Holidays in January in the shopping mall of the Russian Federation. If the vacation fell on a weekend or a holiday, how to count the vacation pay. Constitutional Court on payment for work on a day off

Consider situations when an employer can attract employees to work on weekends and holidays, the amount of additional payments for these days, depending on the remuneration system used at the enterprise, the specifics of paying a weekend or holiday to a posted employee and creative workers.

LABOR AND RECREATION

The employer has the right to independently establish the mode of work and rest, the system of remuneration in accordance with labor legislation, taking into account the peculiarities of the organization's activities, its needs for labor resources.

The general day off is Sunday. The second day off with a five-day working week is established by a collective agreement or internal labor regulations. As a rule, both days off are provided in a row.

In enterprises with a continuous cycle of work, where the suspension of work on weekends is impossible due to production, technical and organizational conditions, days off are granted on different days of the calendar week to each group of employees in turn in accordance with the internal labor regulations. In this case, the total accounting of working hours is most often carried out.

In addition to weekends, employees are provided with holidays. In accordance with Art. 112 of the Labor Code of the Russian Federation non-working holidays in the Russian Federation are:

FOR YOUR INFORMATION

If a day off and a non-working holiday coincide, the day off is transferred to the next working day after the holiday.

In accordance with Part 5 of Art. 112 of the Labor Code of the Russian Federation for the purpose of rational use of weekends and non-working holidays by employees, weekends can be postponed to other days in the next calendar year by a regulatory legal act of the Government of the Russian Federation. Information about their transfer is subject to official publication no later than a month before the onset of the corresponding calendar year.

CONDITIONS OF ATTRACTING TO WORK ON WEEKENDS AND HOLIDAYS

According to the general rule enshrined in Art. 113 of the Labor Code of the Russian Federation, work on weekends and holidays is prohibited. An exception is made in certain situations provided for by law.

The employer can engage employees to work on weekends and holidays only with the written consent of the employee. in the following cases:

the production and technological cycle in the organization is not interrupted;
the organization's specialists perform work caused by the need for constant continuous service to the population;
there was a need for urgent loading and unloading operations.

Sometimes it is not required to obtain an employee's consent to perform work duties on weekends. This is possible subject to the following conditions specified in Part 3 of Art. 113 of the Labor Code of the Russian Federation:

to prevent or eliminate the consequences of an industrial accident, natural disaster, catastrophe;
to prevent accidents, destruction and damage to property of enterprises;
to perform work, the need for which arose in connection with an emergency situation caused, among other things, by a natural disaster or martial law.

An exception is made for pregnant women. They cannot be involved in work on weekends and holidays (Article 259 of the Labor Code of the Russian Federation). It is forbidden to use on weekends and work of minors, with the exception of creative workers (Article 268 of the Labor Code of the Russian Federation). Artists under the age of 18 may be recruited to work at night and on weekends and holidays.

FOR YOUR INFORMATION

Night time is considered to be from 22:00 to 6:00.

Work on weekends by disabled people or women with children under three years old is possible with their written consent and in the absence of medical contraindications to work overtime.

Work on weekends and non-working holidays must be properly framed. Necessary:

obtain the employee's written consent to go to work during holidays or weekends;
to familiarize the employee, on receipt, with the terms of exit, including the right to refuse to work in his free personal time;
notify the trade union body (if any);
issue an order for overtime work. In the order, you must indicate the date and reason for going overtime, the duration of work, the list of persons involved.

NOTE

In the event of emergencies, going to work on weekends and holidays can also occur on the verbal order of the management (before the order is issued).

All additional conditions for going to work on weekends and holidays can be prescribed in the internal regulation on wages.

The form of the document confirming the receipt of the employee's consent to go to work during extra time is not legally approved. Each enterprise has the right to develop it independently. Let's imagine an example of this form:

Notification

dated 19.05.2017 No. 5

On the need to work on a day off

Dear Oleg Ivanovich!

Due to production needs (unloading perishable goods), we ask you to go to work on the weekend 05/20/2017 (from 9:00 to 13:00).

Work on the day off will be paid double in accordance with Art. 153 of the Labor Code of the Russian Federation.

At your request, you can get another day of rest at no extra charge.

Please make a note of consent or refusal to go to work.

Director of Ritm LLC Klimanov V. M. Klimanov

The flip side of the notice

I have read the notification.

I agree to go to work " 20 » May 2017 Nov.

Exit conditions: pay for work on the day off in double the amount .

Medical contraindications for work: I do not have .

