How is home duty paid? State Labor Inspectorate in the Khabarovsk Territory Home duty on weekends and holidays
For medical workers, a reduced working time of no more than 39 hours per week is established. Depending on the position and (or) specialty, the working hours of medical workers are determined by the Government Russian Federation.
For medical workers of healthcare organizations living and working in rural areas and urban settlements, the duration of part-time work may be increased by decision of the Government of the Russian Federation, adopted taking into account the opinion of the relevant all-Russian trade union and all-Russian association of employers.
(as amended by Federal Law No. 90-FZ of June 30, 2006)
(see text in previous
(part three introduced by Federal Law dated August 22, 2004 N 122-FZ)
In order to implement the program of state guarantees of free provision of emergency or emergency medical care to citizens, medical workers of medical organizations, with their consent, can be assigned to duty at home.
(part four introduced by Federal Law dated 06/07/2013 N 125-FZ)
Duty at home is the stay of a medical worker of a medical organization at home while waiting to be called to work (to provide medical care in an emergency or urgent manner).
(Part five introduced by Federal Law dated 06/07/2013 N 125-FZ)
When taking into account the time actually worked by a medical worker of a medical organization, the time spent on duty at home is taken into account in the amount of one-half of an hour of working time for each hour of duty at home. The total working time of a medical worker of a medical organization, taking into account the time on duty at home, should not exceed the standard working time of a medical worker of a medical organization for the corresponding period.
(part six introduced by Federal Law dated 06/07/2013 N 125-FZ)
Features of the working time regime and recording of working time when medical workers of medical organizations perform duty at home are established by the federal body executive power, performing the functions of producing public policy and legal regulation in the field of health care.
(Part seven introduced by Federal Law dated 06/07/2013 N 125-FZ)
ConsultantPlus: note.
Employment contracts with heads (deputies) of medical organizations who have reached 65 years of age as of 10/01/2017 or who will turn 65 years of age within 3 years from this date are valid until the expiration of the contracts, but no more than until 10/01/2020 (Federal Law dated 07/29/2017 N 256-FZ).
Positions of heads, deputy heads of medical organizations subordinate to federal executive authorities, executive authorities of constituent entities of the Russian Federation or bodies local government, heads of branches of medical organizations subordinate to federal executive authorities are replaced by persons under the age of sixty-five years, regardless of the validity period of employment contracts. Persons holding these positions and who have reached the age of sixty-five years are transferred, with their written consent, to other positions corresponding to their qualifications.
(part eight introduced by Federal Law dated July 29, 2017 N 256-FZ)
The founder has the right to extend the tenure of an employee holding the position of head of a medical organization subordinate to a federal executive body, an executive body of a constituent entity of the Russian Federation or a local government body until he reaches the age of seventy years upon the proposal of a general meeting (conference) of employees of the specified medical organization .
(part nine introduced by Federal Law dated July 29, 2017 N 256-FZ)
The head of a medical organization subordinate to a federal executive body, an executive body of a constituent entity of the Russian Federation or a local government body has the right to extend the tenure of an employee holding the position of deputy head of the specified medical organization or the position of head of a branch of a medical organization subordinate to the federal executive body, until he reaches the age of seventy years in the manner established by the charter of the medical organization.
(Part ten was introduced by Federal Law dated July 29, 2017 N 256-FZ)
In addition to the grounds provided for by this and other federal ones, the basis for termination of an employment contract with the head, deputy head of a medical organization subordinate to a federal executive body, an executive body of a constituent entity of the Russian Federation or a local government body, or the head of a branch of a medical organization subordinate to a federal executive body is reaching the age limit for holding the relevant position in accordance with this article.
(Part eleven introduced by Federal Law dated July 29, 2017 N 256-FZ)
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Labor Code of the Russian Federation, Article 351. Regulation of the labor of creative workers in the media, cinematography organizations, television and video crews, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works >>
Art. 350 Labor Code of the Russian Federation. Some features of labor regulation for medical workers
Labor Code of the Russian Federation
with comments
Commentary on Article 113
§ 1. Article 113 has been radically changed structurally and in content, retaining its main goal - to ensure rest for employees on weekends and non-working days. holidays. For this purpose, work on these days is generally prohibited.
§ 2. In Art. 113 establishes a list of grounds for attracting workers to work on weekends and non-working holidays, and the procedure for attracting them to work. Their text indicates that cases of attracting an employee to work on these days can only occur as an exception to the general rule.
§ 3. In Art. 113 shows four groups of cases (grounds) when the Code allows for the involvement of employees in work on weekends and non-working holidays and establishes its own procedure for each of them.
1. The first group includes cases of the need to perform previously unforeseen work, on the urgent implementation of which the future normal operation of the organization as a whole or its individual structural divisions, or an individual entrepreneur depends. In these cases, involvement is possible with the written consent of the employee.
