Establish irregular working hours. The bill on irregular working hours was submitted to the State Duma Fz irregular working hours

"HR officer. Labor law for a personnel officer", 2011, N 2

In practice, due to the ambiguity of the legal wording, irregular working hours are used as a mechanism to hide the overtime overtime work and deprives workers of fair working conditions. The author discusses how to correct the situation.

Legal assessment and general characteristics of concepts

The concept of an irregular working day was first formulated in labor legislation as a rule of law with the adoption Labor Code RF in 2002 This is certainly a positive fact. However, the rule of law set out in Art. 101 of the Labor Code of the Russian Federation raises many questions.

As follows from Art. 101 of the Labor Code of the Russian Federation, an irregular working day is a special mode of work, according to which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the normal working hours established for the employee.

The ambiguity of the legal definition is that the legislator has not outlined the evaluation criterion according to which the positions and professions of employees can be included in the list of persons entitled to irregular working hours. There is no answer to the question of what caused the need to use an irregular working day. There is no explanation of what "episodic" means in relation to irregular working hours. Is a written order of the employer required for an irregular working day (order) or is an oral one sufficient. And such a wording in the article of the law as "may be involved" even causes concern. The fear is caused by the fact that the word "attract" in Russian means "to force". It is no coincidence that people in places of deprivation of liberty and at enterprises talk about attraction to work. occupational therapy for mentally ill people.

The law gave a definition of irregular working hours, guided by the concept of overtime work. Please note that Art. Art. 101 and 99 of the Labor Code of the Russian Federation, the wording of legal definitions contains the same expression: "... by order of the employer outside the normal working hours established for the employee." According to Art. 99 of the Labor Code of the Russian Federation, this expression is the legal definition of overtime work. Overtime - i.e. outside the normal working hours for the 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, while an irregular working day is a regime, a labor procedure. It is located elsewhere, in ch. 16 of the Labor Code of the Russian Federation. We are talking about different legal concepts.

Working time establishes the measure of labor in hours and thus ensures the employee the opportunity to exercise his right to rest. And modes represent a way for an employee to perform his labor function. Working hours can be compared to technical means, allowing you to implement different options for the working day and working week within the same type of working time. With the help of labor modes, it is possible to establish the features of breaks for rest and meals. Working time and work regimes have different goals, they solve their specific tasks in the process of organizing the work of workers. Mixing and replacing them with each other is unacceptable.

Despite this, overtime work and irregular working hours are replaced both in the law and in the practice of labor relations. First of all, this is evident from the wording of their legal definitions given in the law. In addition, until recently, the interchangeability of overtime work with irregular working hours was freely allowed in Art. 119 of the Labor Code of the Russian Federation. This happened by replacing additional leave, which must compensate for irregular work, with increased pay applied to compensate for overtime work. As a result of the practice of applying this article of the law, the heads of enterprises, lawyers and employees of the personnel department formed the opinion that Art. 99 of the Labor Code of the Russian Federation there is a legal qualification for the processing of hours in excess of the statutory working hours, and Art. 101 of the Labor Code of the Russian Federation - illegal qualification of the same process. Legal qualifications are applied to the bulk of workers, i.e. They have overtime work. And illegal qualifications are for certain categories of workers. They still have the same processing of working time called "irregular working day." As a result, there was a rule: the more workers are included in the list of persons with irregular working hours, the less difficulties, since there is no need to register overtime every time.

There has been a first success in distinguishing irregular working hours from overtime work. Success can be considered the fact that the Federal Law of June 30, 2006 N 90-FZ "On Amendments and Additions to the Labor Code Russian Federation..." the possibility of paying for an irregular working day has been excluded. Before the entry into force of the said Law, the Labor Code of the Russian Federation mistakenly offered to pay an irregular working day according to the norms provided for overtime work.

Thus, the idea of delimiting irregular working hours from overtime has found support in the Federal Law. On this basis, there was a further need to study the irregular working day as a mechanism that solves its specific tasks in the process of organizing the work of workers. Moreover, the acuteness of the issue remained.

The current version of Art. 101 of the Labor Code of the Russian Federation with the title "Irregular working day" deprives individual workers of the right to a good rest. This happens every time when, at the "order" of the employer, specialists are "enlisted" to work in irregular working hours. In the legal norm of the law governing irregular working hours, there are no restrictions on the duration of work outside the normal working hours. But by the beginning of the next working day, these employees are required to appear without delay, regardless of the amount of time worked the day before. According to the rules of the internal work schedule, without any exceptions. Under such circumstances, it is not possible to use daily rest in the manner and amount established by law.

For comparison: overtime work under Art. 99 of the Labor Code of the Russian Federation, no more than 4 hours are allowed for two consecutive days and 120 hours a year. In addition, in the case of overtime work, a person may exercise the right to rest between working days in addition to the number of hours that he worked overtime.

The existing arguments that these workers knowingly signed an employment contract for work on irregular working hours are untenable. The right of every employee to a daily rest of a fixed duration is one of the basic principles of the legal regulation of labor relations, fixed in Art. 37 of the Constitution of the Russian Federation and art. 2 of the Labor Code of the Russian Federation. The terms of an employment contract that are contrary to the basic principles of regulating labor relations cannot be called legal, and they cannot operate, even if signed by two parties.