Storekeeper Ivanov O. I. Ivanov 05/19/2017

PAYMENT FOR LABOR ON WEEKENDS AND NON-WORKING HOLIDAYS

Payment for labor on weekends and holidays is carried out in accordance with Art. 153 of the Labor Code of the Russian Federation. The amount and terms of payment are presented in table. 1.

Table 1. Amount and terms of remuneration on weekends and holidays
Labor remuneration system	Payment amount	Terms of payment
Official salary	The size of one official salary	If work on a weekend or holiday was carried out within the monthly norm of working hours
Official salary	Double salary	If the work was performed in excess of the monthly norm of working time
Time Pay	At least double the daily or hourly wage rate
Piece-work payment	Not less than double piece rates	In all cases when working on weekends and holidays

Labor legislation establishes minimum guarantees for wages on non-working holidays, which the employer can increase through contractual or local regulation. The employer has the right to establish specific amounts of remuneration for work on a weekend or holiday and prescribe them in a collective agreement, an internal local normative act, an employment contract. This is directly stated in Art. 153 of the Labor Code of the Russian Federation.

IT IS IMPORTANT

The amount of payment for work on a weekend or a non-working holiday prescribed in the collective agreement, local regulations of the company and the employment contract cannot be lower than those provided for by labor legislation and other regulatory legal acts containing labor law norms (Article 149 of the Labor Code of the Russian Federation).

At the request of an employee who worked on a weekend or a non-working holiday, he may be given another day of rest. If the employee demanded to provide time off, he must write a corresponding statement. In this case, work on a weekend or holiday is paid in a single amount, and the day of rest is not payable.

If the amount of remuneration on a non-working holiday is less than the amount of remuneration established by labor legislation, then the employee has the right to contact the State Labor Inspectorate... Based on the results of the inspection, the employer can be held administratively liable for violation of labor legislation. Officials face a fine in the amount of 1,000 to 5,000 rubles, legal entities - from 30,000 to 50,000 rubles. or administrative suspension of activities for up to 90 days (Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

For partial non-payment of wages for more than three months, criminal liability is provided (Article 145.1 of the Criminal Code of the Russian Federation). However, according to statistics, employees rarely turn to the State Labor Inspectorate with such complaints.

Payment for work on weekends and holidays to an employee on a salary

For employees who have a salary, wages in excess of the monthly rate are calculated based on the daily or hourly rate (in excess of the salary).

Daily rate is determined by dividing the employee's salary by the number of working days in a month according to the production calendar for which the salary is calculated.

For calculation hourly rate you can use two options.

Option 1: the employee's salary is divided by the number of working hours in a month according to the production calendar, for which the salary is calculated:

Hourly rate = Salary / Monthly standard for the production calendar.

Option 2: the employee's salary (monthly wage rate) is divided by the average monthly number of working hours:

Hourly rate = Salary / (Average annual standard / 12).

Average monthly working hours is the result of dividing the annual rate of time by 12.

The salary of the engineer OB Surikov is 60,000 rubles. For him, a 40-hour work week is set, weekends are Saturday and Sunday.

In fact, Surikov O.B. worked in May for 15 days, including one holiday: due to production needs, he worked on May 9. The working time in May 2017 is 20 days. Let's calculate the payment of Surikov O.B. for May 2017.

1. Let's determine the daily rate. To do this, we divide the employee's salary by the number of working days in May 2017 according to the production calendar:

RUB 60,000 / 20 days = RUB 3000

2. We will calculate the payment on a holiday.

Surikov O.B. worked on a holiday. At the same time, he did not exceed the working time standard (20 days) established for May 2017. This means that his payment on a holiday on May 9 will be equal to the daily rate of 3,000 rubles.

3. Let's calculate the payment for the rest of the time actually worked in May. We multiply the daily rate by the number of working days worked:

RUB 3000 × 14 days = 42,000 rubles.

4. Let's calculate the wages for May. O.B. Surikov's salary for May 2017 will be:

RUB 42,000 + 3000 rub. = RUB 45,000

E. V. Akimova, auditor

The material is published in part. You can read it in full in the magazine

1. Part 1 of Article 112 of the Labor Code of the Russian Federation establishes a list of public holidays on the territory of the Russian Federation.

In order to ensure that each employee has the opportunity to annually use, in addition to weekends, 12 non-working holidays, Part 2 of the commented article provides for a rule on the transfer of a day off that coincides with a holiday to the next working day after the holiday. This rule should also apply when the day off, which is due to the employee in accordance with the internal labor regulations, coincides with a non-working holiday. With such a coincidence, the day off for the employee will be the next working day after the holiday.

The transfer of days off that coincide with non-working holidays should also be carried out in organizations that use various modes of work and rest, in which work on holidays is not performed. This applies equally to the modes of operation with both permanent fixed weekends and "sliding" days of rest.

