Organizing with a simple one. Downtime registration due to the fault of the employer. Employees were not familiar with the order to establish downtime

In the work of any company, there may be cases when its activities are interrupted.

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Such interruptions are of a short-term nature and may be associated with interruptions in the supply of raw materials, equipment breakdown, natural disaster, crisis situation, etc.

Resolving such situations requires a certain amount of time. The problems considered can provoke a lack of work for the company's employees.

The legislator has provided for the procedure for establishing a break in the activities of the company to protect the interests of workers. Such a "break" in the Labor Code of the Russian Federation is referred to as "simple".

Downtime announcement is seen as a method of keeping production and employees in place during periods of temporary business interruption.

Its introduction raises many questions from the employer, for example:

in what cases it can be declared;
maximum permissible downtime;
for how many employees;
etc.

You can get answers to these questions in the current legislation of the Russian Federation.

General points

It should be pointed out that downtime is not always the employer's fault. The legislation provides that it may arise through the fault of the employee, as well as due to the action of reasons beyond the control of the parties.

In different situations, the process itself will be formalized in different ways, as well as the payment procedure, etc.

The fault of an employee in idle time may be associated with a breakdown of equipment, mechanisms, which entails the inability to work on it.

In general, many points remain unclear. The procedure does not have a detailed regulation in the legislation. It has not been clarified and raises various questions.

How idle time is paid due to the fault of the employer at the enterprise

The procedure for compensation for downtime is defined in Art. ... This provision stipulates that in situations where he was educated through the fault of the employer, the employee receives at least 2/3 of the average earnings.

If the idle time was formed for reasons that do not depend on the employee and the employer, then the employee is paid at least 2/3 of the salary.

When the employee himself is to blame for the downtime, he does not receive payment. So, if we consider the suspension of work for reasons that depend on the employer, then we should focus on the concept - "average earnings".

It is he who will affect the amount of compensation for downtime due to the fault of the employer. The concept of "average wage»Given in. How to calculate it? According to a single process approved by the Labor Code of the Russian Federation.

The calculation takes into account all types of payments that are valid for the respective employer. Moreover, the source of their implementation is not taken into account.

The calculation is made according to the same formula, regardless of the employee's work schedule. Average wages are identified over the last 12 months that preceded the downtime period.

To carry out the calculation, all payments received by the employee are summed up, and then they are divided by 12 (the number of months).

If you need to calculate the average daily earnings, then the additional amount received is divided by 29.4 (the average number of days in a month).

From the obtained value, 2/3 is calculated - this is the amount of remuneration for the period of downtime due to the fault of the employer.

Please note that in Art. 139 of the Labor Code of the Russian Federation, the legislator allows the possibility of a different procedure for carrying out calculations, including a different period for calculating wages.

Such rules can be established in the local regulations of the organization. They will act in the event that they do not worsen the position of the worker in comparison with what is approved by Art.

What are the reasons

All reasons for downtime can be classified into three groups:

incurred through the fault of the employee;
incurred through the fault of the employer;
arising from circumstances that do not depend on the employee or employer.

We are interested in the second group of reasons - downtime due to the fault of the employer. What are these circumstances? Let's consider the main ones:

Suspension from employee activities	Who could not complete training or medical examination through no fault of their own
Suspension of an employee	Due to the delay in compensation for his wages for more than 15 days
Strike	Which is recognized as legal for workers who did not take part in it, but who are deprived of the right to exercise a labor function
Refusal of an employee to fulfill labor function	Due to not providing him with items of individual and collective protection
Refusal of the worker to fulfill job responsibilities	If this is associated with the formation of danger to his life and health
Suspension of work due to reorganization of the company	Liquidation of structural units, etc.
Administrative suspension of the operation of an enterprise in cases	Approved in
Non-fulfillment by the enterprise of obligations under agreements with counterparties	What caused the shortage of raw materials
Lack of demand for goods	—
Entrepreneurial risks	—

Please note that the crisis, that is, negative economic processes, is also the employer's fault. Workers should be compensated for downtime according to the rules of Art. 157 of the Labor Code of the Russian Federation.

Often times, businesses require workers to write claims without pay.

Please note that this is illegal. Providing of this type rest is allowed only by virtue of the will of the employee himself.

Registration of notification

We have already mentioned such a document as a notice of simple, which is sent to the employment service. This obligation operates by virtue of the provisions of Art. 25 of Law No. 1032.

We remind you that it should be directed only when downtime is announced throughout the enterprise as a whole. The laws do not stipulate any requirements for the content of the notice.

It is formed in any form. The following data must be written in the notification:

A copy of the downtime order issued by the head may be attached to this notice. Please note that individual job centers have their own forms for this notice.

In this case, it is necessary to prepare a document according to the approved example. If this notice is not provided, the employer may be subject to sanctions by virtue of the action.

Sample order

An order declaring a downtime is a document, the preparation of which is optional according to the Labor Code of the Russian Federation.

But it is desirable to issue it, since it is decided organizational issues for example those related to the downtime compensation process. It can also be used to notify all workers about the suspension of activities.

The following data must be recorded in the order:

the date	Start and finish downtime
The reason for the formation of downtime	Guided by those presented in the Labor Code of the Russian Federation
Whose fault was the simple	If it's already installed
, Full name of workers or name structural units company	In respect of which he is declared
Order	Downtime compensation
The need to stay at the workplace of workers	Who are affected by downtime, or their release from this duty

You can specify an estimated date for the completion of the downtime. If by this date it is not terminated, then the period is allowed to be registered in additional order... It is also permissible to draw up an act for early termination.