Both in the case of overtime work and in the case of the use of an irregular working day, we are talking about work in conditions that deviate from normal. As a deviation from the norm, overtime work is performed according to general rule with the written consent of the employee. And for the current "attraction" to the irregular working day, the law does not require the consent of the employee at all. This means that the specialist is obliged to comply with the employer's order, even if he does not agree to work in conditions that deviate from normal. The employee has no right to refuse. If he does not comply with the order of the employer, he may be subject to disciplinary punishment. This position of the worker is assessed as forced labor, i.e. performance of work under the threat of any punishment. Based on principles and norms international law, in accordance with the Constitution of the Russian Federation, in accordance with Art. 4 of the Labor Code of the Russian Federation, forced labor is prohibited.

The situation is aggravated by the fact that the legal norm contained in Art. 101 of the Labor Code of the Russian Federation, oriented arbitrage practice.

Example. So, the chief technologist of the brewery Sergeeva I. was reprimanded with deprivation of bonus for being late for work by 30 minutes. The employee applied to the court for the recovery of the bonus in her favor. She explained that, by order of the director, she was late after work, because she had an irregular working day. Completed the production task of the director by three in the morning. Taking into account the time spent on the road, the need to care for children of school age, in the absence of proper rest, she was not physically able to come to work by the beginning of the working day. Despite this, the court dismissed the worker's claims. The court did not find violations of the law when reprimanding the employee with deprivation of bonus for being late for work. The court decision stated that the order set an irregular working day for the chief technologist Sergeeva I., which does not relieve her of the obligation to comply with the internal labor regulations. The plaintiff, like all employees, is obliged to come to work by the beginning of the working day without delay.

* * *

The chief power engineer Morozov K., by order of the director, was detained at work for two days in order to organize repairs power equipment after a work accident. Then upon completion emergency work, stayed a few more days at the production site to organize and launch new technology accounting electrical energy. At the end of the month, he asked to pay overtime and provide annual leave 3 days for irregular working hours. Since the request was ignored, he went to court. By a court decision, payment for overtime work was denied on the grounds that the chief power engineer has an irregular working day, so he cannot work overtime. The current version of Art. 101 of the Labor Code of the Russian Federation does not provide grounds for cancellation this decision court.

Labor regulation and irregular working hours

An objective description of the irregular working day, its place in the system of legal mechanisms should be sought in the field of labor rationing, and not within the framework of working hours, as is done in the current Art. 101 of the Labor Code of the Russian Federation. Working time is the most important indicator standardized labor, i.e. measured, calculated and billed labor, in which it is absurd to talk about an irregular working day. Normalized labor is characterized by the presence of a norm established for the employee labor costs(effort) known before the start of work. The norms are expressed by the amount of work in units of production or production operations to be performed per hour, shift, month, i.e. within the set working hours. It is not difficult to establish a labor standard if the work is regular in nature, i.e. is performed every day or at least once a quarter for a long time and is stable in composition, i.e. requires the same same type of labor effort covered qualification characteristic agreed in the employment contract.

The result of the rationing and tariffing of labor is the availability of an official salary for an employee or tariff rate that cover the content job duties worker. A detailed study of the Tariff qualification handbook of jobs and professions of workers, as well as the Qualification Directory for the positions of managers, specialists and employees, allows us to say that in the Russian Federation mass performing work is standardized and rated.

Difficulties begin with a misunderstanding that some categories of workers, in the scope of their official powers, along with the main list of official functions, have such duties, the execution of which ensures the organization and introduction of new production and management technologies. They are obliged to organize the work of performers when introducing new technologies for the production of goods and services, when introducing new methods of work, new rules for accounting for financial and economic results, quality standards, when introducing the results of experimental design and research work. Studying the Qualification Handbook, you can find that these responsibilities have heads of enterprises and their deputies, managers structural divisions(departments, services) and some other leading specialists (leading technologist, leading power engineer, deputy chief engineer, etc.).

The work of these workers is divided into two parts. One part is regular work, carried out day after day and requiring the same labor efforts of the same type. Such work is counted and covered official salary. The other part is the work on the organization and implementation of production and management technologies. This part cannot be measured and calculated because it is accompanied by the cost of additional, increased intellectual and physical efforts that go beyond the labor norm established for the worker.

The existing rationing system in the Russian Federation, based on the establishment of norms in accordance with previously developed standards and the measurement of working hours, has not developed a method for calculating labor, which is accompanied by the cost of additional, increased efforts.

In accordance with Decree of the Government of the Russian Federation of October 31, 2002 N 787 "On the procedure for approving the Unified Tariff and Qualification Directory of Works and Professions of Workers and the Unified Qualification Guide for the Positions of Managers, Specialists and Employees", each enterprise must have a list of positions, professions and works rated for on the basis of the said reference books.

In accordance with the Decree of the Ministry of Labor of Russia dated 09.02.2004 N 9, which approved the Procedure for the Application of these Handbooks, the enterprise must also have a List of Works normalized by the employer on its own. 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, using those already available on federal level labor standards or using well-known methods of rationing, in particular with the help of photographs of labor and production process, momentary observations and timing, taking into account the results of attestation of workplaces.