According to established practice, in cases where the work and rest regime provides for work on non-working holidays (in continuously operating organizations or associated with daily services to the population, round-the-clock duty, etc.), the rule on the transfer of days off does not apply (clarification of the Ministry of Labor of Russia dated 29 December 1992 N 65 "On some issues arising in connection with the postponement of days off coinciding with holidays" // BNA RF. 1993. N 3).

2. Part 3 of the commented article provides for the payment to employees, with the exception of those receiving a salary (official salary), additional remuneration for non-working holidays on which they were not involved in work. The amount and procedure for payment of the specified remuneration are determined by the collective agreement, agreements, local regulations adopted taking into account the opinion of the elected body of the primary trade union organization, labor contract. At the same time, it is specifically indicated that the amount of expenses for the payment of additional remuneration for non-working holidays refers to the cost of wages in full. Thus, the legislator not only established the payment of remuneration for non-working holidays, on which employees were not involved in work, but also provided an additional guarantee for such payment, having determined the source of funding.

3. An additional guarantee is also provided for employees receiving a salary (official salary). In accordance with part 4 of article 112 of the Labor Code of the Russian Federation, the presence of non-working holidays in a calendar month is not a reason for reducing their wages. In other words, for employees receiving a salary (official salary), wages in a calendar month are retained in full, regardless of the number of non-working holidays in that month.

4. Part 5 of Article 112 of the Labor Code of the Russian Federation grants the Government of the Russian Federation the right to postpone days off to other days, attaching them to the next non-working days, in order to rationalize the use of weekends and non-working holidays by employees. At the same time, it is specified that the regulatory legal act of the Government of the Russian Federation on the transfer of days off to other days in the next calendar year is subject to official publication no later than one month before the onset of the corresponding calendar year. The adoption of normative legal acts on the transfer of days off to other days during a calendar year is allowed subject to the official publication of these acts no later than 2 months before the calendar date of the established day off. This clarification allows both employees and employers to plan in advance the appropriate activities related to the organization of work and rest.

In cases where, in accordance with the decision of the Government of the Russian Federation, the day off is postponed to a working day, the duration of work on this day (former day off) must correspond to the length of the working day to which the day off is postponed (clarification of the Ministry of Labor of Russia dated February 25, 1994 N 4 , approved by the Decree of the Ministry of Labor of Russia dated February 25, 1994 N 19 // BNA RF. 1994. N 5).

All employees are provided with days off (weekly uninterrupted rest). With a five-day working week, employees are given two days off per week, with a six-day working week - one day off.

The general day off is Sunday. The second day off with a five-day working week is established by a collective agreement or internal labor regulations. As a rule, both days off are provided in a row.

For employers, whose suspension of work on weekends is impossible due to production, technical and organizational conditions, days off are provided on different days of the week to each group of employees in turn in accordance with the internal labor regulations.

Comments to Art. 111 of the Labor Code of the Russian Federation

1. The employer is obliged to provide all employees with compulsory weekly rest, the duration of which cannot be less than 42 hours (Article 110 of the Labor Code).

The general day off for both 5- and 6-day workweeks is Sunday. Due to the fact that both days off with a 5-day working week are usually provided in a row, the second day off in practice in accordance with the collective agreement or internal labor regulations is Saturday or Monday.

With the summarized accounting of working time (Article 104 of the Labor Code), days off are provided to employees in such a way as to ensure the standard of the duration of weekly uninterrupted rest (Article 110 of the Labor Code) on average for the accounting period.

2. With a 5-day working week, employees are provided with 2 days off every calendar week, except for those weeks when on one of the days off the shortfall to the standard working hours is compensated according to the schedule. This occurs when the sum of hours for 5 work shifts is less than the weekly norm. The defect is compensated for on one of two days off, which is declared a working day according to the schedule. Usually, the deficiency is repaid as it accumulates during the accounting period.

For all workers with both normal and reduced working hours, schedules must maintain an annual balance of working and nonworking hours.

The specific duration of weekly rest is determined by the type of work week and work schedule. With a 6-day work week, the duration of the weekly rest is within the established minimum.

With a 5-day work week, the weekly rest exceeds 42 hours, since the workers enjoy 2 days off. If, according to the terms of production, the provision of 2 days off in a row is impossible, then the second day off of the weekly rest is established in accordance with the shift schedules or the rules of the internal labor schedule.

3. If a day off and a non-working holiday coincide, the day off is automatically transferred to the next working day after the holiday (Article 112 of the Labor Code).