Drawing up a statement

A simple statement is provided by the employee when the reason for the suspension of activities is identified. He must inform the manager or employer about it.

This obligation is approved in Art. 157 of the Labor Code of the Russian Federation. Failure to comply is considered as non-observance of labor discipline, which may become a reason for bringing to disciplinary responsibility ().

In the application it is necessary to register the reason, the beginning of the downtime, put a signature.

Frequently asked Questions

Simple is a phenomenon that accompanies a workflow for various reasons. However, the law pays little attention to this issue and only regulates certain points.

It is because of this that various questions and controversial points arise in practice. Let's take a look at some of them.

Where should the employee be at this time

Simple stipulates that workers do not fulfill their labor functions. However, this does not mean that they may be absent from the workplace.

This is due to the fact that downtime can end at any time. Simple is not a time of rest for a worker.

Consequently, employees must stay at the workplace, unless otherwise provided in local acts or a downtime order.

Thus, workers will be exempted from the obligation to be at work during downtime, only by the decision of the employer.

Designation in the timesheet

According to this normative legal act, the allowance for the period of inactivity is reimbursed in the same amount in which the salary is maintained for this period, but not more than the amount of the allowance that this worker would receive according to general rules their calculations.

The most unpleasant situation in production process the company is suspended, that is, downtime. This term can be deciphered as a forced inaction. There may be a downtime due to various circumstances, and since such a situation is atypical, then the responsibility for its formation should fall on someone. Legislators consider three main criteria, blaming the downtime on the employer, the employee, or stating the reasons for the suspension of production beyond the control of these parties.

Identifying the culprit of the downtime has a significant impact on staff pay, which is why this issue is so important. Our publication examines all the nuances of processing and paying for downtime due to the fault of the employer, let's talk about this in detail.

Downtime due to the fault of the employer

Speaking about the forced suspension of production due to the fault of the employer, the legislator characterizes it as follows: a firm (or individual divisions) can stand idle for economic, technical or organizational reasons.

The economic policy can be attributed to the untenable company policy. For example, they planned and released a product that did not find its consumer. The firm, correcting the situation, temporarily stops and redesigns production or the business as a whole. Technical reasons arise during the installation of new equipment, supply disruptions.

Organizational reasons include a lot of reasons - the impossibility of admitting employees to work requiring special permission (and the administration did not organize training on time), the lack of a medical examination certificate (if the personnel officer did not send the employee on time to medical examination), failure of the employer to provide normal working conditions, revocation of the company's license, financial crisis and many others.

Labor legislation cannot provide for all the variations in the occurrence of downtime, but compliance with the aforementioned characteristics establishes the fact of inaction, as simple due to the fault of the employer. In such cases, downtime can also be considered as the protection of workers in socially, since the Labor Code of the Russian Federation provides for downtime payment.

Simple due to the fault of the employer: how to apply?

When a similar situation arises in production, the administration often resolves the issue quickly, giving the staff a vacation. But, if it is impossible to send workers to rest, then the downtime should be documented, having secured from the troubles associated with all kinds of checks.

Registration of downtime due to the fault of the employer step-by-step procedure

Temporary absence of work is recorded by an act, which indicates its reason. In a situation where one employee is idle (for example, due to the lack of source materials), he needs to draw up a memo or a notice of downtime due to the fault of the employer in writing, sending it to his immediate superior;
The order of the head of the company introduces a special regime due to the lack of work due to the fault of the employer. The order reflects the validity period of such a provision, the subdivisions to which it applies, the terms of payment to personnel and the duties of employees - the obligation to be present at the workplace is stipulated or it is allowed to be absent;
It is obligatory to take into account the time of suspension of production. In the timesheet, idle days are encrypted with an alphabetic (RP) or numerical code recommended by Goskomstat (31). However, the company can use its own designation of downtime due to the fault of the employer.

How to draw up an act

The created simple commission draws up. The commission must include representatives:

company administration;
trade union committee;
labor collective.

Draw up a document on letterhead companies, authenticate with signatures and register in the journal of outgoing documentation. After that, the act becomes the basis for issuing an order.

The situation is much simpler with notifying the administration of the downtime of individual employees for various reasons. Employees are obliged to notify management by drawing up a note or notice of idle time due to the fault of the employer.

Simple order due to the fault of the employer

The legislator has not clearly defined the form of the order on the introduction of the idle regime, so enterprises use their developed templates. It is only important to indicate:

the duration of the downtime;
the reasons for its occurrence;
divisions whose personnel are affected by the suspension of work, with a list of employees (full name and positions) recognized as idle due to the fault of the employer;
an indication of the conditions and amount of payment for downtime;
information about the presence / absence of personnel at the workplace during downtime.

We offer exemplary order about the simple fault of the employer.

Sample:

Payment for downtime due to the fault of the employer

There are no changes in this area in 2018. Establishing responsibility for the occurrence of downtime, the legislator strictly delimits the amount of payment to employees for the period of inactivity. According to Art. 157 of the Labor Code of the Russian Federation, it is possible to calculate downtime due to the fault of the employer by applying the formula:

RP = 2/3 SZ x KDP, where
- СЗ - average earnings,
- КДП - the number of days of downtime.

When calculating, it is necessary to take into account that exactly 2/3 of the average earnings are involved in the calculations, and not the official salary or the tariff rate. Let us analyze clearly how idle time is paid due to the fault of the employer.