The presence of these lists makes it possible to identify work that requires additional, increased efforts of the employee, which cannot be measured and calculated using well-known labor standards and rationing methods. Such work takes place at every enterprise, since the system of human interaction with the tools of production implies the presence of both mass performing labor and work on organizing this very performing labor, as well as work on the introduction of new production and management technologies. This work falls into separate list and constitutes irregular labor.

For the performance of irregular labor, only the procedure (mode) or method of work is provided. This mode has a name - an irregular working day.

Thus, an irregular working day is an order or method of performing labor duties in the course of organizing and introducing production and management technologies, in which it is not possible to measure the additional, increased efforts of an employee using known labor standards.

Irregular labor has the most important feature. It is characterized by the absence of established standards (norms of time, norms of production). It cannot be taken into account either in hours, or in units of production, or in production operations. And since it is not possible to accurately account for and rate, it means that it is impossible to reasonably pay with a fixed part wages.

The labor rate cannot be established for objective reasons:

there is work that is irregular in nature or unstable in composition;
it is impossible to establish the scope and content of the work before the start of its implementation;
it is impossible to set a calendar date for the completion of work before the start of its execution;
the completeness of the coverage of the work performed by the existing qualifications and composition is unknown official duties worker.

The work of specialists when using an irregular working day also differs in features:

specialists independently organize their work, determining the volume, content and deadlines for completing the task;
specialists distribute working time at your own discretion, i.e. with the aim of conscientious performance their official duties organization and implementation of production or technological process voluntarily go to work before the start of the working day or stay late after work;
the working day of specialists can be divided into parts of indefinite duration depending on the work, irregular in nature and unstable in composition.

The concept of work, irregular in nature and unstable in composition, needs to be deciphered. Based on the definition of working conditions, labor standards and labor standards given in the basic system of microelement standards (BSM-1), we can say the following. Irregular in nature is work that, depending on the technology for the production of goods and services, cannot be performed regularly from day to day or at least once a quarter for a long time. Unstable in composition is work that does not allow the use of the same type of techniques and operations within the limits of the employee's job duties, requires additional, increased labor efforts.

In the current Art. 101 of the Labor Code of the Russian Federation does not say anything about irregular work, does not indicate an assessment criterion according to which the positions of employees can be included in the list of persons entitled to use irregular working hours. In the absence of a legal criterion in practice, a secretary, an inspector of the personnel department, a driver, a technician and other workers who have nothing to do with irregular work, and therefore irregular working hours, are mistakenly attributed to a separate category of workers with irregular working hours.

In contrast to the irregular working day, overtime work, i.e. working hours outside the normal duration, payable in accordance with Art. 152 of the Labor Code of the Russian Federation. The first two hours of work are paid at least one and a half times, and the following hours - at least twice the salary (tariff rate). Since wages are legally defined for overtime work, it means that a method has been found for measuring and calculating the labor efforts of an employee in the process of its implementation. Accounting for labor efforts outside the normal working hours is made using the time standard. Accounting is carried out in hours. As stated in Art. 99 of the Labor Code of the Russian Federation, the employer is obliged to ensure accurate accounting of the work performed in hours. Since it was possible to measure the work of an employee outside the established normal working hours using the time standard and pay in accordance with the established labor standard, it is scientific and unfair to place an irregular working day in the same legal field.

While in the text of Art. 101 of the Labor Code of the Russian Federation are not indicated characteristics and specific tasks of the irregular working day as a mode of work. Comments on this legal norm in the scientific literature, as before, they give explanations about the irregular working day as about work outside the normal working hours established for the employee.

Reason for using irregular working hours

The reasons for the use of these mechanisms also allow the possibility of 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 irregular working day. It is only said that "if necessary, workers can be occasionally called to work ...". At the same time, it is not clear what the need is expressed and when it appears. The legislator also did not give an explanation of what "episodic" means in relation to irregular working hours. In Russian, the concept of episodic character is characterized by chance or incident.

In relation to law, chance is expressed in the spontaneity of the forces of nature (earthquakes, floods, etc.) and represents the natural nature of an emergency. The incident is related to technical means (industrial accident, collapses building structures etc.) and represents the technogenic nature of the emergency. Extraordinary circumstances of a natural and man-made nature are grounds for overtime work. They are directly named as grounds in Art. 99 of the Labor Code of the Russian Federation. For example, overtime work is done:

to prevent and eliminate the consequences of an industrial accident or natural disaster;
to eliminate circumstances that disrupt the normal functioning of water supply, heating, lighting, sewerage, transport, communications;
to continue work in order to exclude the possibility of emergency circumstances (damage to property, endangering the life and health of people);
for the repair of mechanisms and structures, when their failure can cause a cessation of work for a significant number of employees.

As you can see, all of these cases are characterized by the randomness of the elemental forces of nature or an accident as a result of industrial accidents. In a word, episodic.

In its definition of irregular working hours, Art. 101 of the Labor Code of the Russian Federation also speaks of episodicity. It turns out that for the use of an irregular working day and for overtime work, the law provides for the same grounds! The result is obvious. The same reasons make it easy to replace the processing of hours during overtime work with an irregular working day.