In connection with the numerous questions related to the duration of work on a day off, postponed due to a holiday to a working day, the Ministry of Labor of Russia explained: in cases where, in accordance with the decision of the Government of the Russian Federation, the day off is postponed to a working day, the duration of work on that day (former day off) must correspond to the duration of the working day, to which the day off was transferred (Resolution of the Ministry of Labor of Russia dated February 25, 1994 N 19 "On approval of the clarification" On the duration of work on a day off, postponed due to a holiday on a working day ").

4. Article 262 of the Labor Code provides for the right of one of the parents of children with disabilities to provide, upon his written application, 4 additional paid days off per month, which can be used by one of the named persons or shared by them at their discretion.

According to the clarification of the Ministry of Labor of Russia and the FSS of the Russian Federation of April 4, 2000 N 3 / 02-18 / 05-2256 "On the procedure for providing and paying additional days off per month to one of the working parents (guardian, trustee) to care for disabled children" 4 additional paid days off for caring for children with disabilities and invalids from childhood until they reach the age of 18 are provided in a calendar month to one of the working parents (guardian, trustee) at his request and are drawn up by an order (order) of the organization's administration on the basis of a certificate from the social protection of the population about the disability of a child, indicating that the child is not kept in a specialized children's institution (owned by any department) on full state support. The working parent also submits a certificate from the place of work of the other parent stating that at the time of the application, additional paid days off in the same calendar month were not used or partially used.

In cases where one of the working parents has partially used the specified additional paid days off in a calendar month, the other working parent is provided with the remaining additional paid days off for leaving in the same calendar month.

The summation of additional paid days off provided for the care of children with disabilities or invalids from childhood for 2 months. or more is not allowed.

Additional paid days off, not used in a calendar month by a working parent (guardian, trustee) due to illness, are provided to him in the same calendar month, subject to the end of temporary disability in the specified calendar month.

5. For the provision of additional days off for persons combining work with training, see Art. Art. 173, 174 TC and comments to them.

6. Women working in rural areas are given, at their request, 1 additional day off per month without pay (Article 262 of the Labor Code).

7. Workers on a business trip use weekly rest days at the location of the business trip, rather than upon returning from it, because they are subject to the working hours and rest hours of the organization that sent them. The exception is cases when, by order of the employer, the employee goes on a business trip on a day off; then, upon returning from it, he is given another day of rest.

In practice, this procedure is also applied in cases of going on a business trip by order of the employer on a public holiday.

8. In organizations where work cannot be interrupted due to the need to serve the population (shops, consumer services, theaters, museums, etc.), days off are established by local self-government bodies. With the summarized accounting of working time, the weekly rest time is also summed up and provided on average for the accounting period.

9. A monthly additional day off can be granted without pay by written application to one of the parents (guardian, trustee, foster parent) working in the Far North and equivalent areas with children under the age of 16.

Go back to

ST 112 of the Labor Code of the Russian Federation:

Non-working holidays in the Russian Federation are:

1, 2, 3, 4, 5, 6 and January 8- New Year's holidays;
Jan. 7- Nativity;
February 23- Defender of the Fatherland Day;
March 8- International Women's Day;
The 1 of May- Labour Day;
9th May- Victory Day;
12 June- Russia Day;
November 4th- Day of National Unity.

If a day off and a non-working holiday coincide, the day off is transferred to the next working day after the holiday, with the exception of weekends that coincide with the non-working holidays specified in paragraphs two and three of part one of this article. The Government of the Russian Federation transfers two days off from the number of days off that coincide with the non-working holidays specified in paragraphs two and three of part one of this article to other days in the next calendar year in the manner prescribed by part five of this article.

Employees, with the exception of employees who receive a salary (official salary), are paid additional remuneration for non-working holidays on which they were not involved in work. The amount and procedure for payment of the specified remuneration are determined, by agreements, by a local regulatory act, adopted taking into account the opinion of the elected body of the primary trade union organization. The amounts of expenses for the payment of additional remuneration for non-working holidays are related to the expenses for labor remuneration in full.

The presence of non-working holidays in a calendar month is not a reason for reducing employees receiving a salary (official salary).

For the purpose of rational use of weekends and non-working holidays by employees, weekends may be postponed to other days by federal law or a regulatory legal act of the Government of the Russian Federation. In this case, the regulatory legal act of the Government of the Russian Federation on the transfer of days off to other days in the next calendar year is subject to official publication no later than one month before the onset of the corresponding calendar year. The adoption of regulatory legal acts of the Government of the Russian Federation on the transfer of days off to other days during a calendar year is allowed subject to the official publication of these acts no later than two months before the calendar date of the established day off.

Commentary on Article 112 of the Labor Code of the Russian Federation:

The commented article contains a list of non-working holidays that apply to the entire territory of the Russian Federation.

Subjects of the Russian Federation can establish other public holidays on their territory, taking into account the national and cultural characteristics of the region. One of these holidays is January 7 - Christmas. Its consolidation as a holiday throughout the country may be perceived by some as an infringement of the religious feelings of believers of other confessions, therefore, the republics that are part of the Russian Federation may declare religious holidays of other confessions a non-working day. This is fully consistent with Art. 28 of the Constitution of the Russian Federation, which guarantees every citizen freedom of religion.

In addition to the generally established non-working holidays, there are professional holidays (Metallurgist's Day, Teacher's Day, Builder's Day, etc.), which are timed to coincide with weekends according to the calendar. If such holidays fall on weekdays, then release from work in practice is carried out on the basis of a collective agreement, an order (order) of the administration of the enterprise.

If a day off and a non-working holiday coincide, the day off is transferred to the next working day after the holiday. On non-working holidays, work is allowed, the suspension of which is impossible due to production and technical conditions (continuously operating organizations or work due to the need to service the population, as well as in connection with urgent repair and loading and unloading operations).

For the purpose of rational use of weekends and non-working holidays by employees, the Government of the Russian Federation has the right to postpone days off to other days.

In cases where the day off is transferred to a working day, the duration of work on this day must correspond to the length of the working day to which the day off is transferred (see the Procedure for calculating the rate for certain calendar periods (month, quarter, year), depending on the established duration working hours per week, approved by Order of the Ministry of Health and Social Development of Russia N 588n<1>).

Part 3 of the commented article corresponds to the International Covenant on Economic, Social and Cultural Rights<1>, to which the states parties to the Covenant recognize the right of everyone to just favorable conditions of work. These conditions include rest, leisure, reasonable restrictions on working hours and paid periodic leave, as well as remuneration for work on holidays (paragraph "d" of article 7 of the Covenant). Remuneration for work on public holidays is also stipulated in the European Social Charter (revised) adopted in Strasbourg. 2, article 2, part II of the Charter).

Part 4 of the commented article establishes the norm, which provides that non-working holidays should not affect the wages of an employee receiving a salary (official salary). Unfortunately, this provision, which is a guarantee for this category of workers, does not include such guarantees for workers whose work is paid in other forms. It seems that in relation to employees who are not paid in the form of a salary, these issues should be settled by a collective agreement or by direct agreement between the employee and the employer.

New edition of Art. 112 of the Labor Code of the Russian Federation

Non-working holidays in the Russian Federation are:

Employees, with the exception of employees who receive a salary (official salary), are paid additional remuneration for non-working holidays on which they were not involved in work. The amount and procedure for payment of the specified remuneration are determined by the collective agreement, agreements, local regulations adopted taking into account the opinion of the elected body of the primary trade union organization, labor contract. The amounts of expenses for the payment of additional remuneration for non-working holidays are related to the expenses for labor remuneration in full.

The presence of non-working holidays in a calendar month is not a reason for reducing the wages of employees receiving a salary (official salary).

Commentary on Article 112 of the Labor Code of the Russian Federation

Article 112 of the Labor Code of the Russian Federation contains a list of non-working holidays.

Another commentary on Art. 112 of the Labor Code of the Russian Federation

1. Part 1 of Art. 112 of the Labor Code of the Russian Federation establishes all-Russian non-working holidays. Taking into account the delineation of powers between federal bodies of state power and bodies of state power of the constituent entities of the Russian Federation in the field of labor relations and other relations directly related to them, the constituent entities of the Federation have the right to establish additional non-working holidays in addition to those established by Part 1 of Art. 112 of the Labor Code of the Russian Federation. This is of particular importance in a multinational and multi-confessional state such as the Russian Federation. Replacing individual non-working holidays stipulated by federal law for other days would contradict the Labor Code of the Russian Federation (see article 6 of the Labor Code of the Russian Federation and a commentary to it).

2. In accordance with Part 3 and 4 of Art. 112 of the Labor Code of the Russian Federation, non-working holidays are subject to payment. Employees whose remuneration system provides for a monthly salary (official salary), if there are non-working holidays in the calendar month, the amount of wages for that month is not reduced. Under other systems of remuneration (piece-rate, time-based, time-bonus, remuneration on a commission basis, etc.), additional remuneration is paid to them for non-working holidays, on which employees were not involved in work. Its size and procedure for payment are determined by the collective agreement, agreements, local regulations adopted by the employer, taking into account the opinion of the elected body of the primary trade union organization, labor contract.