Example

Recognized by the company's management as a simple turner Petrov I.I. due to lack of necessary materials, it lasted 3 working days - from January 10th to 12th, 2018. The corresponding notification to the employee served as the basis for the issuance of an order on the introduction of a three-day downtime. For simplicity, we will assume that the employee has not been on vacation or sick leave over the past year.

Calculation algorithm:

Average earnings in the previous 12 months:
salary 40,000 rubles. x 12 = 480,000 rubles;

monthly surcharge for a class of 5000 rubles. x 12 = 60,000 rubles.

remuneration for the results achieved ( lump sum payment) RUB 100,000

Total SZ for the year amounted to 640,000 rubles.

The number of working days for 2017 is 247 days.
Average daily earnings amounted to 2,591.09 rubles. (640,000 rubles / 247 days)

Payment for 1 day of downtime will be RUB 1,727.39. (2591.09 / 3 x 2)
Payment for 3 days of downtime - 5182.17 rubles. (1727.39 x 3d)

So, the employee will be paid for idle days in the amount of 5182.17 rubles.

Let us add for information that in case of idle time due to the fault of the employee, no compensation is provided by law. If a natural disaster or other force majeure circumstances that occurred regardless of the employer or employees are to blame for the suspension of production, the staff will be paid compensation in the amount of 2/3 of the salary or tariff rate during the downtime. These payments, like salaries, are subject to personal income tax, and insurance premiums are charged on them.

A separate issue is the registration of sick leave during downtime due to the fault of the employer. The FSS does not pay for sick days during the downtime, justifying this by the fact that there is no work during the downtime and 2/3 of the average earnings are paid by the employer. These days are not included in the number of days for which disability benefits are due (Articles 7, 9 of Law No. 255-FZ). Thus, the employee retains income, which the employer is obliged to pay during the downtime.

Failure by an employee to fulfill their job duties usually implies penalties from the employer. After all, who does not work may not count on remuneration. But there are times when an employee simply cannot do the job, and this happened because of the employer. The conditions for such a break vary, but in all such situations, the employee is entitled to compensation.

Peculiarities. In what cases it can occur

Forced downtime is a certain period of time in which the employee cannot fulfill his obligations prescribed in the employment contract. The problems that led to this situation can vary, as well as their culprits.

Exist several reasons for such pauses in work:

Economic kind. For example, a firm has no orders. And although this reason can be attributed to the economic situation in the country and considered external, judges, as a rule, consider it as the direct fault of the entrepreneur. After all, the manager is obliged to correctly calculate the financial risks. Therefore, if there are any circumstances justifying the employer, he will be obliged to prove this in court - which, however, does not exempt him from the need to compensate employees for wasted time.
Technical nature. Here the circle of potential culprits is much wider. If the manager deliberately delays the process of completing the task, the blame for the pause lies with him. If an employee breaks the only equipment suitable for performing the work until a new one is purchased and delivered / installed, he is responsible for the pause in work. External reasons can also play a role: for example, the materials necessary for repairs did not arrive. Outside supplies are dependent on the logistics of the other company, so a third party is responsible for the downtime.
Organizational nature. Strikes are a striking example. People who did not join the rally are still unable to do their job. The legitimacy of the protests plays a big role: if everything is legitimate, the manager is to blame. If not - on anyone. This also determines the amount of compensation and whether it needs to be paid at all.

Without a trial, all the nuances of downtime are often not resolved. Indeed, the Labor Code of the Russian Federation does not contain a clear list of situations that can be unequivocally classified as simple due to someone else's fault. The proceedings should establish the nature of the work interruption and whether one of the parties to the employment contract is responsible for it. This directly affects the pay for work breaks.

Also, one should not confuse the simple and the flaw. At the first, the employee does not work at all. In case of failure, the person does not "fit" into the schedule of the required number of shifts, but he fulfills his duties.

How to make a simple one: step by step instructions

First you need to clearly determine the reasons for the pause in work and in the future, all documents are drawn up on the basis of their justification. In this matter, the documentation of the institution will greatly help, with the help of which the fact of the suspension of activities will be obvious. For example, the accounting department is obliged to record a change in income, a lack of certain materials for work... All invoices, office notes and other similar acts, the employer must collect and carefully study.

In the Labor Code of the Russian Federation, the process of registration of a break in work is not spelled out, therefore, further steps are described based on numerous court proceedings.

Step one. In an official business format, we write simple order... There is no clear form, so the text of the order is drawn up by each manager personally. What needs to be included in the document:

specific date and exact time the beginning of a break in work;
it is also desirable to determine the date of its end, although the employer does not always have this information - for example, if there is a need to clarify the circumstances of the pause in work. Then a phrase is added to the agreement that the break will end when the event N occurs;
for what reason the downtime happened and who is responsible for it;
depending on the nature of the downtime, it can be entered either for one / several divisions of the enterprise, or for the entire organization. In both cases, the entrepreneur is obliged to list by name each employee who will be affected by the break in work, indicating their positions. Also, separately write down the names of departments (workshops, offices, etc.) that will be idle;
a link or a quote from Article 157 of the Labor Code of the Russian Federation, in the part that describes the payment procedure for a specific culprit of the downtime;
if the manager decided that his employees may not be present at the workplace during a pause in the performance of duties, this must be reflected in the order. If this item is not present, employees cannot be absent from their places or not come to work.

This rule is due to the fact that a pause in work is not the same as rest. That is, although the employee has nothing to do, he still has to visit the place of work, unless a different alignment seems more beneficial to the manager.