2. The second group includes cases of attracting workers to work for a specific purpose in extraordinary (emergency) situations:
1) to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, industrial accident or natural disaster;
2) to prevent accidents, destruction or damage to the employer’s property, state or municipal property;
3) to perform work the need for which is due to the introduction of a state of emergency or martial law, as well as urgent work under emergency circumstances, i.e. in the event of a disaster or threat of disaster (fire, flood, famine, earthquake, epidemic or epizootic) and in other cases threatening the life or normal living conditions of the entire population or part of it. In these special (emergency) cases, the consent of employees to be hired to work is not required.
3. The third group of cases assumes the presence of other situations requiring the involvement of employees to work on weekends and non-working holidays. Apparently, this refers to situations that arise for employers, but do not belong to the first two groups. In these cases, in addition to the written consent of the employee, it is necessary to take into account the opinion of the elected body of the primary trade union organization. However, the procedure for taking into account the opinion of this body is not directly defined in the Code. Article 372 establishes the procedure in relation to local regulations. We can only recommend using in practice the procedure provided for in Art. 372. It is obvious that it is advisable to determine the procedure for taking into account the opinion of a given trade union body on the issue under consideration in collective agreements, agreements, and local regulations, using an analogy with Art.
Doctors on duty at home: taking into account time (Davydova E.V.)
372.
4. The fourth group consists of work, the suspension of which is impossible due to production and technical conditions (continuously operating organizations), work caused by the need to serve the population, as well as urgent repair and loading and unloading work.
For these cases, the procedure for attracting employees to work on weekends and holidays is not established by the Code. Practice considers the performance of such work as a labor duty of employees.
§ 4. For some categories of workers, the Code provides for a direct ban or restrictions on being hired to work on weekends and non-working holidays:
1) Article 268 prohibits employing workers under the age of 18 to work on weekends and non-working holidays (with the exceptions specified in the same article);
2) it is prohibited to hire pregnant women to work on these days (see Part 1 of Article 259);
3) hiring women with children under three years of age to work on these days is allowed only with their written consent and provided that this is not prohibited for them due to health reasons in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation. At the same time, female workers must be informed in writing (Article 113 says “against signature”) of their right to refuse to engage them in work on weekends and non-working holidays (see Part 2 of the same article, Part 7 of Art. 113);
4) the above guarantees for women are provided to mothers and fathers raising children under 5 years of age without a spouse, having disabled children, as well as employees caring for sick members of their families in accordance with a medical report (see Part 3 Article 259);
5) hiring disabled people to work on weekends and non-working holidays is permitted only if such work is not prohibited for them due to health reasons in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation. At the same time, disabled people must be informed, upon signature, of their right to refuse to work on a day off or a non-working holiday (Part 7, Article 113 of the Labor Code).
§ 5. Article 113 of the Labor Code provides for the legal form of an employer’s act on inviting employees to work on weekends and non-working holidays. Such an act must be a written order of the employer.
Article 113 of the Labor Code provides the basis for determining the content of such an order (instruction). It should indicate the case (ground) in connection with which employees are involved in work on a day off or a non-working holiday, a specific date, the names of the employees involved on this day (which is important for subsequent compensation for this work), the written consent of each of them them. The order should be accompanied by the written consent of each employee to work on that day, and if the number of such workers is small, their written consent can be expressed directly at the employer’s order.
§ 6. Work on weekends and non-working holidays is paid at least double the amount. At the request of the employee, instead of increased pay, he may be given another day of rest, which is not subject to payment (see parts 1 and 2 of Article 153 of the Labor Code).
§ 7. The general rules for attracting workers to work on weekends and non-working holidays have been adjusted taking into account the characteristics of certain categories of workers specified in Part 3 of Art. 113 TK.
For creative workers (workers of the media, cinematography organizations, television and video crews, theaters, theatrical and concert organizations, circuses and other creative workers), as well as professional athletes, the Code provides for the admissibility of being recruited to work on weekends and non-working holidays in accordance with with lists of jobs, professions, positions of these workers, approved by the Government of the Russian Federation, taking into account the opinion of the Russian Tripartite Commission for the Regulation of Social and Labor Relations, and in the manner established by the collective agreement, local regulations, employment contract (Part 4 of Article 113).
For wages on weekends and non-working days for these workers, see Art. 153 TK.
§ 8. Employees who have entered into an employment contract for a period of up to two months may, within this period, be required, with their written consent, to work on weekends and non-working holidays with payment of at least double the amount (see Article 290 of the Labor Code).
§ 9. To ensure order and, if necessary, promptly resolve emerging issues on holidays and sometimes on weekends, the employer appoints responsible duty officers.
