Many workers mistakenly believe that if they are constantly late at work, and their working day does not have a clear schedule, then it can be called irregular. In terms of meaning, it is possible, but according to the law it will be considered as such if an appropriate entry is made in the employee's employment contract, and along with it additional social guarantees, due to employees with an official irregular day. Let's figure out what it means, according to the Labor Code of the Russian Federation, an irregular worker in 2019. Changes and fresh news later in the article.

Flexible working hours, overtime work, as well as trivial overwork at the behest or whim of the employer have little to do with irregular working hours. In accordance with Art. 101 of the Labor Code of the Russian Federation, which contains the corresponding concept, irregular working hours are a special mode of work, when an employee stays to work after working day not constantly, as is often practiced at Russian enterprises, but occasionally at the verbal command of the employer. Not any employee can be left “after work”, but only the one who holds a position that, in accordance with the collective agreement or other normative act of the employer, is included in the list of positions with irregular working hours.

Flexible hours, irregular days, overtime - what's the difference?

As mentioned above, many people mistakenly take flexible hours for irregular working hours, when the established labor contract work time the employee works out without a fixed start and finish of the working day, which are determined by mutual agreement (article 102 of the Labor Code of the Russian Federation). However, these are completely different things. Unlike a flexible work schedule, which is also fixed in an employment contract or an additional agreement to it, irregular working hours have clear boundaries. If the TD says that the employee must start work at 10:00, then he cannot come to work at 12:00, since he has a position with irregular working hours. He is obliged to come at 10:00, otherwise he runs the risk of receiving a disciplinary penalty: a remark or reprimand from his superiors (Article 192 of the Labor Code of the Russian Federation). And for being late for 4 hours or more, you can be fired altogether.

Thus, irregular working hours, as opposed to flexible hours, have clear boundaries, but they can be "extended" at the verbal request of the employer. Such requests may be ad hoc. The employee's consent to work in excess of the normal working hours is not required, as well as additional payment.

The difference between the irregular working day and the overtime work... Let's consider the difference in more detail.
Irregular working hours:

• does not require the consent of the person to engage him in work outside of working hours;
• not formalized by order (a verbal instruction from the superiors is enough);
• payment for irregular working hours is not due;
• the number of occasional appearances "after work" is not regulated;
• employees are entitled to leave for irregular working hours - the Labor Code of the Russian Federation (Article 119) establishes guarantees in the form of at least three additional vacation days. Naturally paid. In labor or collective agreement more may be prescribed. The days are obliged to provide even if the employer has not used its right to occasionally involve an employee in labor duties at inopportune hours during the year.

Overtime in 2019:

• requires the mandatory consent of the employee, except in emergency cases;
• drawn up by a written order of the employer;
• the duration of overtime work cannot exceed 4 hours during 2 consecutive days and 120 hours per year;
• paid not less than one and a half amount for the first 2 hours and not less than
• twice for the next hours;
• additional leave not allowed.

As you can see from the comparison, for vacation extra days they are entitled to irregular working hours, but not to work overtime. The opposite situation is with additional payment, which is made only for overtime work.

How is irregular working day formalized in 2019?

If an employee periodically performs work duties outside the established working hours, then this should be reflected in his employment contract (Article 100 of the Labor Code of the Russian Federation). Corresponding notes are also made in the internal regulations of the company, where the provision on irregular working hours should be issued. An employee whose work duties extend over a standard 8-hour working day or 10-12 hour work shift should not neglect the formalization of an irregular day. After all, in addition to the praise of the bosses, it also guarantees the employee an additional vacation for an irregular working day. This should also be written in the agreement with the employee.

How many hours can you recycle?

Often lawyers are asked the question: "Irregular working day - how many hours?" Labor Code does not regulate the regime of irregular working hours by hours and does not decipher how many hours in total the employer can involve an employee in irregular work. However, if the employer is too zealous in his right to involve the employee in performing duties outside the normal working hours (does this not occasionally, but on an ongoing basis), then this can be considered overtime work and "knock out" the due compensation. To do this, you will have to contact the state labor inspection and the court. There are such cases in judicial practice.

We hope that after reading this article about irregular working hours: "What does this mean?" - you won't ask.

President of the Russian Federation V.V. Putin, Prime Minister of the Russian Federation D.A. Medvedev, President of the Russian Academy of Sciences V.E. Fortov, Prosecutor General of the Russian Federation, Chaika Yu.Ya.

irregular working hours, additional leave at the ICKG SB RAS

I have worked for many years at the SB RAS, including the Institute of Chemical Kinetics and Combustion of the Siberian Branch of the Russian Academy of Sciences, for about eight years as an engineer and research associate. During the entire period of time, I allocated time for work at my own discretion. In this case, the labor legislation of the Russian Federation provides for irregular working hours.