All employees concerned this situation are obliged to put their signature on the order, thereby confirming that they have read the document.

Step two. It must be performed only if the employer completely freezes the activities of the enterprise... In this case, the employment service must be notified. After the start of a pause in work, the manager has three working days to write this notice and send it to the correct address. There is also no clearly defined form of the document.

Step three. Filling out the timesheet... Time in the report card is calculated to the nearest minute. Depending on the reason for the downtime, you need to specify a special code.

Examples of documents for registration

A downtime order can be issued as follows:

An example of an explanatory note in case of idle time due to the employee's fault:

How forced downtime is paid

The maximum payment amounts are not limited, the employer has the right to establish them according to on their own . The legislation specifies only minimum requirements to compensation, payments below this limit will be illegal.

Downtime due to the fault of the employee is not compensable. In such cases, we are most likely talking about disciplinary misconduct, so the entrepreneur can additionally punish the employee for a break in work - for example, reprimand him with entry into his personal file, or deprive him of the bonus.

Downtime due to the fault of the employer paid at least two-thirds of the employee's average earnings.

Downtime for other reasons that came from outside and beyond the control of the parties to the employment contract is paid in the amount of 2/3 of the wage rate or salary of the employee, calculated in proportion to the break in work.

What to do for an employee at this time

If the employer did not send the employee home, he has the right to offer the employee to temporarily perform other job duties... This requires the written consent of the employee, as well as the proper execution of his temporary transfer, enshrined in a special act.

In this case, for the work performed the employee must be paid the full salary, which is received by people performing the same responsibilities in the organization.

Transfer to a less qualified job (respectively, with a lower wage) is prohibited.

Sometimes workers can also fulfill their previous job duties in another area... In this case, the employer does two things: draws up an act on the transfer of the employee and stops idle time in relation to him. This method is appropriate only if the person's job responsibilities do not change at the new work site.

If the employee does not agree to the transfer, he has the right to still visit workplace and do nothing there.

Among entrepreneurs there are the practice of sending subordinates on business trips during their downtime... This is not prohibited by law, but then you need to pay not a pause in work, but a business trip.

Particularly bored employees can clean the office, but this is an exclusively personal impulse of their soul, so they have no right to demand for such payment. Cleaning of the office is the duty of the cleaning lady, who is paid to do it. The employer cannot force the workers to clean up, "since they are not busy with anything anyway".

In general, every employee should be aware that during legal downtime, he has every right not to work and not agree to temporary transfers to other positions. Everyone decides for himself how to diversify his activities in the workplace when there is no direct work. The main thing is not to interfere with other employees in fulfilling their duties.

Video contains Additional information on staff reduction, registration of company downtime.

Downtime announcements are a way to keep production and employees safe during periods of temporary shutdown. However, its introduction raises many questions. When can you declare it simple? On what period? For how many workers? Can the absence of orders be considered the fault of the employer, and how, in this case, to pay for the temporary suspension of work? Can downtime pay be less minimum size wages (minimum wage)?

What is simple?

Downtime is a temporary suspension of work for reasons of an economic, technological, technical or organizational nature (Article 72_2 of the Labor Code of the Russian Federation, hereinafter referred to as the Labor Code of the Russian Federation). Thus, the reasons for downtime can be completely different: equipment breakdown, undersupply of components, falling demand for goods produced by the organization, etc. During a crisis, as a rule, downtime can lead to economic difficulties faced by the employer.

What is the legal significance of the reasons why downtime is possible?

1. The employee may not agree that there is no work for him, ie. to challenge the very fact of the existence of reasons of an economic, technical, technological or organizational nature, entailing a temporary suspension of work.
In this case, the employee has the right to file a complaint with the labor inspectorate or the prosecutor's office, or go to court with a claim to recognize the order to send it to a simple unlawful, the employer's obligation to admit him to work, to recover the difference in the payment of downtime up to the full average earnings on the basis of Art. 234 of the Labor Code of the Russian Federation, which provides for the obligation of the employer to reimburse the employee for the earnings not received by him in all cases of illegal deprivation of his opportunity to work.
It should be borne in mind that when contacting the labor inspectorate and / or the prosecutor's office, most likely, these bodies will consider that there is a disputable situation, which only the court can finally resolve and will also recommend that you go to court with a claim.
What could be the actual basis of your claim? - You need to look at the situation. You can find out the scope of work of your colleagues who are not in idle time, compare your situation with those who also do not work, etc. It may not be easy, but there may be one advice here: stock up on evidence of the illegality of sending you to a simple one in advance, before the trial. Depending on the situation, you can also refer to the fact that you were sent to idle on some fixed date: you can also argue with this, arguing that at any time new contracts with suppliers and customers may appear or negotiations that have begun may be completed and etc., i.e. that it is virtually impossible to foresee in advance how long the downtime will last.
After assessing the situation, or better getting the advice of a specialist, having weighed all the risks, you can go to court.

2. Downtime can arise in the course of the normal course of events: the supplier of the components turned out to be dishonest and delayed the delivery. On the other hand, extraordinary circumstances can also lead to downtime, namely: a natural or man-made disaster, industrial accident, industrial accident, fire, flood, hunger, earthquake, epidemic or epizootic and any exceptional cases that endanger life or normal living conditions of the entire population or part of it (part 2 of article 72_2 of the Labor Code of the Russian Federation). If the downtime is caused by the indicated extraordinary circumstances, then it is possible temporary transfer employee without his consent for up to one month for an unconditional labor contract work for the same employer (see below for more details on this transfer).