Such duty differs from work called duty, provided for by work schedules (shifts), as well as from duty (and essentially also work), for which workers are specially hired (doctors on duty, watchmen, mechanics on duty, etc.). In contrast to duty, here workers perform their main work under an employment contract with an appropriate work and rest schedule.
Duty is the presence of an employee in an organization by order of the employer before or after the end of the working day on weekends or holidays as a person responsible for order and for the prompt resolution of urgent issues that arise that are not related to the production activities of the organization.
A special Resolution of the All-Union Central Council of Trade Unions of April 2, 1954 was adopted on duty (Bulletin of the All-Union Central Council of Trade Unions. 1954. No. 8).
There is no regulatory legal act on duty; The Labor Code does not mention them either. In this regard (and since) the rules on duty provided for by the said Resolution of the All-Union Central Council of Trade Unions do not contradict the Code, they should be guided in practice. Employees are allowed to go on duty no more than once a month.
For duty on weekends and holidays, all employees are given time off for the next 10 days of the same duration as the duty.
In the case of being called to duty before or after the end of the working day, attendance at work is shifted accordingly so that the duration of duty or work together with duty does not exceed the established duration of the working day. Hours of duty in excess of the time of daily work according to the schedule (schedule) must be compensated by time off in the same way as compensation of duty time on weekends and holidays.
According to established practice, employees who cannot be involved in overtime work are not assigned to duty.
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JSC "RUSSIAN RAILROADS"
ON APPROVAL OF THE REGULATIONS ON THE PROCEDURE AND CONDITIONS FOR ORGANIZING DUTY AT HOME (IF THE POSSIBILITY OF CALLING TO WORK) OR WITH THE RIGHT TO REST IN A SPECIALLY EQUIPPED ROOM (PREMISE) FOR EMPLOYEES OF THE CENTRAL COMMUNICATION STATION
Approve and put into effect from January 1, 2011 the attached Regulations on the procedure and conditions for organizing duty at home (if called to work) or with the right to rest in a specially equipped room (premises) for employees of the Central Communications Station.
President of JSC Russian Railways
V.I. Yakunin
APPROVED
by order of JSC Russian Railways
dated 10/18/2010 N 2155r
POSITION
ABOUT THE PROCEDURE AND CONDITIONS FOR ORGANIZING DUTY AT HOME (IF THE POSSIBILITY OF CALLING TO WORK) OR WITH THE RIGHT TO REST IN A SPECIALLY EQUIPPED ROOM (PREMISE) FOR EMPLOYEES OF THE CENTRAL COMMUNICATION STATION
1. These Regulations, developed in accordance with paragraph 8 of the Regulations on the peculiarities of working time and rest time, working conditions of certain categories of railway transport workers directly related to the movement of trains, approved by order of the Ministry of Railways of the Russian Federation dated March 5, 2004 N 7 , applies to electromechanics (if it is not possible to attract an electromechanic to duty - to a senior electromechanic) of service areas for linear communication devices, radio communications and other structural units of the Central Communications Station (hereinafter referred to as objects), the performance of labor duties of which does not require a 24-hour presence at the workplace in accordance with with the technology for organizing their work (hereinafter referred to as on-duty workers).
2. Duty at home (if it is possible to be called to work) or with the right to rest in a specially equipped room (premises) of workers on duty is introduced by order of the head of the communications directorate, taking into account the opinion of the representative body of workers, with the written consent of the worker on duty and is formalized by an additional agreement to the employment contract.
3. The list of objects at which duty can be established at home (if it is possible to be called to work) or with the right to rest in a specially equipped room (premises), is approved by the head of the communications directorate in agreement with general director Central communication station.
4. Duty workers at home (if it is possible to be called to work) are allowed provided that the duty worker’s living quarters are equipped with wired or mobile communication with the duty officer of the production site for monitoring and diagnosing the communication network of the regional communication center (hereinafter referred to as the duty center) and the possibility of the duty worker arriving with place of residence to workplace in no more than 20 minutes.
5. When on duty at home (if it is possible to be called to work), the employee on duty must:
a) check the availability of communication with the duty control center;
b) take over duty from the on-duty employee handing over the shift, and at the end of the shift, hand over duty to the on-duty employee taking over the shift using wired or mobile communications;
c) report to the duty control center about the acceptance (end) of duty.
6. Duty workers with the right to rest in a specially equipped room (premises) are allowed under the following conditions:
a) a room intended for rest while on duty at the site must be isolated and equipped with a direct telephone connection to the duty control center, as well as a calling alarm;
b) the room must be equipped with heating, a bed with a full set of bedding, individual lockers for storing them, a table lamp, a kettle, a microwave oven (the use of an electric stove with a closed spiral is allowed) for heating food, a refrigerator and meet the requirements of sanitary and hygienic standards and fire safety security;
c) the employee on duty must be provided with drinking water, as well as water for washing hands (in the absence of running water, a washstand).