In fact, the basis for irregular working hours is fundamentally different from the grounds for overtime work. The basis for the use of an irregular working day is the need to introduce new production and management technologies at the enterprise. This need arises from time to time. It has nothing to do with episodes. Periodicity is explained by a natural, progressive process economic development, improvement of productive forces and production relations. The introduction of new technologies for the production of goods and services, the results of experimental design, research work, the introduction of new methods of work, product quality standards occur periodically. This happens regularly, after a certain period of time, with each new stage in the development of the productive forces at the enterprise. Consequently, the need for an irregular working day appears regularly, after a certain period of time, i.e. periodically. The need for an irregular day is not associated with an accident inherent in natural emergencies, and is not associated with an incident, which is an emergency of a man-made nature.

Example. An example is the technology for the production of glazed cheese curds. For the last 5 years, periodically, every 5 - 7 months, it has been improved by introducing a new production technology. There is no doubt that from time to time, certain categories of employees (specialists) of an enterprise need to use an irregular working day as a way of doing work that requires additional, increased efforts when introducing a new production technology. The use of an irregular working day is subject to compensation with additional leave.

With the introduction of a new production technology, 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 using well-known labor standards and tariffed, which means that it is economically justified to pay.

The practice of irregular working hours

When used in labor relations irregular working hours, it is necessary to take into account the fact that the responsibilities for the organization and implementation of production and management technologies are provided for in job description certain categories of workers.

AT collective agreement the enterprise should name the evaluation criterion, according to which the list of works and positions of specialists with irregular working hours is formed. In accordance with it, the number of days of additional paid leave for each specialist should be indicated. The job description of a specialist should highlight his responsibilities for the organization or implementation of production and management technologies, since they require additional, increased intellectual and physical efforts.

It is well known that the conscientious performance of official duties does not require a special order from the employer, either oral or written. The employee is obliged to fulfill them in full by virtue of the law. The group of labor duties of an employee is no exception, which is associated with the organization and implementation of production and management technologies, requiring additional, increased labor efforts. The need for conscientious performance of their labor duties is indicated by Art. 21 of the Labor Code of the Russian Federation.

Accounting in irregular working hours begins with the relevant order, which fixes the right to use the specified labor procedure for certain categories of workers.

Then every time on the basis memo this specialist should be recorded in the Journal of Accounting for Non-Rated Work, indicating the production task, outlining the new method and method of labor, production and management technology used to solve the problem.

To control irregular labor, a report from the same specialist on the technological or organizational productivity of the work done is necessary.

The initiative in the use of irregular working hours by individual employees may also belong to the employer. In this case, the order of the head of the enterprise should first of all set out the reason for the need to use an irregular working day. As well as a production task, the content of which is the need to introduce a new method and reception of labor, a 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 especially noted that in the time sheet of a specialist engaged in irregular work, a note on the time spent on this work is not made, even if it was carried out outside the normal working hours. After all, if the working hours are outside the normal working hours Mark in the time sheet, this will mean that the employer was able to measure and calculate, using the time standard, the work spent by the specialist in hours. At the same moment, the work of the specified specialist receives legal status normalized labor and will have nothing to do with irregular working hours. This will be overtime work payable in accordance with Art. 152 of the Labor Code of the Russian Federation.

Bibliography

Dictionary of the Russian language / Ed. S.I. Ozhegov. M.: Russian language, 1989.
Scientific research of the Russian Humanitarian Science Foundation N 09-02-00654a "Development of a methodology for calculating time standards using microelements and the theory of planning experiments" // Bulletin of the Research Institute of Labor and social insurance. 2010. N 1.
Shibaev A.A. The main provisions of the methodology for developing time standards using the domestic basic system microelement time standards (BSM-1) // Bulletin of the Research Institute of Labor and Social Insurance. 2010. N 1.

V.Vanyukhin

Moscow State

open university,

supervisor

legal center "Science",

retired federal judge

Irregular working day

DZUGKOEVA Zarina Vadimovna,

postgraduate student of the department labor law and social security law of the Moscow State Law Academy. O.E. Kutafin (MSUA)

Brief annotation: the article is devoted to the study of one of the types of working hours - irregular working hours. The content of the concept of "irregular working day" is analyzed, contradictions in the legal regulation of this regime are identified, proposals are made to improve the current labor legislation in this area: the definition of limits on the length of time and compensation, as well as the circle of persons for whom an irregular working day should not be established.

This article is dedicated to one of the forms of working conditions - unlimited workday. The article analyzes the content of such concepts as "unlimited workday", reveals conflicts in legal regulations of such order, and makes suggestions on improvement actual labor law in the mentioned sphere: definition and compensations, and also circle of persons to whom unlimited workday shouldn't" t to provide.

Key words: working hours; irregular working hours; working hours; episodic; need.

working time regimen; unlimited workday; working time duration; episodically; necessity.

Irregular working hours - a special mode of work, in accordance with which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the working hours established for them. The list of positions of workers with irregular working hours is established by a collective agreement, agreements or local regulations 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-standardized working day” used by the legislator is not correct enough, since “irregularity” as such is not related to the working day as a whole (it is normalized, i.e. of the established duration), but to work outside the established working hours , which, according to the law, should also be normalized and taken into account. In addition, Art. 101 of the Labor Code of the Russian Federation refers only to the day, and Ch. 16 of the Labor Code of the Russian Federation regulates the “Working hours” as a whole.

