of the primary trade union organization. If the company has a trade union and cases when you need to work overtime are not specified in Art. 99 of the Labor Code of the Russian Federation, in addition to the consent of the employee for such work, the employer must request the opinion of the elected body of the primary trade union organization.

The procedure for taking into account the opinion of the elected trade union body when involving an employee in overtime work is regulated by Art. 372 of the Labor Code of the Russian Federation. Let's describe it briefly. Before issuing an order to involve an employee in overtime work, the employer must send a draft of such an order and the rationale for it to the elected body of the primary trade union organization, which, no later than five working days from the date of receipt of the draft order, must send the employer a reasoned opinion on it in writing.

If the elected body of the primary trade union organization does not agree with the draft order on overtime work or proposes to improve it, the employer may agree with it or will be obliged to conduct additional consultations within three days after receiving a reasoned opinion in order to reach a mutually acceptable solution. If agreement is not reached, the disagreements that have arisen are drawn up in a protocol, after which the employer has the right to issue an order that can be appealed to the relevant GIT or to the court.

4. We issue an order. If the employee agrees to work overtime and he has no medical contraindications, an appropriate order is issued. There is no unified form of such an order, therefore it is drawn up in an arbitrary form.

Remember that if an employee agreed to work overtime and got acquainted with the relevant order, but did not start work without a good reason, then he can be subject to disciplinary action, taking into account the requirements for this procedure (Articles 192, 193 of the Labor Code of the Russian Federation) .

5. We issue an order to provide compensation for overtime work. This step is appropriate only if the type of compensation was not determined before the issuance of the order and the employee chose increased pay or additional rest only after overtime work. In this case, it is necessary to issue an additional order for compensation in accordance with Art. 152 of the Labor Code of the Russian Federation.

Finally

- ask for the written consent of the workers and the opinion of the elected body of the primary trade union organization;

- check whether, according to the medical report, the employees involved are not contraindicated in working overtime;

Compensate for work in excess of normal working hours.

Subject to the requirements of Art. Art. 99 and 152 of the Labor Code of the Russian Federation, any court and GIT will be on your side.

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