7. When on duty with the right to rest in a specially equipped room (premises), the employee on duty must:
a) take over duty from the duty worker handing over the shift and, at the end of the shift, hand over duty to the duty worker taking over the shift directly at the workplace. Reception and delivery of duty are recorded in the reception/delivery of duty log and certified by the signatures of the handing over and receiving employees;
b) report to the duty control center about the acceptance (end) of duty.
8.
Home duty
The end of duty time is the time when the duty worker accepting the shift is handed over. The worker on duty must inform the duty control center, as well as the head of the production site, about failure to appear or not accept a shift, as well as about a sudden illness, and act according to their instructions.
9. Each hour an employee on duty performs the duties of an electrician (including a senior electrician) at the workplace while on duty is counted as 1 hour of working time.
Each hour of duty at home (if it is possible to call to work) of an employee on duty is counted as 0.25 hours of working time.
Each hour of duty with the right to rest in a specially equipped room (premises) is counted as 0.75 hours of working time.
10. For on-duty workers, a summarized (monthly, quarterly) recording of working time is introduced.
11. The procedure for introducing summarized recording of working time, start and end times and duration of duty are established by the internal labor regulations of the structural units of the Central Communications Station.
12. The shift schedule of on-duty workers on shift duty must include both duty and work to perform the duties of an electrician (including a senior electrician) within the normal working hours of the accounting period.
Shift schedules for on-duty workers are approved by the head of the facility, taking into account the opinion of the representative body of workers, and are brought to the attention of on-duty workers no later than one month before they come into effect. Working two shifts in a row is prohibited.
13. Shift schedules for on-duty workers must be drawn up taking into account compliance with the standard working hours for the accounting period and providing the number of days of weekly rest equal to the number of Sundays of a given calendar month, which are indicated in these schedules.
14. If an employee on duty performs the duties of an electrician (including a senior electrician) at the workplace, instead of being on duty at home as planned in the shift schedule (if it is possible to be called to work) or with the right to rest in a specially equipped room (premises), the shift schedule must be adjusted by providing rest time within the accounting period.
The possibility of home duty health workers was established in June 2013. The changes were initially caused by a shortage of health workers in rural areas. And if at first it was planned that health workers would be able to work at home after the end of the working day, then according to the adopted Law, an employee cannot work more than the standard hours established for him by law.
Home duty
Be that as it may, the employer must record the time spent on duty at home. And the Ministry of Health recently approved the Regulations on the peculiarities of the working time regime and recording of working time when medical workers of medical organizations carry out duty at home<1>(hereinafter referred to as the Regulations). Let's look at what home duty is and how to take it into account work time.
———————————
<2>Approved by Order of the Ministry of Health of Russia dated April 2, 2014 N 148n.
According to Part 4 of Art. 350 of the Labor Code of the Russian Federation, in order to implement the program of state guarantees of free provision of medical care to citizens in an emergency or urgent form, medical workers of medical organizations may be assigned to duty at home.
Duty at home is the stay of a medical worker at a medical organization at home, waiting to be called to work (to provide emergency or emergency medical care). An employer can involve employees on duty at home only with their consent. This working time regime should first of all be enshrined in a local regulatory act, for example, in the internal labor regulations. In addition, for a specific employee it must be established by an employment contract upon hiring or an additional agreement if the employee is already working.
And part 6 of Art. 350 of the Labor Code of the Russian Federation, and the Regulations establish that when taking into account the time actually worked by a medical worker of a medical organization, the time spent on duty at home is taken into account in the amount of 1/2 hour of working time for each hour of duty at home. The total working time of such an employee, taking into account the time on duty at home, should not exceed the standard working time of a medical worker of a medical organization for the corresponding period.
According to the Regulations for health workers on duty at home, the internal labor regulations establish a summarized recording of working time. The start and end times of duty at home are determined by the work schedule approved by the employer, taking into account the opinion of the representative body of employees.
Note! According to Art. 103 of the Labor Code of the Russian Federation, shift schedules are brought to the attention of employees no later than one month before they come into effect.
In addition, if in Art. 350 of the Labor Code of the Russian Federation only talks about how time spent at home is taken into account. The Regulation determines the time spent by an employee on providing medical care, as well as the time it takes to travel from home to the place of work (place of emergency medical care) and back.
This time is taken into account in the amount of an hour of working time for each hour of medical care and travel of a medical worker from home to the place of work (place of emergency medical care) and back.
In this case, the time on duty at home in the accounting period is adjusted so that the total working time of this employee, taking into account the time on duty at home, does not exceed the standard working time of a medical worker of a medical organization for the corresponding period.