We must agree with L.Ya. Ostrovsky,

that an irregular working day is not some special standard of working time that differs from a normal or shortened working day, and from this point of view it cannot be put on a par with them.2

Historically, the main criterion for an irregular working day was called an increase in the volume of work. So, for example, N.G. Alexandrov defined "an irregular working day as a day that is not limited in time, but limited by the amount of work"3. E.A. Panova considers the irregular working day as unlimited by a fixed number of hours, and determined by the amount of work.4 The authors of the Encyclopedic Dictionary "Labor Law" define the irregular working day as "a type of working day for workers whose work, due to the nature of their activities, cannot be limited by the framework of a normal working day "5.

In our opinion, such definitions do not correspond to the legal nature of the working day. taking

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 according to the Soviet labor law

nominations. Minsk: Publishing House of the Academy of Sciences of the BSSR, 1963. 157 p.

3 Aleksandrov N.G. Soviet labor law. Gosjurizdat, 1952. S. 203-204.

4 Panova E. A. Legal regulation labor on state farms. M., Gosjurizdat, 1960. S. 56.

5 Labor Law: Encyclopedic Dictionary. M.: BSE, 1959. S. 246.

for the criterion for defining the concept of an irregular working day, the amount of work or the scope of duties, the authors underestimate the importance of working time as an essential element of the measure of labor.

In Art. 101 of the 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 titles of the section and chapter of the Code - "Working hours" and "Working hours".

1) an irregular working day is a special mode of work;

2) it is established only for certain employees, the list of which must initially be fixed by a collective agreement or other normative act;

3) in order to attract employees to work on irregular working hours, an order from the employer is required;

4) irregular working hours are used only when necessary;

5) to work on the conditions of an irregular working day, employees can be involved episodically (i.e. from case to case, and not systematically);

6) an irregular working day means going beyond the limits of normal working hours;

7) in the conditions of an irregular working day, the employee must perform extra work, but their labor functions.

Thus, in relation to an irregular working day, the qualifying sign of a special mode of operation is its difference in any of the above parameters from the generally established 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 both part-time and part-time work week, and hourly wages are also features of the working hours, however

these provisions in this case do not act as qualifying ones.

In the literature, an opinion was expressed about the need to establish an extended working day for persons whose overtime is of a permanent nature.6 In our opinion, this point of view is not consistent with the position of the legislator. An irregular working day only allows for possible overtime, and does not imply overtime that is permanent. Therefore, the situation when certain categories of workers who have irregular working hours (for example, top managers) systematically work after hours is abnormal. To eliminate this situation, it is advisable to change the mode of working time, to establish a summarized account of working time.

The definition and content of the concept of working hours causes lively debate among labor law scientists.7 Thus, the absence of an established length of an irregular working day gives grounds to consider it as an estimated concept in labor law. First, according to the subjective composition of the establishment - irregular working hours are associated with the list. Secondly, the duration of work of persons with irregular working hours cannot proceed indefinitely, indefinitely in time. The real significance of an irregular working day lies not in the absence of state (legislative) regulation, but in the fact that, under certain circumstances, as an exception and under conditions of special material compensation (additional leave), work in excess of the norms is allowed.

We believe that Art. 101 of the Labor Code of the Russian Federation does not contradict Art. 37 of the Constitution of the Russian Federation and art. 2, 4, 21, 22,

6 Venediktov V.S. Legal regulation of the rational use of working time: Abstract of the thesis. diss. ... for the competition. cand. legal Sciences. Kharkov, 1984. 15 e.; Voevodenko N.K. Improving labor legislation on workers with irregular working hours // Problems of State and Law. Proceedings scientific staff and graduate students. M., 1974, Issue. 9. S. 199-208 and others.

7 Protsevsky A.I. Working hours and working day according to Soviet labor law. M.: Gosjurizdat, 1963. 182 e.; Muksinova L.A. Working day and working week according to Soviet labor law: Abstract of the thesis. diss. ... for the competition. cand. legal Sciences. M., 1962. 16 e.; Muksinova L.A. Problems of regulation of working time in the USSR. M.: Yurid. literature, 1969. 216 e.; Silaev V. Irregular working day // Socialist legality. M., 1970. No. 5. S. 68-69 and others.

91, 99 of the Labor Code of the Russian Federation. 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, refers to work that an employee is forced to perform under the threat of any punishment (violent influence), according to the Labor Code of the Russian Federation, he has the right to refuse to perform it, including in connection with the payment of wages to him not in full size.

An employee working on an irregular working day is currently involved in work outside the working hours established for him (in fact, overtime work) in a simplified manner without clear regulation of such concepts as “if necessary” and “occasionally” (for comparison : the procedure for engaging in overtime work is established by Article 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 refusing to work outside the working hours established for him, he may be subject to disciplinary liability in accordance with Ch. 30 of the Labor Code of the Russian Federation. At the same time, in violation of Art. 91 of the Labor Code of the Russian Federation, the employer does not take into account the time actually worked by the employee in excess of its established duration, which entails a violation of the overtime limit established by Art. 99 of the Labor Code of the Russian Federation. The consequence of the increase in the actual length of working time is a decrease in rest time, during which the employee is free from the performance of labor duties and which he can use at his own discretion, which does not comply, in particular, with the norms of Art. 37 of the Constitution of the Russian Federation, Art. 2, 21 and 22 of the Labor Code of the Russian Federation.