Temporarily out of work during a crisis - what should an employee do?

So, during a crisis, economic reasons usually lead to downtime. However, since idle time entails the provision of pay to employees (as a general rule), as well as a number of guarantees, employers often resort to various violations of the law.
In the event of economic difficulties, the employer has several legal options:

1) to reduce the number or staff;
2) issue a downtime order;
3) if economic reasons lead to a change in organizational or technological working conditions (changes in technology and production technology, structural reorganization of production, etc.), which, in turn, leads to the threat of mass layoffs of employees, the employer in order to preserve jobs has the right in the order of Art. 74 of the Labor Code of the Russian Federation to introduce a part-time regime for up to six months. The third option is not considered in this article.

In the first case, the employer decides on the impossibility of retaining employees, in this case his right to reduce the number or staff is recognized by the legislator. The decision on the expediency of such actions is taken by the employer's body, which has such a right in accordance with constituent documents; the validity of this decision cannot be challenged in court or when applying to government bodies(labor inspection, prosecutor's office). The trade union can influence this decision and its consequences to some extent: when deciding to reduce the number or staff of employees and the possible termination of employment contracts with employees, the employer is obliged to writing inform the elected trade union body about this no later than two months (in case of possible massive redundancies - no later than three months) before the start of the relevant events. The indicated periods of warning the trade union committee, in fact, coincide with the periods of warning the workers themselves about their dismissal: the employer is obliged to notify the trade union committee no later than two months before the start of termination of employment contracts with employees. This was clarified in the Definition of the Constitutional Court of the Russian Federation of 15.01.2008 N 201-O-P. The employer can consult with the trade union and take into account his opinion regarding the necessity and procedure for the reduction.

In the second case, the employer decides to retain employees. Russian labor legislation establishes special norms that allow the employee and the employer to survive the period of temporary absence of work, while retaining the workplace for the employee. In the case of temporary absence of work, the employer is obliged to formalize the presence of the employee in idle time.
However, in practice, a different approach is widespread, when the employer draws up documents that the employee is on unpaid leave - this allows not to pay wages, and the period of such leave is not limited to the maximum duration. But for an employee, such a vacation is often an unacceptable option precisely because of the lack of payment. Sending unpaid leave forcibly is illegal: according to Art. 128 of the Labor Code of the Russian Federation, unpaid leave can be granted to an employee upon his written application for family reasons and other valid reasons; the duration of the leave is determined by agreement between the employee and the employer. For more information on self-funded vacations, see here.

What awaits the employee in case of downtime?

Since downtime is a temporary suspension of work, it means that you are not doing your normal work. However, there is no norm allowing an employee to be absent from his workplace during downtime. After all, downtime can end at any time: equipment repairs will be completed, goods will be unloaded, etc. The downtime period is a special period, it is not a rest time for the employee, that is, the time during which the employee is free from performance. job responsibilities and which he can use as he sees it. Consequently, during the period of downtime, employees in work time must be at their workplaces. This conclusion is confirmed judicial practice(see, for example, the resolution of the FAS of the Volgo-Vyatka District of February 28, 2006 No.A11-5850 / 2005-K2-27 / 257, decision Arbitration court Ryazan region dated January 22, 2007 N А54-4926 / 2006С18).
At the same time, in a collective agreement, agreement, local regulation or your individual labor contract, it may be provided that during the entire period of downtime or part of it, employees are exempt from the obligation to be present at their workplaces. This provision of the collective agreement or local normative act will be valid because it improves the position of workers in comparison with the established labor legislation and other regulatory legal acts containing norms labor law(which is allowed by Art. 8 and Art. 9 of the Labor Code of the Russian Federation).

Temporary transfer to another job in case of downtime

In the normal mode of work, the employee is obliged to perform only the work for which he was hired; he has the right to refuse an offer or assignment to perform any other work not provided for by his employment contract.

In case of downtime caused by emergencies which were mentioned above, the situation is changing: the employer has the right, without taking into account the consent of the employee, to transfer him for a period of up to one month to another job not provided for by the employment contract.
The conditions for the legality of such a transfer are:
- the cause of downtime is precisely those extraordinary circumstances that are indicated in part two of Art. 72_2 Labor Code of the Russian Federation;
- the temporary nature of the transfer: for up to one month;
- transfer to work requiring lower qualifications is allowed only with the written consent of the employee;
- it is forbidden to transfer an employee to work that is contraindicated for him for health reasons (Article 72_1 of the Labor Code of the Russian Federation).
In such a transfer, an employee must be paid according to the work performed, but in any case - not lower than the average earnings for the previous job, even if work of a lower qualification is being performed.
Temporary transfer to another job due to downtime is drawn up by an order (order) of the manager, which must indicate the job to which the employee is transferred (position, profession, specialty, qualification or specific job responsibilities), the start and end date of transfer to another job, specific reason for the transfer.

How should the downtime be paid?

During the period of downtime, your workplace is retained, and as a general rule, this period must be paid.
The current Labor Code of the Russian Federation provides that downtime is paid in different ways, depending on the presence or absence of fault in the idle time of one of the parties labor relations(Art. 157):
downtime due to the fault of the employer is paid in the amount of at least two-thirds of the employee's average wage;
downtime for reasons beyond the control of the employer and the employee is paid in the amount of at least two-thirds of the tariff rate, salary (official salary), calculated in proportion to the downtime;
downtime due to the fault of the employee is not paid.