For your information. Previously, the draft Regulations provided: if the total length of time worked by a medical worker during the accounting period, including time on duty at home, as well as the time spent on providing medical care and the time a medical worker travels from home to work and back in the event of a call to work while on duty at home exceeds the standard working time established for the employee in accordance with the collective agreement, agreements, local regulations, employment contract, overtime is overtime work. But, as we see, the legislator did not provide for such a possibility in the Regulations.
The procedure for recording the travel time of a medical worker from home to the place of work (place of emergency medical care) and back is established by local regulations in agreement with the representative body of workers.
Based on the Regulations, the following conclusions can be drawn:
— the time of providing medical care and the time of travel to the place of care are counted as working time;
— time on duty at home is taken into account in the amount of 1/2 hour of working time;
— the start and end times of duty are determined by the work schedule, which must be agreed upon with the representative body of workers;
— for employees on duty at home, the internal labor regulations establish a summarized recording of working time;
- the total duration of time on duty at home, the time of providing medical care and the time of traveling from home to the place of work and back should not exceed the standard working time for the accounting period;
— the procedure for recording time is established by a local act in agreement with the representative body of workers.
The Regulations do not say anything about payment for working hours if duty at home falls on weekends or holidays or at night. We believe that in the absence of clarification, one should be guided by general provisions Labor Code. If the duty time at home falls at night, the rules of Art. 154 of the Labor Code of the Russian Federation, that is, such time is paid at an increased rate, but not less than 20% of the hourly tariff rate (salary (official salary) calculated per hour of work) for each hour of work at night<2>. In this case, of course, you need to take into account that every two hours of duty at home is counted as an hour of work at the workplace.
———————————
<2>Decree of the Government of the Russian Federation dated July 22, 2008 N 554 “On the minimum amount of increase in wages for work at night.”
If duty at home falls on a weekend or holiday, Art. 153 of the Labor Code of the Russian Federation, according to which such work is paid at least double the amount or the employee, at his request, is given an additional day of rest.
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The Federal State Budgetary Institution has a job that requires them to go to work on weekdays and on weekends (as duty). How can you prepare documentation for employees so that they work on weekdays and on weekends as duty?
Answer
- familiarize the employee with his right to refuse work (if necessary);
Related materials:
The rationale for this position is given below in the materials of the “Personnel System” .
"General procedure
How to get an employee to work on a weekend or holiday
To attract employees to work on a weekend or holiday, you need to:
- issue an order to attract an employee to work;
- familiarize the employee with his right to refuse work (if necessary);
- obtain the employee’s written consent to work on a weekend or holiday (if necessary);
- take into account the opinion of the trade union (if there is one in the organization).
Question from practice: Is it necessary to indicate the lunch break time in the order to involve an employee in work on a weekend or holiday?
There is no obligation. At the same time, it is recommended to indicate specific hours of work and rest on a non-working day in order to eliminate all controversial issues. Especially if a person is involved in work not for a full day, but only for a few hours.
If an employee is invited to work on a weekend or holiday for several hours, then their number must be reflected in the order. Moreover, if the number of hours, for example, is more than half of the standard working time, then it makes sense to set a break for rest and nutrition (). The break time in such a situation also needs to be reflected in the order, since it is not included in working hours and will not need to be paid (, Labor Code of the Russian Federation).
If an employee is hired full-time, then in general it is assumed that he works according to his standard schedule with a regular break for rest and food, which is established by the Labor Regulations or the employment contract. In this case, the work time is often not indicated, but simply the date of employment on a weekend or holiday. At the same time, in order to avoid controversial situations with payment for break time, it is recommended that the work and lunch time be reflected in the order for this case as well.
Employee consent
How to obtain an employee’s consent to work on a weekend or holiday
The Labor Code of the Russian Federation does not say how to formalize an employee’s consent to work on a day off (holiday). In particular, this can be done in one of the following ways:
- in the form of an employee application in any form;
- in the form of an employee’s mark on the order to be hired to work on a weekend or holiday: “I agree to be hired to work.”
Question from practice: Is it possible to hold an employee accountable for absenteeism on a weekend or holiday? The employee gave written consent to unscheduled work, but due to the fault of the administration, he was not familiar with the order
No you can not.
To involve an employee in work on a weekend or holiday, it is necessary to obtain his written consent, as well as to issue an order for unscheduled work (). In this case, the employer is obliged to familiarize the employee with such an order (under signature). If the employee was not familiar with the order, then the conditions for compliance with labor discipline were not created by the employer (). In such a situation, the employee’s absence from work on his day off cannot be considered absenteeism and the employer has no grounds for bringing the employee to disciplinary liability ().
The legitimacy of this position is confirmed by judicial practice (see, for example,).
Notice of right of withdrawal
In what cases should an employee be notified of the right to refuse work on weekends and holidays?