New edition Art. 101 Labor Code of the Russian Federation

Irregular working hours- a special mode of work, according to which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the working hours established for them. The list of positions of employees with irregular working hours is established by a collective agreement, agreements or local regulations adopted taking into account the opinion of the representative body of employees.

An employee working an irregular working day can be established only if the agreement of the parties to the employment contract establishes a part-time working week, but with a full working day (shift).

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

An irregular working day is a special mode of work, according to which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the normal working hours. The list of positions of employees with irregular working hours is established by a collective agreement, agreement or internal labor regulations of the organization.

The peculiarity of the considered mode of work of time is that the employee is subject to the general mode of operation of the organization, but may be delayed at work at the request of the employer to perform his work duties in excess of the usual work shift or be called to work before the start of the working day.

It should be noted that employees can be involved in work with irregular working hours only to perform their labor functions, which they must perform under an employment contract. Therefore, it is not possible to oblige the employee to perform any other types of work, including outside the normal working hours.

The Labor Code of the Russian Federation establishes that an irregular working day is established only for certain employees included in a special list (it is attached to the collective agreement or the rules internal regulations operating in the organization). This list can also be established in industry, regional and other agreements.

Irregular working hours may be applied to administrative, managerial, technical and economic personnel; persons whose work cannot be accounted for in time; persons who distribute time at their own discretion; persons whose working time, by the nature of the work, is divided into parts of indefinite duration.

It should be noted that, applying the rules of Article 101 of the Labor Code of the Russian Federation, the employer must not obtain the consent of either the employee himself or the representative body of employees to attract (on days of production necessity) employees to work in excess of the established working hours. This right of the employer is already provided for in the terms of the employment contract. The employee is not entitled to refuse to perform such work. Otherwise, there is a gross violation labor discipline. Note that this article contains a definition of irregular working hours, which states that in accordance with this mode of work, employees can be involved in the performance of their labor functions outside the working hours established for this employee.

The establishment of an irregular working day does not mean that these workers are not subject to the basic norms of labor legislation on the norms of working hours and rest time. Therefore, involvement in work outside the length of working time established for them cannot be systematic.

Since irregular working hours require certain overwork in excess of normal working hours, the Code, as compensation, provides that employees with irregular working hours are granted additional annual paid leave, the duration of which is determined by the collective agreement or internal labor regulations. In the event that such leave (at least three calendar days) is not provided, processing in excess of the normal working hours is compensated with the written consent of the employee as overtime work (Article 119 of the Labor Code of the Russian Federation).

Another commentary on Art. 101 of the Labor Code of the Russian Federation

1. The peculiarity of the irregular working day regime is that the employee can, by order of the employer, perform his labor duties outside the working hours established for him in accordance with the Labor Code, other federal laws and other regulatory legal acts of the Russian Federation, a collective agreement, agreements, local regulations, labor contract. In Art. 101 of the Labor Code of the Russian Federation emphasizes that such processing is allowed only if necessary and should not be systematic, but episodic.

2. The list of positions of employees with irregular working hours usually includes employees.

The irregular working hours are often used by employers to regulate the so-called "overtime", but at the same time it causes a lot of discussion.

Employers, as a rule, are sure that irregular working hours are not limited in time. Of course, this is a very common mistake associated with a misunderstanding of the norms of work and rest established by law and, at the same time, an unreasonable desire to save on payments from the payroll fund of the organization. That is, the establishment of an irregular working day is a kind of optimization of personnel costs. Of course, this is a convenient position, which is approved by financial controllers, but does not always comply with labor laws.

Meanwhile, last year an attempt was made to limit the number of "overtime" hours to 120 hours per year, but this moment the relevant law is still pending. Moreover, the State Duma Committee on the Federal Structure and Issues local government recommended that the lower house of parliament reject the bill.

Let's try to figure out how fair the interpretation of the norms of the law on irregular working hours is in favor of the employer in relation to commercial organizations in which most often there is a temptation to abuse the right on the part of the employer.

HOW LONG DOES AN IRREGULAR WORKING DAY LAST?

As we know, the law defines the norms of work and rest, on the basis of which the work schedule is established for employees. Working conditions with irregular working hours are still an assessment category of the employer. And he often understands the irregular day as having a beginning but no end. Of course, such an approach to interpreting the law is beneficial to the employer, but, as a rule, disadvantageous to the employee. 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 (Article 91 of the Labor Code of the Russian Federation), that is, with a five-day working week, there are 8 hours of working time per day. At the same time, there are cases when this norm can be exceeded without violating the norms of the law. Such cases, as we know, include overtime work and irregular working hours.