Please note that only minimum downtime payment limits are set by law. If an employment contract, collective agreement or agreement provides for a higher amount of remuneration, then the rules of the labor contract, collective agreement, agreement are applied accordingly.

The average earnings to pay for downtime due to the fault of the employer is determined in general order according to Art. 139 of the Labor Code of the Russian Federation, as well as the Decree of the Government of the Russian Federation "On the specifics of the procedure for calculating the average wage" dated December 24, 2007 No. 922. To calculate the average wage, all types of payments provided for by the wage system used by the respective employer are taken into account, regardless of the source of these payments. Billing period - i.e. the period for which these payments are taken into account is equal to 12 calendar months preceding the month in which the downtime occurred. In this case, a calendar month is considered to be the period from the 1st to the 30th (31st) day of the corresponding month, inclusive (in February - to the 28th (29th) day inclusive).

Average employee earnings
=
Average daily earnings
x 2/3 x

Average daily earnings, as a general rule, are calculated by dividing the amount of wages actually accrued for days worked in the billing period, including bonuses and remuneration accounted for in accordance with the above-mentioned resolution of the Government of the Russian Federation, by the number of days actually worked during this period.
When determining the average earnings of an employee with the summarized accounting for working hours, it is necessary to determine the average hourly earnings and multiply it by the number of working hours according to the employee's schedule in the period to be paid.

Payment for downtime for reasons beyond the control of the employee and the employer is determined depending on the form of remuneration established in the organization: time-based or piece-rate.
At time-based payment labor wages of employees, depending on the conditions of payment established for you, are calculated on the basis of:
1) or hourly tariff rate;
2) or daily tariff rate;
3) or salary (official salary).

If an employee has an hourly wage rate, then the pay for the downtime is calculated by multiplying the hourly wage rate by 2/3 and by the norm of working hours per working day (shift) and by the number of working days during the downtime:

=
Hourly rate
Working hours per working day (shift)
x 2/3 x
Number of working days in the idle period

If a daily wage rate is set for an employee, then the pay for the downtime period is calculated by multiplying the daily wage rate by 2/3 and by the number of working days in the downtime period:

Downtime pay for reasons beyond the control of the employee and the employer
=
Daily wage rate
x 2/3 x
Number of working days in the idle period

If the employee has a salary (official salary), i.e. a fixed amount of remuneration for a calendar month, the downtime payment is calculated as follows:

Downtime pay for reasons beyond the control of the employee and the employer
=
Salary (official salary)
: total amount working days per month
x 2/3 x
Number of working days in the idle period

The payment of downtime to workers whose work is paid on a piece-rate basis is calculated on the basis of 2/3 of their hourly (daily) rate in the same manner as for workers whose work is paid on a time basis.

Downtime due to the fault of the employee is not payable.

Thus, the employer has the right not to pay for downtime only in one case: if it is established that the employee is guilty of the downtime, for example, the employee deliberately made the equipment unusable.

Is it the employer's fault for the simple: how to establish it?

It is often difficult to establish whether the employer's fault or the downtime has arisen for reasons beyond the control of either party to the employment contract is difficult in practice. Often, employers themselves are in no hurry to admit their guilt, determining the payment for downtime based on the employee's wage rate or salary. This can be extremely unprofitable for the employee, since the tariff (constant) part of his earnings can be quite low, and the main part of his income can be so-called. variable parts: various allowances and surcharges, bonuses, and payment overtime work, work on holidays and weekends, etc. All these payments are taken into account when calculating the average salary, but are not included in your salary or tariff rate.

In connection with this problem, in a dispute with the employer about the amount of payment for downtime, one can refer to the opinion of the Chamber of Commerce and Industry of the Russian Federation, according to which “negative financial and economic factors, the so-called“ global financial crisis ”<...>are not force majeure in the relations of subjects entrepreneurial activity, but refer to financial risks... As a rule, force majeure circumstances include fires, floods, earthquakes, hurricanes, hostilities, prohibitions on the export and import of goods, epidemics, strikes or other circumstances expressly provided by the parties to the contract. However, according to paragraph 3 of Art. 401 [ Civil Code RF], force majeure circumstances do not include, in particular, a violation of obligations by the debtor's counterparties, the lack of the necessary goods on the market, the lack of the necessary Money"(Letter dated November 25, 2008 No. 9/600, not officially published). In other words, the circumstances specified in the last sentence do not exempt the organization from the obligation to fulfill the contracts concluded with its counterparties, and their failure to fulfill for the indicated reasons may entail bringing the debtor to civil liability (collection of interest, etc.), i.e. the debtor's behavior is found guilty by the court. The same logic can be used to justify labor disputes with the employer on the issue of payment for downtime.

This conclusion is confirmed by judicial practice.
So, in the Third edition judicial practice(2009), prepared by the Central Council of the Mining and Metallurgical Trade Union of Russia, provides the following examples of successful court practice in recovering the difference in downtime payments of up to 2/3 of the average wage.
JSC "Zlatoust Metallurgical Plant" (Chelyabinsk Region) filed a lawsuit against the order of the state labor inspector as illegal. The applicant did not agree with the inspector's demands: to pay downtime in the amount of at least two-thirds of the employee's average wage and to pay for the shortage of working time in part-time mode as downtime.
In court, the applicant's representative indicated that the order had been issued without taking into account the current situation in the metallurgical industry. The lack of orders for the company's products is caused by the deterioration of the general economic situation in the country and abroad in the context of the global financial and economic crisis. In this regard, a decrease in production volumes finished products and the suspension of production facilities should be considered as circumstances beyond the control of the worker and the employer. Consequently, the payment for downtime should be made in the amount of two thirds of the tariff rate (salary), calculated in proportion to the downtime.
Having examined the circumstances of the case, the court upheld the order of the state labor inspector and ordered the applicant to pay for the downtime for economic reasons in the amount of at least two-thirds of the employee's average wage.

