Rest time according to the labor code. Rest time according to the Labor Code (nuances)

Plan.

Introduction

1.1 Rest time. Concept, sources, signs

1.2 Breaks during working hours.

1.3Daily (between shifts) rest

2.1 Regular annual leave

2.2 Annual additional paid leave

Conclusion

List of used literature

Introduction.

What is rest?

Rest is spending some time without regular activities or work to recuperate. Dahl gives the following meaning to the word “rest”, i.e. do nothing, tired of sitting, lying or standing, gathering strength. So, rest is free time person and he has the right to decide how to carry it out. The right to rest is a natural and inalienable human right. Article 37 of the Constitution of the Russian Federation provides that those working under an employment contract are guaranteed the duration of working hours, weekends and holidays established by federal law. holidays, annual paid vacation. Therefore, this right is constitutional. The Labor Code of the Russian Federation enshrines the right to rest as one of the principles legal regulation labor relations and directly related relations (Article 2 of the Labor Code of the Russian Federation). In addition, Article 21 of the Labor Code of the Russian Federation names the right to rest as one of the basic rights of an employee.

The right to rest is certainly one of the most famous international rights. Even those who are very far from not only from personnel work, but also from work in general. And this is not surprising, given the fact that, according to international standards, this right is granted not only to those working under an employment contract, but to all people without exception. International labor standards offer us the right to rest both in its pure form and by revealing it through a number of elements and additions.

According to the Universal Declaration of Human Rights (UN, 1948; hereinafter referred to as the Declaration), the International Covenant on Economic, Social and Cultural Rights (UN, 1966; hereinafter referred to as the Covenant) and the Conventions International Organization Labor (ILO), Russians, like citizens of other countries, are guaranteed the following rights:

The right to a reasonable limitation of working hours (clause “d” of Article 7 of the Covenant);

Right to limit duration working week up to 40 hours (Article 1 of ILO Convention No. 47);

The right to a weekly rest for every seven days of at least 24 consecutive hours for industrial enterprises (Part 1, Article 2 of ILO Convention No. 14) and at least 24 hours for trade enterprises and institutions (Part 1, Article 6 of ILO Convention No. 106 );

The right to remuneration for holidays (clause “d” of Article 7 of the Covenant);

The right to paid periodic leave (Article 24 of the Declaration, paragraph “d” of Article 7 of the Covenant), equal to at least six, and for persons under 16 years of age - twelve working days after continuous work lasting one year (Parts 1 and 2 Article 2 of ILO Convention No. 52).

Rest time is indirectly regulated with the help of other rules on limiting the duration of working hours contained in ILO Conventions No. 1 “On Working Time” (1919), No. 30 “On Working Time in Commerce and Establishments” (1930), No. 47 “On the forty-hour working week” (1935), No. 175 “On part-time work” (1994), as well as in industry conventions on shortened working hours. However most of these conventions are either outdated and not applied or are awaiting revision. Moreover, none of them has been ratified by Russia. also in international acts on this moment There are no independent rules about breaks during the day.

One significant nuance should be noted. The Constitution and the Code speak about the right to rest exclusively in relation to persons working under an employment contract (employees). However, the Declaration and the Covenant guarantee this right to everyone - and therefore to those who work under civil contracts, and even to those who work exclusively for themselves. From ILO acts, the rules on the right to weekly rest in trade and institutions, a forty-hour work week and annual paid holidays are also quite applicable to such workers.

Russian labor law provides for the following types of rest:

1. Breaks during the working day;

2. Daily (between shifts) rest;

3. Vacations:

Another annual leave;

Additional vacation.

Breaks during working hours .

Breaks during the working day (shift) can be provided for various purposes.

Firstly, there is a rest and food break, better known as a lunch break. To maintain strength and health, each employee needs a break for rest and nutrition. Such a break cannot be more than 2 hours and less than 30 minutes. That is, the employer cannot set a meal break of 15 minutes, citing the fact that this time is quite enough.

As a rule, a lunch break is provided 4 hours after the start of work. But this is not mandatory rule: The lunch break can be set 3 hours after the start of work, or it can start after 5 hours. The start time of such a break and its duration must be specified in the internal labor regulations, which apply to all employees of this organization, or determined in an agreement between the employee and the employer. By the way, internal labor regulations should be available for review.