For overtime work in the law there is a clear limit - no more than 120 hours per year. Moreover, it is forbidden to involve an employee in overtime work lasting more than 4 hours for two days in a row. This is due to the fact that during processing, the balance between work and leisure is disturbed, which ultimately leads to inefficient work and unsatisfactory performance.

Unlike overtime work, there are no such restrictions with regard to irregular working hours, that is, neither the restrictions established by law for engaging in overtime work, nor the guarantees and compensations associated with such work, work of workers with irregular working hours does not apply.

Let's try to figure out why, nevertheless, the legislator allocates an irregular working day to a separate category of excess work, to a kind of special mode of working time. According to Art. 97 of the Labor Code of the Russian Federation, work in irregular working hours is work outside the established working hours. That is, we are talking about above-standard, additional work that goes beyond the working day. The legislator in Art. 101 of the Labor Code of the Russian Federation made a reservation about the episodic involvement in such work, but this did not solve the problem of unfair use of labor. There are currently no criteria or signs of episodicity in regulatory legal acts. And the compensation that the employee receives in return for his excess labor costs is sometimes clearly lower than these labor costs.

We especially note that the introduction of an irregular working day for employees does not mean that they are not subject to the rules that determine the start and end times of work, the procedure for recording working time, etc. 2 These workers are generally released from work on weekly rest days and holidays. Therefore, to involve employees who have an irregular working day to work on their weekends and non-working holidays possible only with the application of the provisions of Art. 113 and 153 of the Labor Code of the Russian Federation.

WHO CAN SET AN IRREGULAR WORKING DAY?

The list of positions of workers with irregular working hours is not defined by regulatory legal acts, therefore, as a rule, it is established in the local regulatory act of the employer, for example, internal labor regulations or regulations on recording working hours.

An exception is the establishment of an irregular working day for drivers. So, according to Part 2 of Art. 329 of the Labor Code of the Russian Federation, features of the regime of working hours and rest periods, working conditions for certain categories of workers whose work is directly related to movement Vehicle are established by the Ministry of Transport of Russia.

In accordance with the Regulations on the peculiarities of the regime of working hours and rest time for car drivers, an irregular working day can be established:

Drivers cars(except taxi cars);

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

The number and duration of work shifts according to work schedules (shifts) with an irregular working day for drivers are set based on the normal length of the working week, and weekly rest days are provided on a general basis.

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

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

Involvement in work in excess of the standard time should be due to production needs;

The types of work performed in excess of the standard time should not differ from the usual work performed under an employment contract, job description or work instruction.

HOW TO SET AN IRREGULAR WORKING DAY?

The condition of working in irregular working hours must be fixed in the employment contract with the employee. Here is an example wording:

2.1. The employee is assigned an irregular working day.
2.2. The annual additional paid leave for an irregular working day of an employee is six calendar days.

The local normative act, which establishes the list of positions with irregular working hours, as a rule, is the internal labor regulations (see example).

In order for an employee who has an irregular working day to be involved in overtime work, a written or oral order from the employer or his own understanding of the need for this is sufficient. By the way, in order to attract an employee to work overtime, the employer must comply with a number of conditions, including obtaining the consent of the employee.

At the same time, it must be remembered that the employer has the right to involve employees with irregular working hours to work outside of normal working hours only to perform work stipulated by the employment contract, and cannot assign other work. That is, if an employee works as a clerk, he cannot be involved in the work of a driver or secretary (for this, it will already be necessary to conclude an employment contract for part-time work).

Important nuances

1. An employee who has an irregular working day cannot refuse to work outside the working day (shift), if necessary. The employer may regard such a refusal as non-fulfillment of labor duties and bring the employee to disciplinary responsibility.

2. An irregular working day is an episodic attraction to overtime work. That is, in order to maintain a balance of working time and rest time, you can work above the norm from time to time, and not every day.

3. Performing work in excess of the standard does not mean that you can do any work that is not named in the job description. The employee no longer has responsibilities, only the time spent on work increases.

4. An undoubted advantage for an employee working in irregular working hours is the establishment of an additional paid leave of at least three days. This leave can be added to the annual basic paid leave or replaced monetary compensation(at the request of the employee).

5. If you need to set an irregular working day for a specific employee, you must follow the procedure documentation such a regime.

6. The established regime of irregular working hours makes it possible to detain an employee at work without overtime work and, accordingly, its payment at higher rates.

7. The employer does not need to keep track of overtime and monitor their limits.

8. Irregular working hours do not apply to work on weekends and holidays, only to work for specific employee days.

9. If the employer abuses the right to engage in work in conditions of irregular working hours, the employee may file a complaint with labor inspection or to court (Articles 352, 356, 391 of the Labor Code of the Russian Federation). As a result, systematic processing may be recognized as overtime work and oblige the employer to pay appropriate compensation. In addition, for violation of labor law, the employer faces administrative liability under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation.

HOW TO RELAX IN CONDITIONS OF IRREGULAR WORKING DAY?

As we have already noted, overtime under irregular working hours is compensated by the provision of additional days for vacation. The duration of this leave cannot be less than three calendar days, unless a longer duration is established in the local regulations of the organization (Articles 116, 119 of the Labor Code of the Russian Federation; clause 3 of the Rules for granting annual additional paid leave to employees with irregular working hours in federal state institutions).