A notice (message) about the right to refuse work on a weekend or holiday must be issued if the following people are involved in work:
- disabled people;
- women with children under three years of age;
- mothers and fathers raising children under the age of five without a spouse;
- employees with disabled children;
- employees caring for sick members of their families in accordance with a medical report.
Such rules are spelled out in articles of the Labor Code of the Russian Federation.
Question from practice: How to notify an employee of the right to refuse work on weekends and holidays
The legislation does not say how and by what document an employee must be notified of the right to refuse to work on weekends and holidays. It is only important that it be a written document ().
Some organizations have this practice. The employee writes by hand on the order to hire him to work on a weekend or holiday: “I am familiar with the right to refuse work.” However, within the meaning of labor legislation, it is advisable to notify the employee before issuing the order. Therefore, issue the notification in the form of a separate document and familiarize the employee with it against signature.
Union opinion
Is it necessary to take into account the opinion of the trade union when inviting employees to work on weekends and holidays?
If the organization has a trade union, when inviting employees to work on weekends or holidays, its opinion must be taken into account. This is not required if the employee:
- called to work in cases where his consent is not required;
- called to work to perform unforeseen work, on the urgent completion of which the future normal operation of the organization or its division depends.
In addition, the consent of the trade union is not required to hire certain categories of employees. This refers to creative workers, media workers and other employees listed in Article 113 of the Labor Code of the Russian Federation and approved by.
Such rules are established in the Labor Code of the Russian Federation.
Question from practice: Is it necessary to draw up documents to hire someone to work on a weekend or holiday if the employee has an irregular working day?
Yes need.
The procedure for engaging “regular” employees and employees who have irregular working hours to work on a weekend or holiday does not differ.
The peculiarity of the irregular mode is that employees can be involved in work outside the normal working hours (). This effectively means that employees will work overtime at times. But this does not mean that employees who have an irregular day can freely (without registration necessary documents) call on a day off or holiday. When inviting them to work on a weekend or holiday, complete all the documents listed in the Labor Code of the Russian Federation ().
Question from practice: Is it necessary to draw up additional documents to hire someone to work on Sunday, if this day is a working day for the employee?
No no need.
In this case, the employee is not considered to be working on a day off.
As a general rule, the day off for all employees is Sunday (). However, in continuously operating organizations, employees can be given days off on other days (). Accordingly, if according to the schedule Sunday is a working day for an employee, there is no need to draw up documents to hire him to work on a day off.
Question from practice: How to involve an employee in an organization on duty on a day off. There is no duty job responsibilities employee*
Involving an employee on duty on a day off is possible in exceptional cases and not more than once a month. Obtain the employee’s consent to be on duty and coordinate it with the trade union (if there is one in the organization). Formalize your assignment to duty by order or organizational regulation. This follows from the provisions of Article 113 of the Labor Code of the Russian Federation, Resolution of the Secretariat of the All-Union Central Council of Trade Unions dated April 2, 1954 No. 233. This document is used to the extent that does not contradict the Labor Code of the Russian Federation.
The duration of duty on a day off cannot exceed the employee’s normal working day (shift). At the same time, compensate for duty on a weekend or non-working holiday by paying the usual (single) amount and providing days of rest over the next 10 days according to the number of days on duty (,). In addition, since the current labor legislation provides for the possibility of choosing compensation for working on a day off: increased pay or the provision of a substitute day of rest, the employee has the right to apply for increased pay for duty (). We recommend that you agree on a specific guarantee for duty with the employee.
For more information on how to involve an employee in working at home on a weekend, see How to involve an employee in working at home on a weekend. Duty is not provided for by the employee's job responsibilities.
Question from practice: how to involve an employee in working at home on a day off. Duty is not provided for by the employee’s job responsibilities
The Labor Code of the Russian Federation does not contain the concept of “duty at home”.
While on duty at home (for example, in case of an urgent call or the need to maintain communications via telecommunications networks, the Internet, etc.), the employee cannot use the specified time at his own discretion. Thus, the time spent performing work duties (in particular, at home on a day off) refers to working time (Article , Labor Code of the Russian Federation). It follows from this that the use of employee labor in the form of duty at home during non-working hours is special case attraction to work on weekends or holidays ().
Based on the above, performing work in the form of duty at home on a day off is possible according to general rules attracting employees to work on days off. In general, such involvement is possible only with the consent of the employee ().
The procedure for payments for work on weekends and holidays, including in the form of duty, is established in the Labor Code of the Russian Federation.
At the same time, it is not necessary to follow the procedure for attracting employees to work on a day off, if for the employee this day, in accordance with the duty schedule, is not a day off, and days off are provided to him on other days of the week. In this case, Saturday or Sunday are working days for the employee and are paid at the usual rate.
Similar explanations on the procedure for attracting employees to work at home on non-working days are given in and.
For more information on how to attract an employee to be on duty in an organization on a day off, see How to attract an employee to be on duty in an organization on a day off. Duty is not provided for by the employee's job responsibilities.
Working on a weekend while on a business trip
What documents do I need to submit for employment on weekends and holidays during a business trip?
If necessary, the employer has the right to involve an employee on a business trip to work on a weekend or a non-working holiday. Such engagement should be formalized in the general manner, that is, obtain consent if necessary and issue an order. In your timesheet for work on a weekend or holiday, reflect:
- letter code “РВ” or digital code “03” (when using unified report forms);
- own designation (when using a self-developed report card form).
If the employer gave the employee instructions about the duration of work on a day off (non-working holiday), then in the timesheet indicate the specific number of hours worked on such a day, and accordingly, pay only for these hours at an increased rate. If the order for work on a day off does not indicate the specific number of hours that the employee had to work on a day off (non-working holiday), then do not indicate the number of hours worked in the time sheet, since it is assumed that the employee worked the whole day, and pay for the work at an increased rate for the whole day.
It should be remembered that instead of increased pay for work on a weekend or non-working holiday, an employee has the right to claim time off and pay for work on a weekend or non-working holiday in the usual amount.
Such conclusions follow from the totality of the provisions of the Labor Code of the Russian Federation, the Regulations approved by
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 the 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 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 when medical workers of medical organizations perform 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 the general rules of 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 (, Labor Code of the Russian Federation). Work on weekends and non-working holidays is prohibited, except in cases provided for by the Russian Federation (part one of the Labor Code of the Russian Federation). In some cases, it is allowed to be hired to work on a weekend or a non-working holiday, but this is possible either with the written consent of the employee, or in the event of emergency circumstances specified in part three of the 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 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.
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? The work is done in excess of monthly norm 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 are in accordance with this Code, other federal laws and other regulatory legal acts of the Russian Federation. Federations refer to working hours.
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 under another employment contract within the same institution during free time from the main job. 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.
"Personnel officer. Labor law for personnel officers", 2012, N 7
LEGAL REGULATION OF DUTY WITHIN LABOR RELATIONS
It should be noted that currently in the Labor Code of the Russian Federation there is no such legal category as duty. However, in Soviet times, duty was regulated at the level of a by-law, which is the Decree of the Secretariat of the All-Union Central Council of Trade Unions dated April 2, 1954 N 233 “On duty at enterprises and institutions.” As of today, there is no normative legal act repealing this Resolution, therefore it continues to be in force to the extent that does not contradict the Labor Code of the Russian Federation.
In accordance with this act, duty is defined as overtime in excess of the established working hours, which is not recognized overtime work and is not subject to increased pay, but is compensated by “time off”, since while on duty employees do not perform their direct job responsibilities, but perform actions in favor of the employer aimed at resolving current urgent issues of an organizational nature, as many scientists have pointed out: A.V. Yarkho, A. A. Klyuev, Yu. N. Korshunov, R. Z. Livshits, M. S. Rumyantseva, K. N. Gusov, V. N. Tolkunova, E. Gershanov, V. Nikitinsky. Some experts in the field of labor law still hold a similar position.
An analysis of modern regulatory legal acts in the field of working time showed that the rules for attracting to duty are established by law only in relation to certain categories of workers. As an example, we can cite: Federal Law of August 22, 1995 N 151-FZ “On emergency rescue services and the status of rescuers” (as amended on November 25, 2009); Order of the Ministry of Railways of the USSR dated September 18, 1990 N 8TsZ "On the introduction of features for regulating working time and rest time for certain categories of railway and metro workers directly related to ensuring the safety of train traffic and passenger service" (as amended on March 5, 2004); Letter from the Ministry of Education and Science of Russia dated October 26, 2004, etc.
The concept of "duty"
The concept of “duty” is used in regulatory legal acts in several meanings.
Firstly, duty may involve the employee performing his usual job duties within the framework of his profession, qualification, position within the work shift established for him. In this case we're talking about on duty within the framework of an employment contract. As I.V. Alenina rightly notes, “the term “duty” is used here due to the established traditions of legal regulation.” For example, in the legislation, duty refers to the activities of medical workers, security guards, workers on watch on river and sea transport, members of emergency teams of public utility enterprises, etc. This kind of duty does not require any specific regulation; it is the employee’s normal working time, which is taken into account and is paid in accordance with the generally established procedure.
Secondly, duty may involve the performance of work not related to the employee’s labor function, aimed at resolving current urgent issues of an organizational nature. The time of this duty is not recognized as working time, but is compensated by time off. This type of duty, as noted, is regulated by a single regulatory act of 1954.
The Resolution of the Secretariat of the All-Union Central Council of Trade Unions states that workers can be called to duty only in exceptional cases and in agreement with the trade union committee. What is considered “exceptional cases” is not specified in the Resolution. This document defines functions that should not be assigned to duty officers.
These include: work on security of the facility, checking passes at the entrance and exit from the organization, receiving mail. But nothing is said about the functions that should be assigned to workers.
It seems that these should be functions to monitor the maintenance of order in the organization and to promptly resolve emerging urgent issues that are not within the scope of the employee’s job responsibilities, in the following cases:
Carrying out work, the suspension of which is impossible due to production and technical conditions;
Carrying out work necessitated by the need to serve the population, as well as urgent repair and loading and unloading work;
The need to perform unforeseen work, on the urgent implementation of which the future normal operation of the organization as a whole or its individual structural divisions, or an individual entrepreneur depends.
Even though the employee does not perform his job duties while on duty, it must be included in working hours. With a different approach, duty is considered as overtime work.
In passing, I would like to note that the Resolution of the Secretariat of the All-Union Central Council of Trade Unions of 1954 cannot currently be recognized as a legal act, since it was adopted by a public body - the All-Union Central Council of Trade Unions. Therefore, this act should be officially repealed, and the rules governing duty should be included in the Labor Code of the Russian Federation, since the need to organize duty is an objective reality and they need legal regulation.
In the legal literature, the opinion was expressed that the rules on duty should be developed at the level of a local act, which should define the concept and goals of duty, the procedure for attracting workers to duty, the rights and responsibilities of the person on duty, compensation for duty.
However, it seems that in order to uniformly apply duty in practice, it is advisable to legalize the rules governing it precisely at the level of the Labor Code of the Russian Federation, while at the same time recognizing the Resolution of the Secretariat of the All-Union Central Council of Trade Unions as having lost legal force.
In this regard, it is a practical necessity to introduce a special rule on duty into the Labor Code of the Russian Federation.
I suggest...
Make changes to the Labor Code of the Russian Federation
The Labor Code of the Russian Federation should be supplemented with a special article “Duty in an organization” with the following content:
Duty is the presence of an employee in an organization by order of the employer before or after the end of the working day, as well as on weekends and holidays, in order to ensure control over order in the organization and to promptly resolve urgent issues that arise that are not part of the employee’s normal duties, in cases: carrying out work, the suspension of which is impossible due to production and technical conditions; work caused by the need to serve the population, as well as urgent repair and loading and unloading work; the need to perform unforeseen work, on the urgent implementation of which the future normal operation of the organization as a whole or its individual structural divisions, or an individual entrepreneur depends.
The involvement of employees on duty cannot exceed once a month, unless otherwise established by this Code, federal laws and other regulatory legal acts of the Russian Federation.
It is not allowed to involve pregnant women, workers under the age of 18, or other categories of workers on duty in accordance with this Code and other federal laws. The involvement of disabled people and women with children under three years of age on duty is permitted only with their written consent and provided that this is not prohibited for them due to health reasons in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation. At the same time, disabled people and women with children under three years of age must be informed, upon signature, of their right to refuse to participate in administrative duties.
The duration of duty or work together with duty cannot exceed the normal length of the working day (shift) established for this category of workers.
In the case of being assigned to duty after the end of the working day, attendance at work is postponed to a later time, so that the duration of duty cannot exceed the normal duration of the working day (shift).
It is not allowed to be brought to duty immediately after a shift that the employee has fully worked, as well as to be brought to work immediately after the end of duty. Between duty and work shift the employee must be provided with rest time, as a general rule, no less than twice the duration of the work shift.
Involvement in duty on weekdays is included in working hours and is paid in the amount of average earnings. Duties on weekends or non-working holidays, night time are compensated according to the general rules established by this Code.
Specific amounts of remuneration for duty are established by a collective agreement, a local regulatory act adopted taking into account the opinion of the representative body of workers, and an employment contract.
Bibliography
1. Yarkho A.V. Rest time. M.: Profizdat, 1987.
2. Klyuev A. A., Yarkho A. V. Trade union on control over working time and rest time (legal issues). M.: Profizdat, 1957.
3. Korshunov Yu. N., Livshits R. Z., Rumyantseva M. S. Soviet labor legislation. M.: Profizdat, 1976. 512 p.
4. Gusov K.N., Tolkunova V.N. Labor law of Russia: Textbook. 2nd ed., additional, rev. M.: Lawyer, 2000. 480 p.
5. Gershanov E., Nikitinsky V. Basic issues of Soviet labor legislation. M.: Profizdat, 1966. 256 p.
6. Alenina I.V. Organization of duty at enterprises // Personnel decisions. 2006. N 3.
7. Shishkina K. V. Duty in an organization: some problems of legal regulation // Bulletin of the Udmurt University: Electronic scientific journal. 2010. Series 2: Economics and law. Vol. 4. pp. 133 - 137. URL: vestnik. udsu. ru.