During a lunch break, an employee can leave work - have a snack in a cafe, go home, or you can go about your business at the workplace. He uses this time at his own discretion and is not obliged to perform labor functions. This break in work time does not turn on.

If the working day lasts from 8:00 to 17:00, with a lunch break from 12:00 to 13:00, then the employee will write on the time sheet that he worked 8 hours. If a shift lasts from 8:00 to 20:00 with a lunch break of 1 hour, then the employee will actually work 11 hours.

If an employee is prohibited from leaving his place during rest and meals workplace, then such a break should be included in working hours and paid accordingly.

When production (work) conditions do not allow for a lunch break, the employer is obliged to provide the employee with the opportunity to rest and have a snack during working hours (for example, install in a specially designated room the equipment necessary for preparing and heating food). It must be remembered that the list of such jobs (where it is impossible to provide a break for rest and food), as well as places for rest and meals, are established by the internal labor regulations. That is, this issue must be resolved officially by the employer himself. Second important point– duration work shift does not decrease by the time spent eating and resting, i.e. in fact, this time is considered working time and is subject to payment.

Secondly, these are special breaks for heating and rest.

There are also special breaks during the working day (shift), which are determined by the very nature of the work - the technologies used, the organization of work. Such breaks from work are provided according to the rules internal regulations organizations, they also determine the duration of breaks and the procedure for their provision. This type of break general rule during working hours is not included and is not paid, unless another rule is established in the internal labor regulations or other local act accepted by the employer.

The purpose of such a break is to provide the employee with additional time for rest in connection with the specifics of the work functions performed. Examples of such breaks are:

1. breaks for gymnastics;

2. breaks provided to workers working at a forced rhythm (those who work on the assembly line);

3. breaks for professional computer users (depending on category labor activity and the level of load for a work shift when working with a personal computer, the total time of regulated breaks is established);

4. break provided to dispatchers, managers air traffic at the control panel equipped with a video display terminal - after two hours of continuous work - they are given a break of at least 20 minutes (Clause 11 of the Regulations on the peculiarities of the working time and rest time of workers performing air traffic control civil aviation RF, approved Order of the Ministry of Transport of Russia dated January 30, 2004 N 10).

5. for intercity transportation, after the first 3 hours of continuous driving, the driver is given a special break to rest from driving on the road for at least 15 minutes; subsequently, breaks of this duration are provided no more than every 2 hours. In the event that the time for providing a special break coincides with the time for providing a break for rest and food, a special break is not provided (Order of the Ministry of Transport of the Russian Federation dated August 20, 2004 N 15 “On approval of the regulation on the peculiarities of the working time and rest time for car drivers”).

6. employees of the tobacco industry are provided with special breaks in accordance with Article 109 of the Labor Code of the Russian Federation, that is, the duration and procedure for providing such breaks are established by the internal labor regulations (Order of the Ministry of Agriculture of the Russian Federation dated February 10, 2003 N 51 “On approval of the Rules for the protection labor in the tobacco industry");

7. workers engaged in the production of alcohol, vodka, cognac, wine, beer and juices are provided with special breaks in accordance with Article 109 of the Labor Code of the Russian Federation (Order of the Ministry of Agriculture of the Russian Federation dated June 20, 2003 N 892 “On approval of labor protection rules in the production of alcohol, vodka, cognac, wines, beer and juices").

The above-mentioned special breaks, determined by the technology and organization of production and labor, should be distinguished from special breaks for heating and rest, which are provided, if necessary, to the following employees:

Working outdoors during the cold season;

Working in closed, unheated rooms;

Loaders involved in loading and unloading operations;

Other employees, if necessary.

Special breaks for warming up and rest are included in working hours and are paid on an equal basis with the actually worked (working) time. The employer is obliged to provide premises for heating and rest of employees.

Daily (between shifts) rest.

Daily (between shifts) rest – rest after finishing a working day or shift.

For all categories of workers, a certain duration of daily work or shift must be established. Accordingly, the duration of daily rest depends on the length of working hours during a working day or shift. And the length of the working day depends on the length of working hours - normal, shortened or part-time.

Thus, if an employee works normal working hours, which is 40 hours a week, the length of his working day will, as a rule, be 8 hours 15 minutes. The remaining time will be your daily rest. Accordingly, with a 6-day working week, the length of the working day decreases (it can be 7 hours 5 days a week and 5 hours on the 6th working day), and the daily rest time increases. In fact, the law allows the employer to independently establish the length of the working day in the internal labor regulations, collective agreement, agreement, employment contract. The main thing is that the employer observes a maximum working time of 40 hours during the week.