Counting Rules seniority required to receive additional paid leave for an irregular working day is not established in labor legislation. Traditionally, such length of service is determined by analogy with the length of service for the main paid leave, that is, it includes:

Actual work time;

The time when the employee did not actually work, but in accordance with the regulatory legal acts, the collective agreement, agreements, local regulations, the employment contract, the place of work (position) was retained;

The time of leave granted at the request of the employee without pay, not exceeding 14 calendar days during the working year.

Accordingly, this experience does not include:

The time the employee is absent from work without good reason, including as a result of his suspension from work in the cases provided for in Art. 76 of the Labor Code of the Russian Federation;

The time of parental leave until the child reaches the legal age.

An important point is the possibility of replacing additional leave for an irregular working day with monetary compensation at the request of the employee with restrictions in relation to certain categories workers (Article 126 of the Labor Code of the Russian Federation).

Additional paid leave for an irregular working day or monetary compensation is provided either on the basis of a vacation schedule or at the written request of the employee. The application is drawn up in any form (unless, of course, its form is approved by the organization’s local regulatory act) and submitted to personnel service in the manner prescribed by the organization.

The text of the application for additional leave may be as follows:

I ask you to provide me with an annual additional paid leave for an irregular working day from August 1, 2018 for three calendar days.

If the employee decides to receive monetary compensation instead of additional leave, he can draw up an application as follows:

I ask you to replace me with monetary compensation for 6 calendar days of annual additional paid leave for an irregular working day.

In conclusion, I would like to say that in terms of establishing an irregular working day, a rather free approach to the interpretation of the law has developed. The only way to change the situation is to change the law. Draft Law 1 mentioned at the beginning of the article is an attempt to solve the problem of the abnormal use of the labor of workers without any accounting and, accordingly, payment. But he only proposes to limit the time by setting a limit on overtime during the year.

The author of this article considers it appropriate to provide for the categories of workers who can be introduced an irregular working day, and considers it reasonable to establish a clear concept of an irregular working day, identifying the features that distinguish it from overtime work, since, as we know, employers usually interpret all doubts in their favor.

In addition, according to the author, it would be useful to establish a balance between the labor costs of an employee working in conditions of irregular working hours and the additional leave provided to him, establishing a proportional ratio of the time worked in excess of the norm and compensation for it.

To do this, of course, it is necessary to take into account the work of the employee in the prescribed manner and document this - by order and mark in the time sheet.

Draft Law No. 134447-7 "On Amendments to Articles 101 and 119 of the Labor Code of the Russian Federation in Part of Restricting the Use of Irregular Working Days".

00:01 - REGNUM

The bill on irregular working hours was submitted to the State Duma by deputies from the Liberal Democratic Party, headed by Igor Lebedev, correspondent reports IA REGNUM March 28th. The adoption of the draft law will allow protecting the legitimate rights and interests of employees for rest and for the established federal law working hours, while limiting the employer's rights to use irregular working hours and establishing adequate compensation for workers for processing, the authors note.

Thus, according to parliamentarians, an employer planning to use an irregular working day should fix in a collective agreement or a local normative act adopted taking into account the opinion of the representative body of workers, not only a list of positions of employees with irregular working hours, but also an approximate list of exceptional cases, in which such employees can perform their labor functions outside the duration of the working day (shift) established for them, as well as the procedure for accounting for the time actually worked by them outside the duration of the working day (shift) established for them.

Employees with irregular working hours are subject to the employer's rules that determine the start and end times of work, breaks for rest and meals. “These workers are generally exempted from work on weekends and non-working holidays,” said one of the authors of the initiative. Yaroslav Nilov.

It is proposed to prescribe in the legislation that an employee who has an irregular working day may, if necessary, occasionally perform his functions outside the duration of the working day (shift) established for him, not only by order of the employer, but also with his knowledge or consent.

At the same time, it is not allowed to establish an irregular working day for pregnant women, employees under the age of eighteen, as well as employees who are prohibited from doing so for health reasons, Nilov notes.

The conditions are prescribed under which an employee working on a part-time basis can be set an irregular working day - only if the employee has a part-time working week, but with a full working day (shift).

The bill establishes the maximum number of overtime hours in irregular working hours: the time actually worked by an employee outside the working day (shift) should not exceed 120 hours per year. Upon reaching the maximum number of hours, an employee can be involved in work only according to the rules for engaging in overtime work with appropriate compensation.

It is also proposed to prescribe the duration of the annual additional paid leave for an irregular working day - from three to fifteen calendar days, and the procedure for its determination is also established.

The employer undertakes to ensure accurate accounting of the time actually worked by each employee with an irregular working day outside the duration of the working day (shift) established for him.

One exception was made from the last rule, as well as from the rule for determining the duration of additional leave: they do not apply to the heads of organizations (branches, representative offices or other separate structural divisions), their deputies and chief accountants, as well as members of collegial executive bodies organizations, since it is not possible to organize the recording of the time of their work after hours. Features of the application of their irregular working hours may be established by the constituent documents legal entity(organizations), local regulations, employment contracts or by decisions of the employer, authorized bodies of the legal entity, as well as the owner of the property of the organization or persons (bodies) authorized by the owners.

It might be useful to read: