Additional leave for irregular working days

Employees with irregular working hours are provided with annual additional paid leave, the duration of which is determined by the collective agreement or internal rules labor regulations and which cannot be less than three calendar days.

The procedure and conditions for providing annual additional paid leave to employees with irregular working hours are established in the federal government institutions normative legal acts Governments Russian Federation, in state institutions of a constituent entity of the Russian Federation by regulatory legal acts of state authorities of a constituent entity of the Russian Federation, in municipal institutions regulatory legal acts of authorities local government.

Commentary to Art. 119 Labor Code of the Russian Federation

1.According to general rule for workers with irregular working hours duration additional leave, determined by a collective agreement or internal labor regulations, cannot be less than three calendar days.

2. Employees with irregular working hours in organizations with budgetary funding are granted leave in the manner and on the terms determined by the relevant authorities (RF, constituent entity of the Russian Federation, municipal entity).

3. Employees with irregular working hours in organizations financed from the federal budget are granted leave in the manner and on the terms established by Decree of the Government of the Russian Federation of December 11, 2002 N 884 “On approval of the Rules for providing annual additional paid leave to employees with irregular working hours in organizations financed from the federal budget" (SZ RF. 2002. N 51. Art. 5081).

Second commentary to Article 119 of the Labor Code

1. From Part 1 of Art. 119, the provision on compensation for overtime for employees with irregular working hours as overtime work is excluded, if they are not provided with additional paid leave in connection with work on irregular working hours.

The Code (Articles 97, 101) provides for the possibility of involving such workers in the performance of their labor functions outside the working hours established for them.

New edition of Part 1 of Art. 119 can be interpreted in the sense of the obligation to provide employees with irregular working hours with additional paid leave, as long as no other type of compensation for possible overtime is provided for them.

3. It should be emphasized that irregular working hours are special treatment working hours, and not an increased norm. Therefore, employees with irregular working hours cannot be required to constantly overwork the working hours established by law, or make the duration of additional leave dependent on the number of overtime hours.

With irregular working hours, it is possible to overwork the established working hours occasionally. Constant or systematic excess of the established working hours by employees with irregular working hours through no fault of theirs leads to the need to analyze the labor standards established for them, the volume and content of their work duties, and to revise the labor standards, volume and content of work duties downward.

Due to the fact that the involvement of workers with irregular working hours in the performance of their work duties beyond the established working hours (standard working hours) must be formalized by order of the employer (see Article 101 of the Labor Code of the Russian Federation), in the absence of such an order, in practice, employees are often refused in providing additional leave for working irregular working hours. In addition, the duration of such additional leave established by local regulations is often linked to actual overtime. In some cases, the provision of this leave is associated with the presence of actual overtime.

It must be borne in mind that irregular working hours are introduced for those employees whose performance of work duties may obviously require exceeding the established standard working hours. The employer is aware of this. Consequently, the absence of an order to engage an employee with irregular working hours to work beyond the established working hours should not deprive the employee of the right to compensation in the form of additional leave. Establishing the duration of additional leave for an irregular working day or the provision of such leave should not be associated with the actual processing of the established norm of working time.

4. The legislation of the USSR determined the circle of workers who could have an irregular working day:

1) executives, technical housekeeping personnel;

2) persons whose work cannot be counted in time;

3) persons who distribute work time at their own discretion;

4) persons, working hours which, due to the nature of the work, is divided into parts of indefinite duration.

For this circle of workers, irregular working hours can now be established.

5. Like any other working hours permitted by law, irregular working hours are established by internal labor regulations, a collective agreement, or other local regulations adopted in the manner established by the Labor Code (see Articles 8, 100, 101, 371, 372) .

The same acts establish the duration of annual additional paid leave for each category of workers, position, and profession.

For individual employees, an irregular working day and the duration of annual additional paid leave may be established by an employment contract.

The establishment of annual additional leave for irregular working hours by an employment contract is usually practiced in the absence of corresponding norms in the internal labor regulations, collective agreement, or other local regulations.

6. The duration of the annual additional paid leave for employees with irregular working hours cannot be less than three calendar days. Its maximum duration is not limited by law.

Naturally, it is desirable for the employee that such a short additional leave should occur on working days. This may be important when dividing annual paid leave into parts (see Part 1 of Article 125 of the Labor Code of the Russian Federation).

