Legal regulation of duty within the framework of labor relations. State Labor Inspectorate in the Khabarovsk Territory Weekend duty according to labor legislation
Sometimes you have to work
on weekends, holidays during the day and even at night. For such work, of course,
increased pay. But we will tell you in what size in our article.
Payment for work on weekends and holidays
Such work is paid at least double (Article 153 of the Labor Code)
Code of the Russian Federation):
– employees whose salary is set at no less than a single daily or hourly
rates in excess of salary if they worked on a weekend or holiday within
monthly standard working time, and in an amount of at least double hourly or daily
rates in excess of salary if they worked on these days in excess of the monthly norm;
– employees who are paid at daily and hourly rates are not
less than double the amount of such rates;
– for piece workers – at no less than double piece rates.
If only part of the working day falls on a weekend or non-working holiday
shifts, the hours worked on such days are paid double. About
This is stated in paragraph 2 of the clarifications of the State Committee for Labor of the USSR and the Presidium of the All-Union Central Council of Trade Unions from
August 8, 1966 No. 13/P-21 “On compensation for work on holidays.”
It is easy for pieceworkers and time workers to determine the amount of additional payment. But to determine
the amount of such additional payment for an employee receiving a monthly salary must be kept
accounting of working hours: within normal duration and hours worked
above the established norm.
EXAMPLE
A hospital doctor has a monthly salary of 15,000 rubles. According to production
calendar, during the month the employee had to work 21 working days
(168 hours).
However, on one weekend he had to go to work for three hours.
The additional payment for this work will be:
(RUB 15,000: 168 hours)x 3 hours x 2 = RUB 535.71
At the request of an employee who worked on a day off or a non-working holiday,
he is given another day of rest (Article 153 of the Labor Code of the Russian Federation). Then
Payment for a weekend or holiday is made in a single amount, and a day of rest
not paid at all.
Moreover, please note that Article 153 of the Labor Code of the Russian Federation does not establish that the duration
additional rest should correspond to the duration of work on a day off
or a holiday.
Therefore, even if a health worker only worked a couple of days off or on a holiday
hours, he should be given a whole day off.
Payment for night work
Night work is from 10 pm to 6 am (Article 96 of the Labor Code
RF).
Each hour of such work is paid at an increased rate, which is established
employer. However, it cannot be less than that established by law
(Article 154 of the Labor Code of the Russian Federation).
Thus, the amounts of allowances for medical workers are established by a resolution of the Ministry of Labor
Russia dated June 8, 1992 No. 17 “On the amount of bonuses and additional payments for healthcare workers
And social protection population."
According to paragraph 2 of this document, the amount of bonuses for each hour of work
at night is:
Increased pay for duty on weekends and holidays – mandatory requirement labor legislation. When those responsible for calculus wages When people encounter this issue for the first time, they often do not know how to solve it correctly. If calculating the amount of compensation causes difficulties for you, we recommend that you read our article.
From the publication you will learn about the following procedures:
- organization of duty on weekends and holidays: features of employee compensation;
- payment for duty on weekends and holidays: analysis of a typical situation using a specific example.
Organization of duty on weekends and holidays
If duty is performed beyond the specified working hours, including on weekends or holidays, compensation is made according to the rules provided by law. There are 2 types of compensation. Firstly, increased pay for labor activities. Secondly, providing specific employees with additional rest.
Execution job responsibilities on a first-come, first-served basis is considered a specific type of working time. Accordingly, the organization of duty on weekends and holidays should be negotiated separately. This equally applies to the procedure for compensation.
When the employer forms the corresponding local regulatory act, it is allowed to include other provisions on the performance of duty. The rules for performing official duties outside the existing working hours are determined by the needs of the enterprise and the directions of its activities.
Attention! As when drawing up norms that regulate the introduction of working hours, acts on duty performance should be adopted with the direct participation of a representative body of employees.
Involvement in duty concerns the most significant labor rights of employees. The introduction, abolition or change of conditions for their implementation must be carried out in accordance with Art. 73 Labor Code of the Russian Federation. In terms of making adjustments, these procedures are very similar to making changes to employment contracts.
Payment for duty on weekends and holidays: analysis of a typical situation
When pay is required for in-person duty on weekends and holidays, employees usually have no problem obtaining reimbursement. If an employee performs job duties without going to work, some companies try to use this fact to their advantage. As a result, the law is broken. Let's look at a typical situation as an example.
Duty on weekends and holidays without the personal presence of an employee
Let’s assume that during the New Year holidays, an organization issued an order agreed upon with the employees, which establishes the procedure for duty on weekends. The performance of duties does not imply the presence of employees in the enterprise building. Simply put, you can work while “sitting on the phone.”