In accordance with the Decree of the People's Commissariat of Labor of the USSR of February 13, 1928, No. 106 "On workers with irregular working hours":

1. Irregular working hours in institutions, enterprises and farms can be applied: a) for persons of administrative, managerial, technical and economic personnel; b) for persons whose work cannot be tracked in time (consultants, instructors, agents, etc.); c) for persons who allocate time for work at their own discretion; d) for persons whose working time, by the nature of the work, is divided into parts of an indefinite duration. 2. Lists of professions, positions and jobs for which the use of irregular working hours is allowed are developed by the relevant trade union and economic body and are included in the collective agreement. 3. Application of irregular working hours in government institutions with normalized wages allowed in relation to employees holding positions listed in special lists. 4. Labor contracts or collective agreements, or the Internal Regulations must list all the main responsibilities that make up the amount of work of persons assigned to irregular working hours in accordance with Art. 2. In accordance with article 101. "Irregular working day" of the Labor Code of the Russian Federation: Irregular working day - a special mode of work, according to which individual employees can, by order of the employer, if necessary, occasionally be involved in the performance of their labor functions outside the established duration of the working time. The list of positions of employees with irregular working hours is established by a collective agreement, agreements or a local normative act, adopted taking into account the opinion of the representative body of employees. However, there is no information about work in the regime of irregular working hours, neither in labor contracts with employees, nor in a collective agreement, nor in the Internal Regulations. During the entire period of work, my annual paid leave was 28 calendar days... While, in accordance with article 119. "Annual additional paid leave for employees with irregular working hours": Employees with irregular working hours are granted an annual additional paid leave, the duration of which is determined by the collective agreement or internal labor regulations and which cannot be less than three calendar days... The procedure and conditions for the provision of annual additional paid leave to employees with irregular working hours in organizations funded from federal budget, established by the Government Russian Federation, in organizations financed from the budget of the constituent entity of the Russian Federation - by the authorities of the constituent entity of the Russian Federation, and in organizations financed from the local budget - by local authorities.

Previously, I held the same positions at the Institute of Catalysis of the SB RAS and the Institute of Inorganic Chemistry of the SB RAS, where irregular working hours were documented. RAS has general rules(), in accordance with which, irregular working hours are established and the provision of additional paid leave.

On September 24, 2011, I submitted a corresponding statement on violations of labor legislation in State inspection labor in the Novosibirsk region. I was answered by the labor inspector Morozova M.M., then., By the head of the GIT NO Toder V.A., the head of the Rostrud Directorate I.A. and there are no orders to involve me in work outside of working hours. On June 03, 2012, I filed a complaint with the Federal Labor Inspectorate, but an answer on the merits has not yet been given. My appeals to the management of the RAS and the SB RAS were also ignored.

When I applied to the Prosecutor's Office of the Novosibirsk Region, I was also repeatedly given answers that the actions of the employer were legitimate.

Despite the fact that in accordance with paragraph 6 of Article 8. "Sending and registration of a written request" of the Federal Law of May 2, 2006 No. 59-FZ "On the Procedure for Considering Applications of Citizens of the Russian Federation":

It is forbidden to send a complaint for consideration to government agency, local government or official, the decision or action (inaction) of which is being appealed.

My appeal was forwarded to the Prosecutor's Office of the Novosibirsk Region, whose actions I will appeal against.

I disagree with these answers, since the presence of orders to attract workers to work outside of working hours is mandatory for overtime work. Persons who allocate time for work at their own discretion have irregular working hours, even if they are not involved in work outside of the working day. Irregular working hours for researchers and other workers are stipulated by the departmental regulations of the Russian Academy of Sciences. The absence of such a mode of operation at the ICKG SB RAS is a systematic violation of the workers' rights by the administration of the ICKG SB RAS.

LIST OF OFFICES

workers with irregular working hours,

RAS order 39-1663 of 05/19/94

Heads (chiefs, directors) of the Institute, Departments (Centers) and their deputies.

Heads (heads, directors) of departments, sectors, offices, services, groups, bureaus, editorial offices, laboratories, workshops, workshops, garages, sites, warehouses, archives, farms and their deputies (assistants and their acting).

Scientific secretaries of the institute, departments and their deputies and their duties. Leading and senior consultants, consultants. Engineers, designers, power engineers, mechanics, economists, electronics, programmers, artists, technologists of all categories (leading, main, first, second and third categories).

Researchers of all categories (hns, vns, sns, ns, mns). Research fellows.

Chief and leading accountants, their deputies and their acting. Accountants of all categories. Senior cashiers, cashiers.

Technicians, craftsmen, mechanical engineers of all categories.

Senior laboratory assistants and laboratory assistants. Senior research laboratory assistants and research laboratory assistants.

Assistants, assistants to the heads of the institute, departments, departments and services. General Counsel, Legal Counsel.

Senior inspectors. Senior instructors and instructors.

Chiefs of the fire and watch guard. Chiefs of the guard and fire brigade assistants.

Secretaries-typists. Editorial secretaries.

Senior dispatchers, dispatchers. Senior timekeepers, timekeepers. Normalizers.

I believe that this appeal should be considered by the General Prosecutor's Office of the Russian Federation.

In connection with the existing violations, I ask you to oblige the employer:

1. pay for unused additional paid leave for the entire period of work at the rate of 7 calendar days per year;

2. draw up a list of positions of employees of the ICKG SB RAS with irregular working hours, in accordance with by order of the RAS 39-1663 of 05/19/94;

3. to bring the perpetrators to justice.

Kaletina Margarita Vladimirovna

17.10.2013 (05:52:53)

Per!	Against!

IRREGULAR WORKING DAY

DZUGKOEVA Zarina Vadimovna,

Postgraduate student of the Department of Labor Law and Social Security Law of the Moscow State Law Academy named after V.I. O.E. Kutafina (Moscow State Law Academy)

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 revealed, proposals are made to improve the current labor legislation in this area: determining the limits of the duration of time and compensations, as well as the circle of persons for whom irregular working hours 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 concept as "unlimited workday", reveals conflicts in legal regulations of such order, and makes suggestions on improvement of actual labor law in mentioned sphere: definition and compensations, and also circle of persons to whom unlimited workday shouldn " t to provide.

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

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

Irregular working day is a special mode of work, according to which individual employees can, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the established working hours. 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 (Article 101 of the Labor Code of the Russian Federation) 1.

We believe that the term "irregular working day" used by the legislator is not correct enough, since "irregularity" as such does not relate to the working day as a whole (it is standardized, that is, the established duration), but to work outside the established working day , which, within the meaning of the law, must also be standardized and taken into account. In addition, in Art. 101 of the Labor Code of the Russian Federation speaks only of 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 norm of working time that differs from a normal or shortened working day, and from this point of view cannot be put in line with them.2

Historically, the main criterion for irregular working hours has been the increase in the volume of work. So, for example, N.G. Aleksandrov defined “irregular working hours as a day that is not limited in time, but limited by the amount of work” 3. E.A. Panova considers an irregular working day as unlimited by a firmly established number of hours, but determined by the amount of work. Labor law"Define irregular working hours as" a type of working day of workers whose work, by the nature of their activities, cannot be limited to 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

guidance. Minsk: Publishing house of the Academy of Sciences of the BSSR, 1963.157 p.

3 Alexandrov N.G. Soviet labor law. Gosyurizdat, 1952, pp. 203-204.

4 Panova E. A. Legal regulation of labor in state farms. M., Gosyurizdat, 1960.S. 56.

5 Labor law: Encyclopedic dictionary. Moscow: BSE, 1959.S. 246.

for the criterion for defining the concept of irregular working hours, the volume of work or the scope of duties, the authors underestimate the importance of working time as essential element measures of labor.

In Art. 101 of the Labor Code of the Russian Federation means the mode of work that characterizes the temporary component of the employee's work. This is also evidenced by the titles of the section and chapter of the Code - "Working hours" and "Working hours".

1) irregular working hours are a special work schedule;

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

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

4) irregular working hours are applied only when necessary;

5) employees may be involved in work on irregular working hours on an ad hoc basis (i.e. from case to case, and not systematically);

6) irregular working hours means going beyond the normal working hours;

7) in conditions of irregular working hours, the employee must perform not additional work, but his own labor functions.

Thus, in relation to an irregular working day, the qualifying feature of a special mode of work is its difference in any of the above parameters from the generally established mode of work in the organization. Moreover, in accordance with the content of the criterion specified in paragraph 6, such a difference should be upward from the norm. Such an explanation seems necessary due to the fact that both part-time and part-time work weeks, and hourly payment are also features of the working hours, however

these provisions in this case do not act as qualifying.

In the literature, an opinion was expressed about the need to establish an extended working day for persons whose overworking is of a permanent nature.6 In our opinion, this point of view does not agree with the position of the legislator. The irregular working day only allows for possible processing, and does not imply a permanent processing. 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 working time regime, to establish a summarized accounting of working hours.

The definition and content of the notion of a work schedule causes lively controversy among scholars of labor law.7 Thus, the absence of a fixed length of irregular working day gives reason to consider it as an evaluative 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 meaning of irregular working hours 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 rational use working time: Author. diss. ... for a job. Cand. jurid. sciences. Kharkov, 1984.15 th .; Voevodenko N.K. Improvement of labor legislation on workers with irregular working hours // Problems of State and Law. Proceedings of scientific workers and graduate students. M., 1974, Issue. 9, pp. 199-208, etc.

7 Protsevsky A.I. Working hours and working day according to Soviet labor law. Moscow: Gosyurizdat, 1963.182 f .; Muksinova L.A. Working day and working week according to Soviet labor law: Author's abstract. diss. ... for a job. Cand. jurid. sciences. M., 1962.16 th .; Muksinova L.A. Problems of working time regulation in the USSR. M .: Jurid. liter, 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, includes 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 not in full size.

An employee who works on irregular working hours is currently involved in work outside the established working hours (in fact, overtime work) in a simplified manner without clear regulation of concepts such as “if necessary” and “occasionally” (for comparison : the procedure for engaging in overtime work is established by Art. 99 of the Labor Code of the Russian Federation), does not receive payment for his work in violation of Art. 37 of the Constitution of the Russian Federation, art. 21 and Art. 22 of the Labor Code of the Russian Federation, and for refusing to work outside the established working hours for him, he can be brought to disciplinary responsibility in accordance with Ch. 30 of the Labor Code of the Russian Federation. Moreover, 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 restrictions on overtime work established by Art. 99 of the Labor Code of the Russian Federation. The consequence of the increase in the actual duration of working hours is a decrease in the time of rest, during which the employee is free from the performance of labor duties and which he can use at his own discretion, which does not correspond, in particular, to 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.

Irregular working hours(NSD) is a special mode of work, according to which an employee, by order of the employer, can occasionally be involved in the performance of his labor duties outside of normal working hours.

Irregular working hours are considered in the legislation as an alternative to the 8-hour working day.

It is up to management to decide whether employees need to be on site for the usual number of hours to complete the entire work, or if they need additional time for individual tasks.

If the need for this nevertheless arises, an irregular day is introduced locally for specific employees.

Irregular working hours and the Labor Code of the Russian Federation

The standard working time is perceived as five days with an 8-hour working day. This is the norm in effect in the overwhelming majority of enterprises and organizations, both public and private. But there is another mode of work - irregular working hours (Article 101 of the Labor Code of the Russian Federation).

Irregular working hours according to the Labor Code of the Russian Federation means a mode of work in which an employee can be employed in excess of the standard working day established for all employees (Article 101 of the Labor Code of the Russian Federation).

Irregular working hours are not introduced for the entire enterprise, but only for some people who simply need to work beyond the plan. It turns out that in the whole company there is, for example, a standard five-day week with the beginning of work at 9 in the morning, and individuals work irregular working hours. Their job is to show up for work, say at 6:00 am or leave the office after 10:00 pm.

For many, irregular working hours are closely intertwined with the concepts of overtime and overtime. But at the legislative level, they are separate. Irregular working hours are separate mode work that allows the employer to employ specific workers outside of their regular schedule.

The main features of irregular working hours

The main features of this work regime are as follows:

NSD should be established for a specific employee, and the possibility of its establishment should be fixed in advance in the company's internal regulations;

when establishing an NSD, this should be fixed in the employment contracts for each employee involved;

involvement in work beyond normal working hours should be of an episodic nature and should be due to production needs;

the types of work performed in extra time should only be the same as those performed in the usual mode and are provided for by an employment contract, job description and other similar documents;

working extra time for employees in NSD mode on weekdays is not considered overtime work;

The establishment of the NSD has restrictions provided for by law in relation to persons who are provided with additional social and state support:

✓ minors;

✓ pregnant women;

✓ disabled people;

✓ single parents of small children.

How many hours per week and year can you work

In Russia, a work week of 40 hours is considered the norm (Article 91 of the Labor Code of the Russian Federation). If we are talking about a five-day week, and this is how they work at most enterprises, then the employee has to work 8 hours daily.

But the employer is entitled to increase these rates. This increase is of two types:

engaging in overtime;

stretching the schedule within an irregular working day.

The law introduced a restrictive framework for overtime work: it is impossible that such overtime should exceed 120 hours per year. At the same time, it is prohibited to involve an employee in overtime work for more than 4 hours for two consecutive days.

But in relation to irregular working hours, there are no clear time limits in the law. There are only requirements that are not expressed in a specific hourly equivalent. The regime of irregular working hours should be of an episodic nature, that is, there can be no question of any system.

In addition, the employer should really need the employee to fulfill his direct duties during the irregular working day.

Therefore, you must comply with the following requirements:

TO additional work under NSD, you can attract both before and after the official working day.

The instruction to stay late (or appear earlier) can be issued in any form, including oral, and the employee's separate consent is not required.

The time spent on overworking under NSD is not limited in any way, the employee works as many hours as it takes to complete the assigned task. The only condition: processing should not be everyday for a long time.

The procedure for establishing a non-standard operating mode

Establishing for some categories of NSD employees includes several mandatory stages:

A list of positions at the enterprise is being developed and approved for which NSD is supposed to be.

A draft of the internal normative act on the establishment of NSD for the categories of employees included in the list.

If the enterprise has a representative body of employees, the draft local act must be submitted to it for approval. The procedure is provided for in Art. 8 and 372 of the Labor Code of the Russian Federation.

The draft normative act agreed with the interested parties is approved and becomes the internal order of the organization. All employees must be familiarized with it against signature.

For already working employees, when they establish NSD, they make additional agreements to labor contracts. For newly accepted NSDs, the established NSD is immediately included in the contract, job description and acceptance order. Also, the new regulation is reflected in the collective agreement of the enterprise with employees.

Irregular working hours - what an employee needs to know

An employee who has agreed to an irregular working day schedule needs to know the following:

The employer will not ask the employee's consent every time to work irregular working hours. Such consent is obtained on a one-time basis and is most often reflected in the employment contract.

Refusal to work an irregular working day can be equated to refusal to fulfill one's labor duties. Although the courts have not yet developed a unified practice of resolving labor conflicts on this issue.

At the same time, you need to understand that such a schedule is unacceptable every day. Irregular working hours are an episodic phenomenon in daily activities.

Even though this working time regime is called irregular working hours, this does not mean that there should not be any restrictions on its duration. The local act and the employment contract must describe the time frame of the working day and week.

Irregularity lies in the difference between the schedule and the generally accepted one in the company.

A person who is called upon to work irregular working hours must understand that this is impossible on a permanent basis. The employee is obliged to come and go with the rest of the employees and only when there is a special need to work after hours.

Irregular working hours cannot serve as a reason for performance additional responsibilities not prescribed in job description... The working time is increasing, not the list of responsibilities.

Irregular working hours give the employee in the form of at least 3 vacation days that are paid by the company. These days can be attached to annual leave... Also, instead of vacation, you can receive monetary compensation. The same rules apply as for annual paid leave. It may simply not be possible to pay extra money for an irregular working day, if the management does not order it.

What does irregular working hours mean for an employer

The boss, who has a need to establish irregular working hours for his employees, must arrange everything in advance.

To begin with, it is necessary to reflect the very possibility of attracting people to work within an irregular working day in an agreement between the team. In it, you also need to indicate a list of positions for which an irregular working day is required.

Then you need to conclude with each employee who holds a position from this list, an agreement on the introduction of irregular working hours, and in writing.

Verbal agreements are not suitable in this case.

The easiest way is to initially prescribe this in the employment contract, and if it has already been agreed upon, you will have to correct it by adding a clause on irregular working hours.

The employer must understand that he has no right to force an employee to work irregular working hours every day or even every other day, since this regime is strictly episodic.

At the same time, during the time worked by the employee in excess of the norm, one cannot force him to take on additional functions. A non-standard working day is used only for the performance of the employee's direct duties.

List of positions of employees with irregular working hours

The circle of persons who can work irregular working hours is established almost arbitrarily at the local level. There is no single list of positions with irregular working hours in the legislation. In practice, the following positions are included in the list of positions:

Leading link. For instance, .

Maintenance personnel.

Housekeeping staff.

Employees whose time spent at work is unaccountable. For example, a realtor may show real estate properties to buyers during irregular working hours.

Employees who have an obligation to work for a certain time, but the period when this must be done is not specified. These include persons creative professions, for which irregular working hours are quite the norm.

According to statistics, top the list of such positions and professions:

senior management representatives;

employees whose work schedule is related to the work of management: assistants, secretaries, clerks, personal drivers, translators;

heads of accounting and financial services;

heads of departments with an atypical work schedule (for example, a warehouse or a department of equipment adjusters);

technicians and adjusters;

technologists (especially in production with a continuous cycle);

logisticians and dispatchers;

workers in charge of safety and security.

Features of the use of irregular working hours for the employer

The NSD regime contains a number of obvious advantages for an employer:

1. Work in excess of the norm under NWD is not considered overtime. This means, among other things:

there is no need to register every employee's delay at work as required by Art. 99 TC, - with a separate order for each case, written consent of the employee, etc .;

there is no need to pay for processing at increased rates according to the norms of Art. 152 TC.

Irregular working hours: details for the accountant

• We establish irregular working hours

  Further. Signs of irregular working hours Irregular working hours are a special mode of work, in ... her overtime. Who can get irregular working hours? The list of positions of employees with irregular ... federal state institutions (hereinafter referred to as the Rules), irregular working hours are also provided to employees: whose work ... provides for the provision of additional leave for irregular working days in proportion to the worked in the working year ...

• Irregular working hours

  Refusing to the employee, indicated that irregular working hours presupposes work outside the established ... to establish irregular working hours? The employer independently determines the list of positions of employees for whom irregular working hours are established. ... replaced by monetary compensation. We set an irregular working day If the position for which he is employed ... Accounting for overwork If an employee is assigned an irregular working day, then work in excess of the established ...

• Features of the operating mode with irregular working days

  There is an opinion that it is impossible to establish irregular working hours for employees who have a reduced working day ... harmful conditions labor. Accordingly, irregular working hours can be established for such employees, only ... it is provided for the provision of additional leave for irregular working hours in proportion to the worked in the working year ... is not a violation. Irregular working hours and overtime work Although both irregular working hours and overtime ...

• Attention: amendments to the Labor Code!

  101 "Irregular working day" of the Labor Code of the Russian Federation. In part 1 of this article, irregular working hours are defined as ... RF). In what order is an irregular working day established if the employee works on the terms ... of the Labor Code of the Russian Federation: in this case, an irregular working day can be established only if by agreement ... on a part-time basis, an irregular working day can be established only if by agreement. ..

• On the main changes in the Labor Code

  ... (exhibiting) works). Irregular working hours. According to Art. 101 of the Labor Code of the Russian Federation irregular working hours - a special mode of work ... part-time work, it is possible to establish irregular working hours, provided that it is established ... on a part-time basis, irregular working days can be established for an employee only if ...

• Changes to the Labor Code

  The need to take into account the wishes of the employee. Irregular working hours. This mode of operation also ... imagines the attention of legislators. Let us remind you that irregular working hours are a special mode of work, in ... this article it was impossible to establish irregular working hours. Then, after amending, ... contained provisions prohibiting the establishment of irregular working hours for persons who work ... on a part-time basis, irregular working hours may be established only if ...

  Break time). 2. Irregular working hours Article 101 of the Labor Code of the Russian Federation ... on a part-time basis. Irregular working hours by agreement of the parties employment contract... for 8 hours, then irregular working hours can be set. And if at ...

• Employers on current legislative changes

  Of the given employer. Irregular working hours. By virtue of Art. 101 of the Labor Code of the Russian Federation, irregular working hours are a special ... new edition there is one limitation: irregular working hours can be established for these employees, only ... working hours can be set irregular working hours, provided that the employee is assigned ...

• Features of irregular working hours

  Disciplinary action legal, indicated that irregular working hours presupposes work outside the established ... No. 3. Question: Is it possible to establish irregular working hours for a person performing work on conditions ... that this employee an irregular working day will be necessary, before the newcomer's employment contract is concluded ... to the fact that it is possible to confuse irregular working hours with overtime work, and if ...

• Additional paid leave for health workers

  Therapeutic and pediatric territorial areas. Irregular working hours. In accordance with the norms of art ...

"Personnel 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 conceal overtime overtime and deprive workers of fair working conditions. The author discusses how to rectify the situation.

Legal assessment and general characteristics of concepts

The concept of irregular working hours was first formulated in labor legislation as a rule of law with the adoption of the Labor Code of the Russian Federation in 2002. This is undoubtedly a positive fact. At the same time, the legal norm set forth 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, irregular working hours is a special mode of work, according to which individual employees can, by order of the employer, if necessary, occasionally be 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 did not indicate the assessment 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 irregular working hours. There is no explanation of what "episodicity" means in relation to irregular working hours. Is a written order of the employer obligatory for irregular working hours (order) or is it quite oral? And such a wording in the article of the law as "may be involved" even causes concern. The fear stems from the fact that the word "to attract" in Russian means "to force". It is no coincidence that people talk about engaging in labor in prisons and at labor therapy enterprises for mentally ill people.

The law defined irregular working hours, guided by the concept of overtime. Let's pay attention to the fact that in Art. Art. 101 and 99 of the Labor Code of the Russian Federation in the wording of legal definitions contains the same expression: "... by order of the employer outside the established normal working hours for the employee." According to Art. 99 of the Labor Code of the Russian Federation, this expression is a legal definition of overtime work. Overtime - i.e. outside the working day established for the employee. But overtime work has the status of working time. She found her place in chap. 15 of the Labor Code of the Russian Federation, while an irregular working day is a mode, an order of work. 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 work in hours and thus provides the employee with the opportunity to exercise his right to rest. And modes represent a way for an employee to perform his job function. Labor regimes can be compared with technical means that allow you to implement different options for the working day and working week within one type of working time. With the help of work regimes, it is possible to establish the characteristics of breaks for rest and food. Working hours and work regimes have different goals, they solve their specific tasks in the process of organizing the work of workers. It is unacceptable to mix and replace them with each other.

Despite this, overtime work and irregular working hours are being 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 the additional leave, which was supposed to compensate for irregular work, with an 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 processing hours in excess of the duration of working hours established by law, and Art. 101 of the Labor Code of the Russian Federation - illegal qualification of the same process. Legal qualifications apply to the bulk of employees, i.e. there is overtime for them. And illegal qualifications are for certain categories of workers. For them, the same processing of working time was called "irregular working day". As a result, there was a rule: what more workers to include in the list of persons with irregular working hours, the less difficulties, since there is no need to arrange overtime every time.

There is a first success in distinguishing between irregular working hours and overtime work. A success can be considered the fact that the Federal Law of 30.06.2006 N 90-FZ "On Amendments and Additions to the Labor Code of the Russian Federation ..." excludes the possibility of paying for irregular working hours. Until the entry into force of this Law, the Labor Code of the Russian Federation erroneously suggested paying for irregular working hours according to the norms provided for overtime work.

Thus, in Federal law found support for the idea of ​​distinguishing between irregular working hours and overtime work. On this basis, a further need arose in the study of irregular working hours 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 name "Irregular working day" deprives individual workers of the right to good rest. This happens every time, when, by the "order" of the employer, specialists are "involved" in work in the regime of 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 standard working hours. But by the beginning of the next working day, these workers are required to appear without delay, regardless of the amount of time worked the day before. According to the internal labor regulations, without any exceptions. Under these circumstances, use daily rest in established by law order and size fails.

For comparison: overtime work under Art. 99 of the Labor Code of the Russian Federation, no more than 4 hours are allowed within two days in a row and 120 hours per 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 he worked overtime.

The arguments that these workers deliberately signed an employment contract for working 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 legal regulation labor relations recorded 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 contradict the basic principles of regulating labor relations cannot be called lawful, and they cannot operate, even if signed by two parties.

Both in the case of overtime work, and in the case of using irregular working hours, we are talking about working in conditions that deviate from normal. As a deviation from the norm, overtime work is carried out according to general rule, With written consent employee. And for the current "attraction" to irregular working hours, the law does not require obtaining 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 employer's order, he may be subject to disciplinary action... This position of the employee is assessed as forced labor, i.e. performing work under threat of any kind of punishment. Based on principles and norms international law, in accordance with the Constitution of the Russian Federation, according to 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, it is oriented arbitrage practice.

Example. So, the chief technologist of the brewery I. Sergeeva was reprimanded with the deprivation of the bonus for being late for work by 30 minutes. The employee applied to the court with a request to collect bonuses in her favor. She explained that, by order of the director, she was delayed after work, because she had an irregular working day. Completed the director's production assignment by three o'clock in the morning. Taking into account the time spent on the road, the need to care for school-age children in the absence of proper rest, she was physically unable to show up for work by the beginning of the working day. Despite this, the court denied the worker's claims. The court found no violations of the law when the employee was reprimanded with the deprivation of bonuses for being late for work. The decision of the court indicated that the order established an irregular working day for the chief technologist I. Sergeeva, 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.

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Chief Power Engineer K. Morozov, by order of the director, was delayed at work for two days in order to organize the repair of power equipment after an industrial accident. Then, upon completion of the emergency work, he was delayed for several days in production to organize and launch new technology metering of electrical energy. At the end of the month, he asked to pay overtime and provide 3 days for annual leave 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 had irregular working hours, so he could not have overtime work. The current version of Art. 101 of the Labor Code of the Russian Federation does not provide grounds for canceling this court decision.

Labor rationing 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 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 of standardized labor, i.e. measured, calculated and tariffed labor, within the framework of which it is absurd to talk about irregular working hours. Rated work is characterized by the presence of a standard set for an employee labor costs(effort) known before starting work. The rates are expressed by the volume of work in units of production or production operations to be performed per hour, shift, month, i.e. within the established period of working time. It is not difficult to establish a labor standard if the work is regular in nature, i.e. is performed day after day or at least once a quarter for a long time and is stable in composition, i.e. requires the same homogeneous labor efforts covered by qualification characteristics agreed in the employment contract.

The result of the rationing and tariffication of labor is that the employee has an official salary or tariff rate, which cover the content of the employee's job duties. Detailed study of Tariff qualification handbook work and professions of workers, as well as the Qualification Handbook of the positions of managers, specialists and employees allows us to say that in the Russian Federation mass performing labor is standardized and tariffed.

Difficulties begin with a misunderstanding of the fact that some categories of workers, in the scope of their official powers, along with the main list of official functions, have such duties, the fulfillment of which is ensured by the organization and implementation 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, in the implementation of the results of experimental design, research work. Studying the Qualification Handbook, you can find that the specified duties have the heads of enterprises and their deputies, managers structural units(departments, services) and some other leading specialists (leading technologist, leading power engineer, deputy chief engineer, etc.).

Work these workers is divided into two parts. One part is regular work done day in and day out and requiring the same work effort of the same type. Such work is calculated and covered by the official salary. Another 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 costs of additional, increased intellectual and physical efforts that go beyond the established labor standard for the employee.

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

In accordance with the Decree of the Government of the Russian Federation of October 31, 2002 N 787 "On the procedure for approving the Unified tariff and qualification reference book of work and professions of workers and the Unified qualification reference book of the positions of managers, specialists and employees", each enterprise should have a list of positions, professions and works charged for based on the specified References.

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 Directories, the enterprise must also have a List of works standardized by the employer on its own. The rationing by the forces of the enterprise itself is carried out in accordance with Art. Art. 159, 160 of the Labor Code of the Russian Federation, using labor standards already available at the federal level or using well-known methods of rationing, in particular, using photographs of labor and production process, instant observations and timing, taking into account the results of certification 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 known labor standards and rationing methods. Such work takes place at every enterprise, since the system of human interaction with the tools of production presupposes 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. Such work falls on a separate list and constitutes irregular work.

To perform irregular work, only the order (mode) or method of work is provided. This regime has a name - irregular working hours.

Thus, an irregular working day is an order or a way of performing work 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 a very important feature. It is characterized by the absence of established standards (time rates, production rates). It cannot be accounted for either in hours, or in units of production, or in production operations. And since it is not possible to accurately account and rate, it means that it is impossible to reasonably pay with a fixed part of 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 prior to the commencement of its implementation;
• it is impossible to set a calendar date for the completion of the work before the start of its execution;
• the completeness of the scope of work performed by the available qualifications and the composition of the employee's official duties is unknown.

The work of specialists when using irregular working hours is also distinguished by its features:

• specialists independently organize their work, determining the scope, content and timing of the assignment;
• specialists distribute working hours at their own discretion, i.e. with the aim of fair execution their job duties on the 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 an indefinite duration, depending on the work, which is irregular in nature and unstable in composition.

The concept of work, irregular in nature and unstable in composition, needs to be deciphered. If we proceed from the definition of working conditions, labor standards and labor standards given in the basic system of microelement standards (BSM-1), then we can say the following. Irregular in nature is work that, depending on the technology of 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 scope 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, there is no 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 an irregular working day, are mistakenly classified as a separate category of workers with irregular working hours.

Unlike irregular working hours, overtime work, i.e. working hours outside the normal duration are 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 the rate, and the next hours are paid at least twice the salary (tariff rate). Since labor remuneration is 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 duration of working hours is made using the time standard. The accounting was 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 work performed in hours. Since outside the established normal working hours, it was possible to measure the employee's labor using the time standard and pay in accordance with the established labor standard, it is scientifically and unfair to place irregular working hours 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 the specific tasks of irregular working hours as a working regime. Comments on this legal provision in scientific literature continue to provide clarifications on irregular working hours as work outside the established normal working hours for the employee.

Grounds for using irregular working hours

The grounds for using these mechanisms also admit 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 irregular working hours. It is only said that "if necessary, workers can be occasionally involved in work ...". At the same time, it is not clear what the need is expressed in and when it appears. The legislator also did not provide an explanation of what "episodicity" means in relation to irregular working hours. In Russian, the concept of episodicity 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 is the natural character of an emergency. The incident is associated with technical means (industrial accident, collapse of building structures, etc.) and represents the man-made nature of the emergency. Natural and man-made extraordinary circumstances are grounds for overtime work. They are directly named as grounds in Art. 99 of the Labor Code of the Russian Federation. for instance, overtime work is performed:

• 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 working in order to exclude the possibility of an emergency (damage to property, creating a threat to life and health of people);
• for the repair of mechanisms and structures, when their malfunction can cause the termination of work for a significant number of workers.

As you can see, all of the above cases are characterized by an accident of spontaneous forces of nature or an accident as a result of industrial accidents. In a word, episodicity.

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 the law provides the same grounds for using irregular working hours and overtime work! The result is obvious. The same grounds make it easy to replace overtime hours with irregular working hours.

In fact, the reason for irregular work hours is fundamentally different from the reason for overtime work. The reason for using irregular working hours is the need to introduce new production and management technologies at the enterprise. This need arises periodically. It has nothing to do with episodicity. The 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 and development work, the introduction of new methods of labor, product quality standards occurs 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 irregular working hours appears regularly, after a certain period of time, i.e. periodically. The need for irregular day is not associated with an accident inherent in extraordinary circumstances of a natural nature, and is not associated with an incident that is an extraordinary circumstance of a man-made nature.

Example. An example is the technology for the production of glazed curd cheeses. For the last 5 years, it has been periodically, every 5 - 7 months, improved by introducing new production technology. There is no doubt that from time to time for certain categories of workers (specialists) of the enterprise there is a need to use irregular working hours as a way to perform work that requires additional, increased efforts when introducing new production technology. The use of irregular working hours is compensated by additional leave.

With the introduction of 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 tariffs, and therefore, economically justified to pay.

The practice of using irregular working hours

When used in labor relations of 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 the job descriptions of certain categories of workers.

In the collective agreement of the enterprise, an assessment criterion must be named, according to which a 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. In the job description of a specialist, his responsibilities for the organization or implementation of production and management technologies should be highlighted, since they require additional, increased intellectual and physical efforts.

It is well known that for the conscientious performance of official duties, no special order from the employer, either oral or written, is required. The employee is obliged to fulfill them in full by virtue of the law. The group of the employee's work duties, which is associated with the organization and implementation of production and management technologies, which requires additional, increased labor efforts, is no exception. Art. 21 of the Labor Code of the Russian Federation.

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

Then each time on the basis memo This specialist should make an entry in the Log of irregular work with an indication of the production task, outlining the new method and reception of labor, production and management technology used to solve the problem.

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

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 must first of all state the reason for the need to use irregular working hours. As well as production task, the content of which is the need to introduce a new method and reception of labor, new production and management technology. Under the content of the order, the employee must leave his consent, certified 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 standard of time, the specialist's work in hours. At the same moment, the work of the specified specialist receives legal status normalized labor and will not have anything to do with irregular working hours. This will be overtime payable in accordance with Art. 152 of the Labor Code of the Russian Federation.

Bibliography

1. Dictionary of the Russian language / Ed. S.I. Ozhegova. M .: Russian language, 1989.
2. Scientific research of the Russian Humanitarian Science Foundation N 09-02-00654а "Development of a method 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.
3. A. A. Shibaev The main provisions of the methodology for developing time standards using the domestic basic system of 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