7. In cases where the provision of annual additional paid leave is not provided, overtime of the established working hours for employees with irregular working hours is compensated as overtime(see Article 152 of the Labor Code of the Russian Federation).

8. For organizations financed from the budget, the procedure and conditions for providing annual additional paid leave for this category of employees are determined by the following rules:

1) for organizations financed from the federal budget - by the Government of the Russian Federation;

2) for organizations financed from the budget of a constituent entity of the Russian Federation - by the government body of the constituent entity of the Russian Federation;

3) for organizations financed from the local budget - by local governments.

Other organizations resolve this issue independently, taking into account the availability own funds.

9. Decree of the Government of the Russian Federation of December 11, 2002 N 884 approved the Rules for the provision of annual additional paid leave to employees with irregular working hours in organizations financed from the federal budget (SZ RF. 2002. N 51. Art. 5081).

Ministry of Labor and social development The Russian Federation has been granted the right to provide explanations on the application of these Rules (see paragraph 2 of the said Resolution):

1) annual additional paid leaves for employees with irregular working hours (hereinafter referred to as additional leaves) are provided for work in conditions of irregular working hours to employees of organizations financed from the federal budget, if these employees, if necessary, are occasionally involved by order of the employer in the performance of their labor duties functions beyond normal duration working hours (clause 1 of the Decree of the Government of the Russian Federation of December 11, 2002);

2) the list of positions of employees with irregular working hours who have the right to additional leave is established by the internal labor regulations or another regulatory act of the organization (part 1, paragraph 2 of the same Resolution).

The list of positions of workers with irregular working hours includes managers, technical personnel and other persons whose work during the working day cannot be accurately accounted for, persons who distribute working time at their own discretion, as well as persons whose working time is divided into parts of indefinite duration (part 2, paragraph 2 of the same article);

3) the duration of additional leave provided to employees with irregular working hours cannot be less than 3 calendar days (part 1, paragraph 3 of the same Resolution).

The duration of additional leave for the relevant position is established by the internal labor regulations of the organization and depends on the volume of work, the degree of labor intensity, the employee’s ability to perform his job functions outside the normal working hours and other conditions (Part 2, Article 3 of the same Resolution).

The manager keeps records of the time actually worked by each employee under irregular working hours (part 3, paragraph 3 of the same Resolution);

4) the right to additional leave arises for the employee regardless of the duration of work under irregular working hours. If such leave is not provided, overtime beyond the normal working hours is compensated with the written consent of the employee as overtime work (clause 4 of the same Resolution);

5) additional leave provided to employees with irregular working hours is summed up with the annual basic paid leave (including extended leave), as well as other annual additional paid leave (clause 5 of the same Resolution);

6) in case of postponement or non-use of additional leave, as well as dismissal, the right to the specified leave is exercised in the manner established labor legislation RF for annual paid leave (clause 6 of the same Resolution);

7) payment for additional vacations provided to employees with irregular working hours is made within the limits of the wage fund (clause 7 of the same Resolution).

10. In accordance with the above-mentioned Decree of the Government of the Russian Federation and recommendations of the Ministry of Labor of the Russian Federation, individual executive authorities of the Russian Federation establish rules for subordinate organizations (see, for example, the rules for granting annual additional paid leave to employees with irregular working hours in organizations financed from the federal budget, approved by Order of the Federal Archive Service of Russia dated April 4, 2003 N 36-k // Bulletin of normative acts of federal executive authorities 2003. N 32. P. 159; see also Order of the Ministry of Natural Resources of the Russian Federation dated January 28, 2003 N 52 / / Bulletin of the Ministry of Labor of the Russian Federation. 2003. N 3. P. 34; Order of the Compulsory Health Insurance Fund dated January 4, 2003 N 1 // Bulletin of the Ministry of Labor of the Russian Federation 2003. N 4. P. 50).

Official text:

Article 119. Annual additional paid leave for employees with irregular working hours

Employees with irregular working hours are provided with annual additional paid leave, the duration of which is determined by a collective agreement or internal labor regulations and which cannot be less than three calendar days.

The procedure and conditions for granting annual additional paid leave to employees with irregular working hours are established in federal government institutions by regulatory legal acts of the Government of the Russian Federation, in state institutions of a constituent entity of the Russian Federation by regulatory legal acts of state authorities of a constituent entity of the Russian Federation, in municipal institutions by regulatory legal acts of local government bodies .

Lawyer's comment:

Additional leave for employees with irregular working hours is established as compensation for workload and work outside normal hours. Workers with irregular working hours are employees with a special work schedule, according to which they can, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the working hours established for them (). In accordance with Part 1 of Article 119, employees with irregular working hours are granted annual additional paid leave, the duration of which cannot be less than three calendar days.

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. A collective agreement or internal labor regulations of the employing organization may provide for the duration of additional paid leave with irregular working hours, taking into account the volume of work, the degree of labor intensity, the employee’s ability to perform his job functions outside of normal working hours, etc.

Decree of the Government of the Russian Federation dated December 11, 2002 No. 8841, in accordance with Article 119 of the Labor Code, approved the Rules for providing annual additional paid leave to employees with irregular working hours in organizations financed from the federal budget. The specified additional leave is provided to individual employees of organizations financed from the federal budget for work with irregular working hours. It should be borne in mind that the main condition for granting this additional leave is the periodic need for employees to perform their work functions outside of normal working hours.

It also follows from the approved Rules that the list of positions of employees with irregular working hours who have the right to additional leave is established by the internal labor regulations or other local regulations of the employer. This list includes management, technical and business personnel and other persons whose work cannot be accurately accounted for during the working day, persons who distribute working time at their own discretion, as well as persons whose working time is divided into parts of indefinite duration by the nature of the work. .

The duration of additional leave for an irregular working day cannot be less than three calendar days. It (duration) for the relevant positions is established by internal labor regulations depending on the volume of work, the degree of labor intensity, the employee’s ability to perform his job functions outside the normal working hours and other conditions. At the same time, the employer is obliged to keep records of the time actually worked by each employee under irregular working hours.

These Rules provide that if additional leave for irregular working hours is not provided, overtime beyond the normal working hours is compensated with the written consent of the employee as overtime work. Since such a norm is excluded from Article 119, it seems that such a procedure, provided for in paragraph 4 of the Rules, cannot be applied, and also no records should be kept of time worked in excess of the normal length of the working day (shift).

It should be noted that the employee has the right to additional leave regardless of the duration of work under irregular working hours, and additional leave is summed up with the annual basic paid leave (including extended leave), as well as other annual additional paid leave. In case of transfer or non-use of additional leave, as well as dismissal, the right to said leave is exercised in the manner established by the labor legislation of the Russian Federation for annual paid leave.

The procedure and conditions for providing annual additional paid leave to employees with irregular working hours in organizations financed from the federal budget are established by the Government of the Russian Federation, and for other sources of budget funding - by the relevant entities (authorities of a constituent entity of the Russian Federation or local governments). In practice, the duration of additional leave for work with irregular working hours is established by the relevant executive authorities.

Additional leaves established by labor legislation must be provided to employees regardless of their stipulation in local regulations. These leaves must be granted in an unconditional manner, determined legislative acts, establishing the grounds for their provision and within the duration determined by these acts (resolution of the Presidium of the Armed Forces of the Russian Federation dated January 14, 1998 “Review judicial practice Supreme Court of the Russian Federation for the second half of 1997").

Payment for additional vacations provided to employees with irregular working hours of employing organizations financed from the budget (federal, subject of the Russian Federation and local government) is made within the limits of the wage fund. Payment for additional vacations provided to employees of other organizations in accordance with their collective agreements and other local regulations regulations, is produced at the expense of the organizations’ (employers’) own funds.

Vacation is an employee's rest, provided and paid to him by the organization annually. The right to it is guaranteed to all persons who work under employment contract. It is enshrined in the main law of the country, the Constitution of the Russian Federation (Article 35, paragraph 5), and is regulated by the Labor Code (Chapter 19). In addition to the main one, there are also additional vacations. They have different durations depending on the specifics of the work.

In the article we will consider in general and provided for in particular (Article 119 of the Labor Code of the Russian Federation).

Main and additional leave

So, the employee is granted basic leave every year. It lasts 28 days (calendar), not counting holidays. But there are categories of workers who have even longer vacations. These include, for example, persons under 18 years of age, for whom a duration of 31 days (calendar) is provided.

In addition to the main ones, additional vacations may be provided, which are also paid by the organization. The law provides for two types of such leave: one of them is provided in accordance with the Labor Code of the Russian Federation, and the other can be established directly by employers. The latter option is discussed when concluding an employment contract.

If an employee receives not only the main annual salary but also an additional one, then its total duration is summed up with the additional one.

The duration of both one and the other is not limited. And holidays that fall on it are not paid.

By agreement of the parties, both vacations can be divided into parts. But, in this case, at least one of the parts must last at least two weeks.

Who is entitled to additional leave?

The law provides for certain categories that are entitled to this type of leave:

These are, first of all, those whose work involves dangerous and/or harmful conditions.
They also include those who have a special job.
Additional leave also applies to categories of workers with irregular working hours.

In addition, it is provided for:

working in the Far North;
traveling to these areas on a rotational basis;
athletes;
trainers;
individual medical workers.

For teachers, for every 10 years of teaching without a break, special rest is provided. The duration of additional leave in this case can be up to one year.

There are also additional holidays that are stimulating and not compensatory in nature. For example, they can be provided for length of service, long time of work in one organization, and so on. Their conditions and procedure are also prescribed by law.

Let us briefly look at each of these types separately and study in more detail the additional leave for irregular working days.

Reason: harmful working conditions

Those employees who are engaged in the following harmful and/or dangerous jobs can count on additional leave:

underground mountain;
open mountain;
others associated with adverse effects on human health through physical, biological, chemical and other factors.

Its minimum duration is a week. But, depending on the position that the employee occupies, he can count on vacation from 6 to 36 days (working days). Thus, if the number of working days in a month corresponds to six days working week, then the additional leave will last six days. Moreover, it actually corresponds to seven days (calendar), if you also count one non-working day. In addition, the employer has the right to give more leave to the employee.

Reason: special nature of the work

family doctors and nurses for working without breaks for more than three years;
maintenance workers in Chechnya and seconded to the republic.

Communications and transport workers may also be considered a special type of work.

Reason: work in CS conditions

The duration of additional leave for persons who work in the Far North is twenty-four days (calendar), and for those working in areas equated to the Far North - 16 days (calendar). The same leave is also available for those who go to work in CS locations on a rotational basis.

For these categories of citizens, if they are thinking about how to calculate vacation days in such a way as to obtain its maximum duration, they should be guided by Article 322 of the Labor Code, which provides for the combination of annual vacations. The total duration of leave cannot exceed six months. This period also includes the time that is allocated without salary for travel in one direction or the other.

The unused part of the vacation, which exceeded the six-month period, transfers to the next year.

Rest for part-time workers

The part-time mode involves the employee performing regular work under an employment contract in his free time from his main job. Such persons are entitled to annual leave along with the time allocated for their main job. Even if part-time work lasts less than 6 months, vacation is provided as an advance.

The employee does not have to worry about how to work part-time so that they coincide with the main one. Even if it provides for a shorter duration than at the main job, the employer is obliged to provide the remaining days of vacation along with leave from the main job. True, in this case, those days that exceed the deadline will be considered without pay.

Additional leave for irregular working days

For a general understanding of the issue, let’s first understand what an irregular working day is. This is a special regime according to which employees are involved, by order of management, in performing their functions outside of established working hours.

The peculiarity of this mode is that the nature of the work implies the impossibility of performing all of one’s functions within working hours.

A special agreement or local act provides a list of positions that have this working mode. This document is adopted taking into account the opinion of the trade union, if any.

It should also contain information about this mode, since additional leave for irregular working days applies to Before concluding the corresponding contract, the employee must be familiar with local regulations, which contain a list of positions with this mode of work.

Accounting for irregular working hours does not imply additional payment. The only compensation provided in this case is additional leave.

The procedure is regulated in Art. 119 Labor Code of the Russian Federation. In accordance with it, additional leave is provided, which lasts at least 3 days (calendar) and is paid. Of course, the employer can offer the employee a longer vacation. But this remains at his discretion.

If we're talking about on the provision of the specified leave for employees of organizations that receive funding from the budget of the Russian Federation, its procedure is approved in Decree of the Government of the Russian Federation No. 884 of December 11, 2002. If funding comes from the budget of a constituent entity of the Russian Federation, then the procedure is regulated by the law of the constituent entity, and if from the local budget, then by the compulsory medical insurance act.

Additional leave for irregular working days may have a maximum duration. At least, this normative norm is contained in paragraph 8 of the Rules “On Regular and Additional Leaves” of 1930, where the period of this type of leave does not exceed twelve working days. And if we also take into account the article of the Labor Code, which establishes the longest duration of additional leave (fourteen calendar days), then it is clear that it cannot be longer.

In addition, when determining the duration of this leave, it is necessary to take into account the general frequency of involving the employee in his work duties. In rare cases, the vacation will also be short. At the same time, if the employee regularly works above the norm, then the additional leave should also last accordingly.

The right to additional leave for this category of employees

You should know that the involvement of an employee in work duties outside of working hours must be reflected in the relevant documents. That is, if necessary, a corresponding order is issued. In practice, it often happens that when the order has not been formalized, employees are denied additional leave. However, actual overtime does not deprive the employee of the right to receive additional leave if this work schedule was initially provided for.

Leave not related to work activities

In addition to the indicated categories of workers, citizens of other professions have the right to additional leave, regardless of what job responsibilities is entrusted to them. This category of people includes those who were exposed to radiation due to tests at the Semipalatinsk test site and the Chernobyl disaster.

All the time, no matter how many days their vacation lasts, it is paid for from the federal budget.

Registration of additional leave

The leave order is provided in a unified form. But in addition to the order, a note must be prepared calculating the calculation of wages and other payments upon provision annual leave. The employee must receive vacation pay 3 days before the vacation. The personal card also records information that leave is granted for a certain period of work, the number of days, dates and grounds for it.

In addition, a mark is made on the accounting sheet.

Features of personal income tax

Vacation pay is included in the employee's income. Personal income tax is withheld as usual. Tax Code There are incomes that are not subject to this type of tax. However, it does not mention additional leave. Therefore, in this regard it applies general order, which persists even if the employee is engaged in dangerous and/or harmful work.

But for persons who were exposed to radiation due to tests at the Semipalatinsk test site and the Chernobyl disaster, additional days off are paid. Funding for this is allocated from the budget. Therefore, this payment amount is not subject to personal income tax.

Additional contributions and vacation

For everything that lasts, payments are included in the contribution calculation base. Payment is subject to contributions for both main and additional leave equally.

The exceptions are, again, those persons who were exposed to radiation at the Semipalatinsk test site and at the site of the Chernobyl disaster. Payments for them are not considered in labor relations.

Payment

It happens that a person, for his own reasons, does not want to go on vacation. He works a lot, looking for an opportunity to earn additional income, for example, by agreeing to work on non-working days (as is known, payment for work on a day off and a non-working day is made at no less than double rates). In addition, if the employee does not exercise his right to additional leave, he may receive compensation. Such payment is made at the expense of the company where it is registered.

The following are taken into account when calculating annual leave:

basic salary;
allowances, additional payments, payment for work on days off;
payment for past vacations;
disability payment.

one-time payments;
payments for services provided that were not related to work activities.

Thus, instead of basic and additional leave, an employee can receive monetary compensation. In this case, it must be paid in no less than 24 days (calendar).

If an employee quits, he must also receive compensation for each day of unused vacation.

According to Article 119 Labor Code of the Russian Federation (Collection of Legislation of the Russian Federation, 2002, N 1 (Part I), Art. 3; N 30, Art. 3033; 2003, N 27 (Part I), Art. 2700; 2004, N 18, Art. 1690; Art. 3607; 2005, Art. 13, Art. 1752) Federal Law dated July 27, 2004 N 79-FZ “On the State Civil Service of the Russian Federation” (Collection of Legislation of the Russian Federation, 2004, N 31, Art. 3215; 2006, N 23, Art. 636) in order to provide social guarantees to federal civil servants of the Federal Energy Agency (hereinafter referred to as the Agency) and compensation for additional workload when performing their duties outside the normal working hours, I order:

In accordance with the Federal Law of July 27, 2004 N 79-FZ “On the State Civil Service of the Russian Federation” (Collection of Legislation of the Russian Federation, 2004, N 31, Art. 3215) and Article 119 Federal Law of December 30, 2001 N 197-FZ " Labor Code Russian Federation" (Collection of Legislation of the Russian Federation, 2002, No. 1, (Part I) Art. 3) and for the purpose of regulating the service (work) regime and rest time of employees of the central office Ministries I order.