A similar case on the claim of OJSC “Kombinat“ Magnezit ”was considered by the Satka City Court of the Chelyabinsk Region. However, in this case, the court of first instance considered that the downtime occurred for reasons beyond the fault of the employer and the employee, and, therefore, payment for the downtime period should be made on the basis of two-thirds of the tariff rate.
The Judicial Collegium for Civil Cases of the Chelyabinsk Regional Court did not agree with the decision of the court of first instance and considered the requirement of the state labor inspector to pay for downtime in the amount of at least two-thirds of the average salary to be legitimate.
In both cases, the chief legal labor inspector in the Chelyabinsk region L. Meshcheryakova and the legal labor inspector A. Goryunov took part in the court hearings.

OJSC "Uralredmet" applied to the Kirovsky District Court of Yekaterinburg with a claim against State Inspection labor in Sverdlovsk region on the recognition of the prescription as illegal and its cancellation.
The essence of the dispute. The Chief State Labor Inspector issued an order from OJSC Uralredmet to eliminate violations of labor legislation: to pay for downtime in the amount of at least two-thirds of the average wage of an employee.
The plaintiff, in support of his claims, indicated that the reasons for the downtime were non-payment by buyers for the products manufactured by the enterprise, a decrease in orders and other reasons - the consequences of the financial and economic crisis. Consequently, downtime must be paid at least two-thirds of the rate.
The court disagreed with the arguments of the plaintiff and dismissed the claim. The deputy head of the legal department of the Sverdlovsk regional committee of the trade union O. Rakhimov took part in the hearing.

Can the payment for downtime be less than the minimum wage?

Yes, maybe, because in any case, you are paid either 2/3 of the average salary, or 2/3 of the salary (official salary) / tariff rate, and not the full salary. Secondly, the minimum wage is set for a monthly period, and downtime can last only a few days.

Another question, which is beyond the scope of this article, is whether your salary can be less than the minimum wage?
In our opinion, your salary (official salary) cannot be lower than the minimum wage (minimum wage). This conclusion is based on the following.
On the one hand, according to Art. 133 of the Labor Code of the Russian Federation, the monthly wage of an employee who has fully completed the working time during this period and fulfilled the labor standards (labor duties) cannot be lower than the minimum wage. In other words, in order to qualify for wages in the amount of the minimum wage, you need to fulfill only two conditions: 1) work out the standard of working hours (and not rework it through overtime or work on holidays), and 2) fulfill the labor standards (labor duties). No other additional conditions not required.

If we compare this provision of the Labor Code of the Russian Federation with the concept of a salary (official salary) given in Art. 129 of the Labor Code of the Russian Federation, it becomes, in our opinion, obvious that it (the salary) cannot be less than the minimum wage. So, a salary (official salary) is a fixed amount of payment to an employee for the performance of labor (official) duties of a certain complexity for a calendar month, excluding compensation, incentive and social payments. Those. to qualify for a full salary, you must fulfill the same two conditions: 1) work a calendar month and 2) fulfill your labor duties for this period. No other conditions are required.

Do I need to notify the employer about the beginning of the downtime?

You are obliged to notify the employer, namely, inform your immediate supervisor, or another representative of the employer (for example, the head of the organization) about the beginning of downtime caused by equipment breakdown and other reasons that make it impossible for you to continue performing your job.
The Labor Code of the Russian Federation does not link your right to receive downtime payment with the fulfillment of this obligation, but, nevertheless, it is in your interests to report such reasons in writing. It is best to also secure a note of acceptance on your copy of the service (memo) note. This will fix the exact start of the downtime, and therefore will affect the correctness of its payment. Moreover, you will also avoid the risk of being punished for non-performance of your job duties: if you report a downtime in time, you are not responsible for the inability to fulfill your job duties.

What if there is no work, and the employer refuses to issue a simple one?

The start and end of the downtime must be recorded by the employer. The employer is obliged to issue an order to send the employee (employees) to idle time, indicating his reason and the procedure for paying for the idle time.
On the basis of this document, entries are made in the time sheet (forms N T-12 and T-13, approved by the decree of the State Statistics Committee of the Russian Federation of January 5, 2004 N 1). To indicate downtime for reasons beyond the control of the employer and the employee, is used symbol: alphabetic code - "NP" or digital code - 32, and to indicate being idle through the fault of the employer: alphabetic code "RP" or digital code - 31.
If the work is not provided according to the labor contract, and the employer does not issue an order for assignment to a simple job, you should write and send to the employer a statement that you are idle and ask to pay for this time in accordance with labor legislation. The application must indicate the reason for the downtime, as it affects the amount of payment due to the employee. You can also indicate that you are ready to start work at any time and ask for a reason for not working for you.

In case of a possible dispute, it makes sense to obtain evidence confirming the lack of work. If it is not possible to make copies of internal working documents or journals, which indicate what work is entrusted to the employee (if such documents are maintained), you can contact the elected trade union body so that on behalf of the trade union an act was drawn up regarding one or more employees on the absence work. The act should indicate that the employee was at the workplace, but he was not given or assigned to work. The act is signed by members of the commission created by the trade union committee, and can also be signed by witnesses (colleagues of the employee), the employee himself. In the absence of a trade union committee, enlist the support of your colleagues, pass the statement in the presence of witnesses.

There are cases when the employer does not formalize the idle time due to his own fault, and the immediate supervisors instead verbally inform the employees that today it is possible not to go to work. However, such an unplanned “rest time” for workers can turn out to be bad for them: it is required to work later on Saturday or Sunday. At the same time, all these manipulations may not be reflected in the internal documentation, as well as in accounting.
You can either agree to such working conditions, realizing that you make big concessions to the employer and give him a real opportunity to save: firstly, do not pay for idle time, and secondly, do not pay an increased amount of work on the day off.

If you do not agree to such a "work schedule", then do not pay attention to verbal warnings and calls, show up at your workplace, write a statement about the beginning of the downtime, passing it under the mark of acceptance. If you do not pay for this time, write a complaint to the labor inspectorate, prosecutor's office, or go to court. If you are asked to appear "to work" the downtime on your day off according to your schedule, the day off, demand the issuance of a written order about this. It is better to get a copy of the shift schedule with your signature on it in advance in order to have evidence on hand that the controversial day was a day off for you. To avoid the risk of dismissal for absenteeism, show up for work on a weekend, but record this fact: by your applications for an order to attract you to work on a weekend, to pay for work on a weekend in an increased amount, by the testimony of colleagues.

Downtime and temporary disability, the impact of downtime on seniority

If you fall ill during the downtime, then you are entitled to payment of your sick leave.
The issues of payment for temporary disability and maternity leave during downtime are regulated by Federal Law No. 255-FZ of December 29, 2006 "On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Maternity" (hereinafter - Law No. 255-FZ). According to paragraph 7 of Art. 7 of Law No. 255, temporary disability allowance for a period of inactivity is paid in the same amount in which the salary is maintained during this time, but not higher than the amount of the allowance that this worker or employee would receive according to the general rules for calculating benefits.

Downtime should be counted in the seniority, which gives the right to annual paid leave. So, according to Art. 121 of the Labor Code of the Russian Federation, this length of service includes the time when the employee did not actually work, but in accordance with the labor legislation he retained his place of work (position), i.e. downtime is included at this time.

Downtime should be included in the length of service to determine the amount of benefits for temporary disability, for pregnancy and childbirth as part of a more general period: the period of work under an employment contract. Downtime is not reflected in work book, and the length of service for sick pay is determined by the entries in the work book. In addition, the amounts paid for downtime are subject to insurance contributions to the Social Insurance Fund of the Russian Federation.

With regard to the length of service for the appointment of retirement pensions, downtime should be included in the total length of service as part of a more general period of work under an employment contract. In addition, the amounts paid for downtime are subject to insurance contributions to the Pension Fund of the Russian Federation.
With regard to early retirement pension, the situation is different here. According to clause 9 of the Rules for calculating periods of work, which gives the right to early assignment of old-age labor pensions in accordance with Articles 27 and 28 of the Federal Law "On labor pensions in Russian Federation»Are not included in the periods of work giving the right to early assignment of an old-age retirement pension, periods of inactivity (both through the fault of the employer and the fault of the employee).

In the Letter to the Federal tax service from 20.04.2009 N 3-6-03 / 109, it is clarified that the employer has the right to refer to expenses that reduce the tax base for income tax, the entire amount of payment for downtime, as economically justified expenses (Article 252 Tax Code RF). It was also explained in this letter (in relation to the previously levied unified social tax) that payments for downtime due to the fault of the employer and for reasons beyond the control of the employer and employee are subject to a unified social tax in accordance with paragraph 1 of Art. 236 of the Tax Code of the Russian Federation and insurance premiums in accordance with paragraph 2 of Article 10 Federal law dated 15.12.2001 No. 167-FZ "On compulsory pension insurance in the Russian Federation" in the generally established procedure.
If in labor (collective) agreements or internal regulations on remuneration in the organization, payment for downtime is provided in a larger amount than established in Art. 157 of the Labor Code of the Russian Federation, the excess amount is also subject to a unified social tax and insurance premiums.

An analysis of the current legislation on the payment of insurance premiums to extra-budgetary funds also allows us to conclude that the amounts of payment for downtime are subject to the specified insurance premiums.

The issuance of a downtime order is the basis for processing and paying for the time during which the employee cannot perform his direct duties. Without the issuance of such an order, the time spent by employees at the workplace is considered worked out and is payable in accordance with the employment contract. The Labor Code of the Russian Federation does not oblige to issue an order, but its presence greatly simplifies the work of a personnel officer and an accountant.

Mandatory clauses of the simple order - sample

How is downtime paid for by order?

Period forced downtime paid in accordance with the provisions of the 157th article of the Labor Code of the Russian Federation. The amount of compensation is influenced by its cause.

Through the fault of the employer. Payment for visiting a workplace without working out direct duties is at least 2/3 of the salary under the contract.
For reasons beyond the control of both parties. Payment is made in the same way as in the previous paragraph.
Through the fault of the employee. Not paid.

Features of drawing up an order for downtime at the enterprise

The order for downtime at the enterprise can be supplemented by other acts - the order of the accounting department, personnel service, to individual specialists who fell under the forced inaction.

It is allowed to publish one document containing separate items for each category of employees. In this case, all persons familiar with the document see instructions for other specialists.