With this approach, a number of employers believe that double payment for duty on weekends and holidays is not required. Since employees are not actually present at the workplace, there is nothing to compensate. Does this opinion correspond to the current legislation of the Russian Federation?
Legal analysis of the situation
Even if employees are not at work, but are on duty on weekends or holidays, the employer is obliged to pay double! This is explained as follows:
In the Labor Code of the Russian Federation there is no concept of “home duty” or “telephone duty”. If we take the definition of working time from Art. 91, this also includes the time spent performing official duties. According to Art. 100, the working time regime, which establishes the length of the working week and mandatory days off, is set by the internal labor regulations.
In turn, these rules are established on the basis of the labor legislation of the Russian Federation and other regulations. The internal regulations are also set by collective agreements. As well as other agreements concluded with employees.
The time when an employee has the right not to perform duties is used by him at his personal discretion and is called “rest time”. If an employee cannot use his time as he wishes due to the performance of official duties or by order of the employer, it is not considered rest time.
In Art. 113 of the Labor Code of the Russian Federation states that work on weekends or holidays is prohibited. The exception is situations provided for by the Labor Code. Wages on such days are regulated by Art. 153.
The presence of an employee in the enterprise building, home or other place does not matter. Regardless of location, he performs work duties. It follows that he must be paid for duty on weekends and holidays.
When carrying out production and economic activities, many employers are faced with the need to organize workers at home. Home duty, as a rule, is carried out in order to ensure stable uninterrupted operation of the organization, prompt resolution of urgent production issues on weekends and non-working holidays, at night, including emergency response, etc.
Unfortunately, the current labor legislation does not provide the necessary understanding of either the concept or the procedure for organizing and implementing such.
Question answer. Consultation.
How are doctors and surgeons paid for being on duty at home on weekends and holidays? Work is performed in excess of the monthly standard working hours, if on weekdays payment is made in the amount of 50%.
This issue is partially regulated by Order of the Ministry of Health of the Russian Federation dated October 15, 1999 No. 377 “On approval of the Regulations on remuneration of healthcare workers.” According to clause 7.1 of the said Regulations, duty duties are introduced within the balance of working hours of the relevant employees for the accounting period, usually a month.
Home duty
We work in the operating room of the Central District Hospital as operating rooms and nurse anesthetists (2 people in each of these positions) - from 8 a.m. to 8 p.m. The hospital provides 24-hour care; for surgical interventions we are called at night and on holidays. Is payment required for home duty and at what rate? Nurses, Grodno region.
They are introduced only in certain cases to ensure the provision of emergency medical care when it is impossible to organize work in another way (for example, when staffing is low, etc.).
Involvement in home work is carried out with the consent of the employee, the procedure is established between the employer and the employee and is formalized by an appropriate order.
Payment for duty at home is made on the basis of clause.
Doctors on duty at home will be paid only half
For duty at home, doctors will receive only half the money that they could earn in a medical institution, but they will be paid in full for emergency calls. The Ministry of Health approved the Regulations on recording the working time of doctors on home duty. The document was published today on the Rossiyskaya Gazeta website.
Last year, health workers were allowed to sit at home and go about their business while waiting for a call.
Home duty
The Labor Code does not provide for such a form of labor organization as duty at home. By virtue of Art. 91 of the Labor Code of the Russian Federation, working time is the time during which an employee, in accordance with the internal labor regulations and the terms of the employment contract, must perform labor duties, as well as other periods of time that, in accordance with this Code, others federal laws and other regulatory legal acts Russian Federation refer to working time.
How is home duty paid?
The issue of remuneration for work while on duty at home is regulated by a joint order of the Ministry of Health and the Ministry of Labor dated October 5, 2005. No. 308/519 “On streamlining the conditions of remuneration for employees of health care institutions and institutions for social protection of the population and social policy” (extract):
Doctors and specialists with basic and incomplete higher education medical education healthcare institutions that are engaged in providing medical care to the population, incl.
How to properly register a doctor for duty?
work without holding a full-time position in the same institution or another organization, duty of medical workers in excess of the monthly working hours according to the schedule, etc.
In healthcare, internal part-time work is often used - working differently employment contract within one institution in free time from main work. Such work is paid in proportion to the time worked within the established rate.
On duty at home for medical workers
On January 24, 2013, the State Duma of the Russian Federation was asked to adopt in the first reading bill No. 186154-6 on amending Article 350 of the Labor Code of the Russian Federation on the establishment of duty at home for certain categories of medical workers.
The bill was proposed by the Government of the Russian Federation and developed by the Russian Ministry of Health based on the results of the Forum of Rural Intelligentsia (November 15, 2011).
The purpose of the bill is to organize the receipt of full medical care in rural areas and urban settlements, subject to a shortage of medical workers.
The essence of the proposal: at the end of the working day, a medical worker (the categories of these workers have not yet been determined) should be on duty at home, i.e.
In accordance with the Regulations on the remuneration of power plants, duty at home is an employee staying at home while waiting for a call to work (to ensure the safety of energy facilities, prevent emergencies or other emergency situations during long holidays and weekends). Home duty is carried out on employees' days off with their written consent. Payment for time on duty at home is made as working time at the rate of 1/4 of the hourly tariff rate (part of the official salary per hour of work) for each hour of duty at home. Is this legal?
Having considered the issue, we came to the following conclusion:
In our opinion, payment for duty at home in this case at the rate of 1/4 of the hourly tariff rate (part of the official salary per hour of work) for each hour of duty does not comply with the law. All actual hours of duty at home must be taken into account and paid as working hours according to the rules of Art. 153 Labor Code of the Russian Federation.
Rationale for the conclusion:
First of all, we note that labor legislation does not provide for such a form of labor organization as duty at home. Duties at home are established, for example, for rescuers (clause 3 of the Regulations on recording the working time of citizens accepted into professional emergency rescue services, professional emergency rescue units for the positions of rescuers, approved by Resolution of the Ministry of Labor of Russia dated 06/08/1998 N 23), for medical workers (part six of article 350 of the Labor Code of the Russian Federation, clause 3 of the Regulations on the peculiarities of the working time regime and recording of working time during the implementation of medical workers medical organizations duty at home, approved by order of the Ministry of Health of the Russian Federation dated April 2, 2014 N 148n).
As we understand from the question, these documents do not apply to your employees. There are no other regulatory legal acts that would establish duty at home for the categories of workers referred to in the question.
At the same time, as noted in the explanations of Rostrud, duty at home cannot be assigned to employees for whom the possibility of such duty is not provided for by regulatory legal acts. If home duty is nevertheless introduced by the employer, then as working time they should be taken into account and paid in the usual manner (see question-answer 1 and question-answer 2 with information portal Rostruda "Online inspection. RF).
Thus, when deciding on payment for time on duty at home, the employer, in the absence of special rules for the situation in question, must take into account general norms labor legislation.
Note that a day off (weekly continuous rest) and non-working holidays refer to the employee’s rest time, during which the employee is free from performing work duties and which he can use at his own discretion (Article 106, Article 107, Article 112 of the Labor Code RF). Work on weekends and non-working holidays is prohibited, except in cases provided for by the Labor Code of the Russian Federation (part one of Article 113 of the Labor Code of the Russian Federation). In some cases, it is allowed to be hired to work on weekends and non-working holidays, but this is possible either with the written consent of the employee, or in the event of emergency circumstances specified in part three of Art. 113 Labor Code of the Russian Federation.
In the situation under consideration, an employee being on duty on a weekend or non-working holiday reduces the employee’s actual rest time, limits the employee’s right to dispose of this rest time at his own discretion and, as a result, indicates that the said employee is involved in work on a weekend or non-working holiday, despite the actual doing work at home. Accordingly, despite the employee being at home, the specified time on duty at home is counted as worked.
Thus, since the duty duties you indicated are not established by regulatory legal acts, but are provided only by the internal acts of the organization, we believe that payment for such duty at the rate of 1/4 of the hourly tariff rate (part of the official salary per hour of work) for each hour of duty does not comply with the law . All actual hours of duty at home must be taken into account and paid as working hours according to the rules of Art. 153 of the Labor Code of the Russian Federation (see also question-answer 3 and question-answer 4 from the information portal of Rostrud "Online inspection. RF").
Prepared answer:
Expert of the Legal Consulting Service GARANT
Naumchik Ivan
Response quality control:
Reviewer of the Legal Consulting Service GARANT
Kudryashov Maxim
The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.
Car drivers have a 40-hour work week with normal working hours (8 hours). They work on irregular working hours.
The employer is going to establish in its local act the duty schedule for car drivers during non-working hours (after the end of working hours, on non-working holidays and weekends). Duty will be carried out “on the phone” or “at home”. In case of production necessity, the driver on duty, with his consent, will be involved in work on a day off or overtime.
Does the employer have the right to enter duty data for drivers?
If duty can be established, should any compensation be provided to the driver for being on duty if he was not involved in the work?
Having considered the issue, we came to the following conclusion:
In this case, the employer does not have the right to place drivers on duty by telephone or at home.
Prepared answer:
Expert of the Legal Consulting Service GARANT
Mazukhina Anna
Response quality control:
Reviewer of the Legal Consulting Service GARANT
Sutulin Pavel
The material was prepared on the basis of individual written consultation provided as part of the service
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