With a reduced working time (it can be 24 hours, 35 hours, 30 or 36 hours a week), the working day can be six, five, or even less hours.

The Labor Code of the Russian Federation clearly regulates the duration of daily work (shift):

If the employee is between 15 and 16 years of age, then the working day (shift) cannot be more than 5 hours;

If the employee is between 16 and 18 years of age, then the working day (shift) can be no more than 7 hours;

if the employee combines during school year work with training in a general education institution, primary or secondary educational institution vocational education, and he is from 14 to 16 years old, then the working day cannot exceed 2.5 hours, and if he is from 16 to 18 years old, then 4 hours;

The employee may be issued a medical certificate indicating that specific duration work shift that does not provide negative impact on his health;

If an employee works in harmful, dangerous working conditions and a reduced working time is established for him, then the maximum duration of work in one day (shift) will be: for a 36-hour work week - 8 hours, for a 30-hour work week or less - 6 hours.

This means that if the employee is 15 years old, the employer does not have the right to set him a working day lasting 6 hours or even 5 hours 15 minutes. The only exceptions are employees working in harmful and (or) dangerous working conditions, for whom the duration of daily work (shift) may be increased. But for this, the employer must comply with a number of conditions: firstly, such an increase in the duration of the working day (shift) must be provided for only in the collective agreement, secondly, the weekly working hours must be observed, and thirdly, the hygienic standards of working conditions.

Inter-shift rest, as the very name of this type of rest time suggests, is a rest between shifts. As follows from Article 103 of the Labor Code of the Russian Federation, only those employers whose duration of the production process exceeds the permissible duration of daily work are allowed to introduce shift work, as well as for the purpose of more effective use equipment, increasing the volume of products or services provided. The duration of the shift and rest between shifts are regulated in the shift schedule, which is adopted taking into account the opinion of the trade union organization and with which employees must be familiarized no later than one month before its introduction.

2.Vacation

2.1.Next annual leave.

Another annual vacation. Currently in Russian legislation there is no general universal definition vacation. This is due to the multifunctional nature of this phenomenon, the difference in legal status subjects who have the right to receive it, differences in the grounds and procedure for its provision.

Thus, it cannot be said that vacation is a phenomenon inherent exclusively in labor relations. Education legislation provides for the possibility of granting academic leave to students of professional educational institutions; Lawyers, notaries, military personnel, as well as persons undergoing military training have the right to leave. military service on call; Persons serving criminal sentences are not deprived of this right.

types of vacations

Vacations can vary special purpose: some involve the implementation of the right to rest; others pursue the goal of restoring the employee’s health; others are aimed at carrying out state or public duties, others are provided for child care, etc.

The features that unite all types of vacations are the inextricable connection with professional activity, securing the right to leave and the rules for its provision in the relevant regulations, exemption from work duties for several days in a row, maintaining the place of work (position) for the entire specified period.

Can this type of rest time, such as vacation, last only one day? Vacation has one feature that distinguishes it from all other types of rest time - its duration. Traditionally, in the science of labor law, vacations are defined as “time of continuous rest for several days in a row.” Today, from a formal legal point of view, the legislation does not have a legal definition of vacation as a long period of time; minimum duration of leave without saving wages is also not established by law. From this we can conclude that at present there are no rules in domestic labor law that directly or indirectly prohibit the use of short-term (one-, two-, three-day) leave in such cases.

All employees, regardless of the organizational and legal form of the enterprise, are provided with annual leave in accordance with the established procedure with preservation of their place of work (position) and salary. Duration of annual paid leave - 28 calendar days. It should be noted that in the previously effective Labor Code of the Russian Federation, the length of vacation was 24 working days. Essentially, the number of vacation days remained the same (based on a six-day working week), since non-working holidays falling during the vacation period are not included in the number of calendar days of vacation and are not paid (Article 120 of the Labor Code of the Russian Federation). However, those workers who have a five-day working week, in this case lose several days of rest compared to the norm of the Labor Code of the Russian Federation. By the way, parts 1 and 2 art. 2 of ILO Convention No. 52 establishes a minimum of six working days, and for persons under 16 years of age - 12 working days.

Some employers, especially non-state commercial organizations, often violate the requirements of the Labor Code of the Russian Federation, providing their employees with leave of shorter duration or not providing it at all (if you want to earn good money, work without vacation). Of course, such actions are illegal and can be appealed to the federal labor inspectorate, the prosecutor's office, or directly to the court.

Annual basic paid leave lasting more than 28 calendar days (extended) is allowed to certain categories of employees in accordance with the requirements of the Labor Code of the Russian Federation and other federal laws:

For teaching staff of an educational institution - on the basis of Article 334 of the Labor Code of the Russian Federation;

For workers under 18 years of age - on the basis of Article 267 of the Labor Code of the Russian Federation;

For disabled people - on the basis of Article 23 of the Federal Law of the Russian Federation “On social protection disabled people in Russian Federation»;

Federal civil servants - in accordance with the article of the Federal Law “On the Fundamentals civil service Russian Federation".

The right to annual paid leave depends on length of service, which includes:

actual time worked;

· time when the employee did not actually work, but he retained

· place of work (position), including the time of annual paid leave;

· time of forced absenteeism in case of illegal dismissal or suspension from work and subsequent reinstatement to the same place;

· other periods of time provided for by the collective agreement, employment contract or local normative act organizations.

When calculating the length of service giving the right to annual basic paid leave, the following points are not taken into account:

1. the time the specialist is absent from work without good reasons, including due to his removal from work in the following cases:

appearing at work under the influence of alcohol, drugs or toxic substances;

failure to undergo training and testing of knowledge and skills in the field of labor protection in accordance with the established procedure;

failure to undergo a mandatory preliminary or periodic medical examination in accordance with the established procedure;

identifying, in accordance with the medical report, contraindications for the specialist to perform the work provided for in the employment contract;

requirements from bodies and officials authorized by federal laws and other regulatory legal acts;

in other cases provided for by federal laws and other regulatory legal acts;

time of maternity leave until the child reaches established by law age;

2. the time of vacations granted at the request of the employee for more than seven calendar days without pay.

In accordance with the requirements of Article 122 of the Labor Code of the Russian Federation, leave for the first year of work is granted to employees after six months of continuous work in the organization; previously, such a period was calculated as eleven months of work (Article 71 of the Labor Code of the Russian Federation). By agreement of the parties, paid leave can be granted to a specialist even before the expiration of six months of employment. Previous legislation did not make such a concession to the employee. By the way, parts 1 and 2 of Art. 2 of ILO Convention No. 52 establishes the right to such leave only after one year of continuous work. Before the end of the six-month period of continuous work, leave at the request of the employee may be used:

for women - before maternity leave or immediately after it;

employees under 18 years of age;

employees who adopted a child under three months of age;

Leave for the second and subsequent years of employment can be received by an employee at any time of the year in accordance with the order of granting leave established in the organization. This priority is regulated by the vacation schedule, approved by the employer, taking into account the opinion of the elected trade union body no later than two weeks before the start of the holiday. calendar year. The specialist must be notified about the time of vacation no later than two weeks before it starts. In cases provided for by federal laws, certain categories of employees are given annual paid leave at their request at a time convenient for them. Such employees include:

workers under 18 years of age;

veterans, including labor veterans;

participants of the Great Patriotic War;

Heroes Soviet Union, Heroes of the Russian Federation and full holders of the Order of Glory;

persons awarded the “Honorary Donor” badge;

persons who received diseases associated with radiation exposure as a result of the disaster at the Chernobyl nuclear power plant and other accidents at nuclear facilities.

Separately, the Labor Code of the Russian Federation establishes the right of a husband to use his annual leave while his wife is on maternity leave, regardless of the time of continuous work in this organization.

In accordance with Article 124 of the Labor Code of the Russian Federation, annual leave must be postponed or extended:

in case of temporary disability of the employee;

when a specialist performs state duties;

in other cases provided for by labor legislation.

Annual leave by agreement between the employer and employee is transferred to another period if:

the employee has not been paid on time for the upcoming vacation;

the employee was not notified within the prescribed period about the start time of the vacation.

In exceptional cases and only with the consent of the employee, it is allowed to transfer the vacation to the next working year. However, the leave must be used no later than 12 months after the end of the year for which it is granted.

It is prohibited to deprive a person of the holiday provided for by law for two years in a row, as well as to delay leave for persons under 18 years of age and those who have the right to additional recovery period due to harmful working conditions.

Annual paid leave, by agreement of the parties to the employment contract, can be divided into parts, and at least one part must include at least 14 calendar days.

Article 125 of the Labor Code of the Russian Federation provides that recall of an employee from vacation is allowed only with his consent. In other words, the employer can take the initiative - offer the specialist to leave the vacation early, and the decision on this issue is made by the employee himself. With the consent of the latter, the part of the leave unused due to force majeure circumstances must be provided to the employee at a convenient time during the current working year or added to the leave for the next year.

Revocation from vacation has not only legal, but also financial consequences. Accounting produces:

– recalculation of vacation pay in accordance with the actual number of days spent on vacation;

– calculation of wages from the first day of work in accordance with the forms and remuneration system accepted in the organization;

– deduction from the employee of paid vacation pay for the unused part of the vacation according to a scheme agreed upon with him (the amount, in whole or in part, goes towards accrued wages for the time worked or is returned by the employee to the organization’s cash desk).

At the written request of the employee, part of the vacation exceeding 28 calendar days can be replaced by monetary compensation in accordance with Article 126 of the Labor Code of the Russian Federation.

Replacement of vacation with monetary compensation is not allowed:

pregnant women;

employees under the age of 18;

workers engaged in heavy work, work with hazardous or dangerous conditions labor.

Article 127 of the Labor Code of the Russian Federation regulates in more detail the issues of granting leave or compensation for it upon dismissal of an employee, compared to the Labor Code of the Russian Federation. Now the worker has the right to choose - to quit on the day the employment relationship is terminated, or to demand the provision of unused vacation with subsequent dismissal. The second option is preferable for the employee, since monetary compensation will still be paid (the difference will only be in the name, and not in the amount), and dismissal after a vacation increases the length of service (albeit not by much).

For all persons who have a part-time job, annual paid leave for the part-time job is given simultaneously with leave for the main job or is replaced by compensation for unused leave upon dismissal. According to Article 286 of the Labor Code of the Russian Federation, if in a part-time job the duration of a specialist’s annual paid leave is less than the duration of leave at the main place of work, the employer, at the request of the employee, provides him with leave without pay for the corresponding duration.

2.2.Annual additional paid holidays.

Annual additional paid holidays. Holiday legislation for a long time developed through differentiation, and this presupposed the inevitable existence, in addition to the main one, of additional leaves. The reason was that the duration of the main leave was too short (12, and in 1968 - 15 working days). There were about 60 types of additional leave.

Additional leaves are established and provided either in connection with the special nature of the work and working conditions (compensatory), or as an incentive measure (incentive). Article 116 of the Labor Code of the Russian Federation establishes the following additional holidays:

specialists engaged in work with harmful and (or) dangerous working conditions;

employees whose activities are of a special nature;

employees who have irregular working hours;

workers living in the Far North and equivalent areas;

in other cases provided for by federal laws.

Resolution of the State Committee for Labor of the USSR and the Presidium of the All-Union Central Council of Trade Unions “On approval of the list of industries, workshops, professions and positions with hazardous working conditions, work in which gives the right to additional leave and a shortened working day” dated October 25, 1974 No. 298/P-22 (with subsequent amendments and additions) additional leaves of 6 to 36 working days are established, depending on the degree of harmfulness of working conditions.

The right to additional paid leave is available to employees whose professions and positions are mentioned in the relevant sections of the above list, regardless of which industry National economy they are connected. Moreover, the employer does not have the right to limit or refuse to provide additional leave to those included in the list. On the other hand, if previously the employer could not expand the circle of people taking additional leave for work in specific conditions and increase the duration of these leaves compared to the list, now there are no such restrictions. The list of jobs, professions and positions associated with activities in hazardous conditions, and the duration of additional leave for each of them, as a rule, are given in the collective agreement.

Additional leave for the special nature of work (Article 118 of the Labor Code of the Russian Federation) may be granted to certain categories of employees, the list of which is approved by the Government of the Russian Federation. The Government of the Russian Federation also determines the minimum duration of such leave and the conditions for its provision.

Employees who work irregular working hours have the right to additional paid leave of at least three calendar days. In the event that such leave is not provided, overtime in excess of normal working hours, with the written consent of the employee, is compensated as overtime work (Article 119 of the Labor Code of the Russian Federation).

Persons working in the Far North and equivalent areas, in accordance with Articles 116 and 321 of the Labor Code of the Russian Federation, in addition to other leaves established by law, are given an additional annual paid leave of duration:

24 calendar days - for workers of the Far North;

16 calendar days - for workers in equivalent areas.

As for other cases of providing additional paid leave provided for by other federal laws, here it is first of all necessary to mention citizens exposed to radiation as a result of the accident at the Chernobyl nuclear power plant (RF Law of June 18, 1992 No. 3061-1). In accordance with paragraph 9 of Article 14 of this law, such persons have the right to additional paid leave of 14 calendar days.

Additional paid holidays are also provided in other federal laws RF. Thus, in accordance with paragraph 14 of Article 2 of the Federal Law “On social guarantees for citizens exposed to radiation due to nuclear tests at the Semipalatinsk test site" dated January 10, 2002 No. 2-FZ, specified persons who received a total effective radiation dose exceeding 25 cSv (rem) are guaranteed additional paid leave of 14 calendar days.

In accordance with Article 120 of the Labor Code of the Russian Federation, the amount of additional leave from February 1, 2002 is calculated in calendar days and is not limited to the maximum limit. When determining the total duration of annual paid leave, additional paid leave is summed up with the annual main paid leave. Non-working holidays falling during the vacation period are not included in the number of calendar days of vacation and are not paid.

Conclusion.

In this work, I tried to consider in detail most of the issues related to rest time. Every worker must know exactly his rights and demand their implementation from the enterprise administration. Over time, the circle of persons entitled to certain benefits (additional leave) expands. Not all of them know about this. Therefore, I believe that the employer, and first of all the trade union, must explain to the employee his rights and obligations in accordance with the current legislation. It is also necessary to improve the legal culture of the population through means mass media, carry out explanatory work.

List of used literature.

1. Constitution of the Russian Federation

2. Labor Code of the Russian Federation

3. Federal Law “On social guarantees for citizens exposed to radiation as a result of nuclear tests at the Semipalatinsk test site” dated January 10, 2002 No. 2-FZ

4. Magazine “Human Resources Directory” No. 9 2006, Chernyaeva D.V.

5. Commentary on the Labor Code of the Russian Federation

Magazine "Human Resources Directory" No. 9 2006, Chernyaeva D.V.

Federal Law “On social guarantees for citizens exposed to radiation as a result of nuclear tests at the Semipalatinsk test site” dated January 10, 2002 No. 2-FZ

The concept of rest time and what belongs to its types

Speaking about the concept of “rest time,” the legislator defines it as time periods during which the employee is not obliged to perform his labor functions and which he has the right to freely dispose of.

Accordingly, only the duration and procedure for providing rest time are normatively determined, but not how a person should spend it.

In addition to the actual rest to replenish expended strength, this concept also includes specific cases when there is a need for release from work (in particular, pregnancy, death close relative, disease).

The types of rest time are given in Art. 107 Labor Code of the Russian Federation:

• Breaks within the working day or shift. In Art. 108 of the Labor Code of the Russian Federation talks about a lunch break, which is not subject to accounting as working time, and its duration is limited - from 30 minutes to 2 hours. Employers are free to choose a period within the specified framework, as well as a specific time of provision.

  At the request of the employer, such a break can be divided into several parts, for example, 2 times for 30 minutes, which is fixed in the local act of the organization.

  Note! In addition to lunch breaks, this category includes special breaks due to special working conditions, for example for heating.

• Daily rest. Not regulated by the Labor Code of the Russian Federation.
• Weekly rest (weekends). Cannot be less than 42 consecutive hours.
• Holidays. Listed in Art. 112 Labor Code of the Russian Federation.
• Vacation. Each employee has the right to go on annual leave (as a general rule - for 28 days). During this period, the person retains his position and average earnings.

Rest time for certain categories of workers

Special rules for organizing the work process and rest time are established by labor legislation for the following categories of employees:

• persons who need additional support due to a socially weak position (for example, pregnant women, disabled people, minors);
• subjects of certain specialties that require a special nature of work (for example, drivers, teachers).

Examples of regulation in the first case are the provisions of the Labor Code of the Russian Federation, which impose a categorical ban on recalling pregnant women and minor workers from vacation, as well as replacing their vacation with monetary compensation.

Also, these persons have the right to use vacation before six months have elapsed from the date of their employment in the company.

Disabled people, as well as women with children under 3 years of age, can be recruited to work on holidays and weekends only if they comply with special conditions specified in Art. 113 Labor Code of the Russian Federation.

As for persons with a special nature of work, according to Government Decree No. 877 of December 10, 2002, the time of their work and rest is regulated by federal executive bodies in agreement with the Ministry of Social Development and the Ministry of Health of the Russian Federation.

In relation to persons working in educational institutions, the corresponding provision was approved by order of the Ministry of Education and Science dated March 27, 2006 No. 69, which states the need rational organization their work process. Teachers have extended annual leave, the specific duration of which depends on the position and organization, as discussed in Chapter. 52 Labor Code of the Russian Federation.

Annual leave: subtleties of providing a new employee

The law requires any employer to approve a schedule of priority and time for providing employees with paid leave no later than December 17 of the previous year.

What to do in a situation where a new employee has taken up a position after the vacation schedule has been approved?

As a general rule, a subject receives the opportunity to take paid leave after six months of work. There are no regulatory requirements for registering leave for a new employee in such cases.

In practice, the following methods are used:

• No changes are made to the existing schedule, and the basis for granting leave is the employee’s statement, in which he expresses his wishes regarding the duration and start date of the rest.

Important! This option is convenient, and here's why. If an employee takes up a position in the middle of the year, there is a chance that he will not want to take advantage of vacation this year. This means that the rest period can be postponed to the next year and will be taken into account in the new schedule.

• Corresponding changes are made to the schedule. The law does not establish the procedure for reflecting changes. Most often, an appendix to the vacation schedule is drawn up, which provides information about the new employee’s vacation. Changes can be made both when a person is admitted to the organization and when he or she acquires the right to use rest time.

Note! After 6 months of performing work duties, the employee has the right to use the entire vacation, that is, all 28 days, unless it is decided to spend only part of the vacation time.

Other features of registration of annual leave

Minimum annual rest time of the Labor Code of the Russian Federation sets at 28 days. It is permissible to divide it into parts, one of which is mandatory must be at least 14 days.

Note! Official holidays that fall during the vacation are not taken into account in its duration.

As a general rule, the law does not require an employee to write a leave application. Regardless of the application, rest time is distributed according to the schedule.

If the application is written by an employee to reschedule the vacation periods included in the schedule, or if there is no rest period for the new employee in the schedule (see above), it is important to carefully consider the wording in it:

• if the application indicates only the starting date of the vacation and its duration (from March 1 to 14 days), the vacation time will be shifted by the number of holidays falling during this period;
• if specific dates are indicated (from February 20 to 25), the duration of the vacation used is calculated minus the holidays included in it.

If the employee has no desire to use the vacation time, only a one-time transfer to the next year is allowed.

Important! It is not possible to replace unused vacation days with monetary compensation if the vacation does not exceed 28 days. If it was not used in the current and next year, the only opportunity to receive compensation for it will be upon dismissal.

If a person works part-time in several organizations, paid leave for the year is provided exclusively simultaneously to ensure the employee’s complete rest.

Vacation without pay: nuances

If the employee has valid reasons, e.g. family character, he has the right to apply to the employer for unpaid rest time.

Important! Provisions of Art. 128 Labor Code of the Russian Federation in general case they talk about the employer’s right to let the employee go on such leave. That is, he can refuse if he does not consider the circumstances to be valid. However, at the initiative of the employer, the employee cannot be sent on such leave.

The Supreme Court of the Russian Federation, in paragraph 39 of the resolution of the plenum of March 17, 2004 No. 2, noted that unauthorized leave, including when the employer refuses to provide it, is grounds for dismissal for absenteeism.

Despite this, an unjustified refusal, if there are good reasons, may lead to court proceedings and even the recognition that the employee is right.

In particular, the ruling of the Nizhny Novgorod Regional Court dated March 11, 2008 No. 33-1243/2008 indicated the illegal nature of the plaintiff’s dismissal due to valid reasons for his absence from the workplace, as well as the illegality of the employer’s refusal to satisfy the application for leave submitted in advance.

The Labor Code of the Russian Federation lists the categories of employees to whom the employer is obliged to give unpaid leave, and the maximum duration of such leave (for example, for disabled people - up to 60 days a year).

Note! Unpaid leave of more than 14 days is not included in the length of service on which the subject’s right to annual paid leave depends. Accordingly, the period for providing paid leave is shifted.

Features of registration of leave with subsequent dismissal

Except in cases where the basis for dismissal is absenteeism or another guilty act, the employee has the right to submit an application to use the available leave before dismissal. Then the termination of the contract with the subject will occur on the last day of vacation.

Important! Providing this type of leave is the right of the employer, as noted by the Constitutional Court of the Russian Federation in its ruling dated January 25, 2007 No. 131-О-О. In case of refusal, the latter compensates the employee for all unused vacation time or allows him to take part of the vacation off and compensates for the remaining period. The right to compensation does not depend on the grounds for dismissal.

If an employee, despite the absence of the employer’s consent, goes on such leave without permission, this may result in dismissal for absenteeism.

For example, the Supreme Court of the Komi Republic, in ruling No. 33-5770AP/2012 dated December 17, 2012, refused to reinstate an employee at work because he left the place where he performed his work duties without waiting for the employer’s decision in response to his application for leave, and then returned to work. didn't show up. A similar position was reflected in the ruling of the Moscow City Court dated February 26, 2016 No. 33-6821/2016.

The type of leave in question is arranged as follows:

• If the vacation before dismissal coincides with the employee’s rest period noted in the vacation schedule, only his application for resignation at his own request is required. The main thing is that it is issued 2 weeks before last day vacation.
• If it does not match, the employee writes 2 statements at once: about dismissal and unscheduled leave. They can be combined into 1 document.

Rest time is periods outside of work functions, the types and duration of which are regulated by the legislator. Moreover, for some categories of employees, due to the nature of their work, special rules are provided. Selected species Rest time, in particular various vacations, are provided taking into account the nuances developed by law and practice.

The working hours, the procedure for providing days off and annual paid leave are determined by agreement between the employee and the employer - an individual. In this case, the length of the working week cannot be greater, and the duration of annual paid leave less than those established by this Code.

Commentary on Article 305 of the Labor Code of the Russian Federation

The legislator establishes the right, by agreement of the parties, to determine the work schedule and the procedure for providing the employee with rest time, in particular, days off and annual leave. This agreement is concluded between the employee and the employer - an individual.

The provisions of Chapter 15-16 of the Labor Code of the Russian Federation set general rules, and in general, the employee’s working conditions are determined by the employment contract. The legislator introduces only one provision that is mandatory for the parties when determining the work and rest regime, namely: the length of the working week should not exceed the maximum established, and the long annual paid leave should be less than established by the Labor Code of the Russian Federation.

Let us recall that according to Article 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 job responsibilities, as well as other periods of time that, in accordance with the legislation of the Russian Federation, relate to working time. Wherein normal duration working hours cannot exceed 40 hours per week, therefore, the working hours of employees working for employers - individuals, also cannot exceed 40 hours per week.

At the same time, the provisions of Article 92 of the Labor Code of the Russian Federation are also mandatory for employers - individuals: categories of workers for whom the labor legislation of the Russian Federation has established a reduced working time cannot be involved in work beyond this time (only in cases stipulated by the Labor Code of the Russian Federation).

The employment contract between the parties must stipulate working conditions, work and rest schedules. According to Article 100 of the Labor Code of the Russian Federation, the working time regime must provide for the duration of the working week and daily work (shift), the start and end time of work, the time of breaks in work, the number of shifts per day, the alternation of workers and non-working days and so on. In this regard, the legislator provides the parties with freedom, but the employee’s conditions cannot be worse than those established by labor legislation. The parties keep records of the employee’s working time in the manner specified in the employment contract.

Employer - individual must comply with all legal requirements regarding working hours and involving employees in overtime work, night work, weekends and non-working holidays established for certain categories of workers (for example, disabled people, women with children, etc.).

The employment contract must also stipulate the provision of days off to the employee, incl. the number of such days per week, the schedule for providing such days, as well as the duration and procedure for providing annual paid leave. Minimum duration annual leave established by Article 115 of the Labor Code of the Russian Federation - 28 calendar days. The parties can establish a longer duration of leave, as well as additional paid leave.

Consultations and comments from lawyers on Article 305 of the Labor Code of the Russian Federation

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