Enter idle mode. What to do during forced downtime due to the fault of the employer

Labor legislation allows demurrage to be declared to employees through the fault of the employer. This procedure was supposed to give the latter the opportunity, under adverse circumstances, to suspend work processes and pay staff only 2/3 of the average salary. However, employers often use this opportunity not for objective reasons, but wanting to exclude an objectionable or unnecessary employee from the company's business processes. In this case, employees do not always agree with such a formulation of the question, because the announcement of downtime can be one of the steps taken by the employer in order to force the employee to quit. The law and the established practice of its application indicate that the will of the employer in itself to declare downtime due to his own fault is not enough.

Judicial practice pays attention to the fact that the employer has real circumstances that caused the announcement of downtime. Let us turn to the decisions of the courts, which will allow us to draw conclusions about the risks of the employer in the event of an announcement of downtime on his initiative.

Legislative regulation of downtime due to the fault of the employer

To begin with, let's figure out what the essence of such a legal instrument as declaring downtime due to the fault of the employer. In the Labor Code of the Russian Federation, frankly, the provisions on downtime are very scarce; a separate article is not devoted to it. Downtime is defined in Art. 72.2 "Temporary transfer to another job" of the Labor Code of the Russian Federation. In accordance with it, downtime is a temporary suspension of work for reasons of an economic, technological, technical or organizational nature.

As follows from Art. 157 of the Labor Code of the Russian Federation, downtime arises through the fault of the employer, through the fault of the employee, and also for reasons beyond the control of the parties. It is on the factor of guilt and its subject that the payment for downtime depends: in the case of the fault of the employer or if the reasons do not depend on the will of the parties, downtime is paid at the rate of 2/3 of the average salary of the employee. In the presence of the fault of the employee, downtime is not paid.
However, the Labor Code of the Russian Federation does not contain the concept of guilt. Obviously, in this situation it will have to be borrowed from other branches of legislation.
In this context, we are interested in downtime due to the fault of the employer. When is she present? In accordance with Part 2 of Art. 22 of the Labor Code of the Russian Federation, the employer is obliged to provide the employee with work stipulated by the employment contract, equipment, tools, workplace, equipment, etc., necessary for the implementation labor function. And such circumstances, such as, for example, non-payments of counterparties, lack of orders, etc., belong to the category of entrepreneurial risks, and these risks lie entirely with the employer, shifting them to the employee is unacceptable.
But interestingly, even if the employer announces downtime through his own fault, he should still do this only if there are objective reasons. After all, the payment of 2/3 of the average earnings and the inability to work are, in any case, negative consequences for the employee, which the employer does not have the right to create without objective reasons, only at his own discretion.
As for the procedural issues of introducing downtime due to the fault of the employer, there is also a gap in regulation. Obviously, the employee must be notified of the reasons, the beginning and the period of downtime, and before the start of the downtime or directly on the day of the start. The most logical way to do this is to issue an appropriate order. It also begs the question, should the employee be present at work during downtime? Since, in accordance with Art. 107 of the Labor Code of the Russian Federation, downtime does not apply to rest time, then the employee should be present at the workplace in readiness to start work at the end of the downtime. However, if the presence of the employee during this period is not required or, moreover, it is undesirable, this must be indicated in the downtime order.

As follows from practice, in fact this is what happens.
The question also arises: should the announcement of downtime be limited to a specific period of time? Here again, no specifics can be found in the law. If the downtime is caused by such reasons as the re-equipment of the enterprise, etc., then its period can be quite predicted and indicated in the order. If it is difficult to determine the duration of downtime in advance, you can declare it, for example, for a month, and then issue an order to extend it. If the reasons for declaring downtime disappear earlier, nothing prevents you from issuing an order to terminate it and invite the employee to familiarize yourself and then go to work. You can issue an order with open date the end of the downtime, specifying, for example, "until the end of the reasons for declaring the downtime".

Judicial practice on the reasons for declaring downtime due to the fault of the employer

Simple as coercion to quit

The employer declared the employee downtime, forcing her to make a decision to dismiss (The cassation ruling of the St. Petersburg City Court dated May 25, 2011 N 33-7694).

The situation when an employer offers an employee who does not suit him to quit, even if there are no obvious legal grounds for this, happens very often. In this case, the employer may apply various methods pressure on the employee, trying to clothe them in a legal form.
In the example under consideration, the plaintiff, without really existing reasons, was declared idle time with the preservation of 2/3 of the average earnings. She was allowed not to attend the workplace, and her pass was blocked from the date the downtime began. As a result, the plaintiff resigned by agreement of the parties, and then went to court with various demands, including the invalidation of the demurrage order and the recovery of underpaid amounts.
The Court of Cassation concluded that the employee was unlawfully suspended from work - both by a downtime order and actually not allowed to work - and deprived of the opportunity to work. Accordingly, on the basis of Art. 234 of the Labor Code of the Russian Federation for the period of illegal downtime, she had to pay not 2/3 of the average earnings, but the average earnings in full.

Idle time until reduction due to lack of confidence

The employee was sent on a downtime up to a reduction in order to prevent him from information systems in a situation of acute distrust on the part of the employer (Appeal ruling of the Moscow City Court dated July 16, 2014 in case No. 33-28011 / 14).

A real confrontation unfolded between the head of the IT department and his employer, during which the employer also used such a method of struggle as declaring downtime. The plaintiff subsequently challenged the legality of the layoff order.
It all started with the fact that the employer issued an order on the upcoming reduction of some positions and departments in the company, including the position of director of information technology. By the same order, the director of the IT service was instructed to transfer all information on access and work in IT systems for the purpose of auditing, and it was also forbidden to access the company's IT systems. However, a violation of this order by an employee was recorded, after which he was declared idle with an "open" date - until further notice CEO- and ordered not to go to work. At this time, the company carried out an audit of IT systems with the help of a contracted organization. However, upon completion of the audit, the plaintiff was not allowed to work, idle time lasted until the moment of reduction of his position and was paid at the rate of 2/3 of the plaintiff's average earnings.
The court, recognizing the announcement of idle time to an employee as illegal, cited the following arguments. So, the defendant had no legal grounds for introducing a downtime in relation to the plaintiff, since, by virtue of the provisions of Part 3 of Art. 72.2 of the Labor Code of the Russian Federation, downtime is a temporary suspension of work for reasons of an economic, technological, technical or organizational nature. No such reasons have been established. The court took into account that the descriptive and evaluative formulation of the reasons that caused the downtime, set out in the Labor Code of the Russian Federation, indicates a variety of circumstances that can cause the suspension of activities, which makes it impossible to establish an exhaustive list of them in the law, but may be the subject of an assessment by the court considering the labor dispute. But in any case, simple as a legal fact is a temporary event, and the employer, by virtue of Art. Art. 22, 56 of the Labor Code of the Russian Federation is obliged to take all measures in its power to stop downtime and provide the employee with the opportunity to perform labor obligations stipulated by the employment contract.
However, the plaintiff was actually suspended by the employer from performing a labor function, up to and including dismissal. The employer has not proven that it is impossible to provide him with work in his position for the period of the audit of IT systems. And even after the end of the audit, the company did not stop the downtime in relation to the plaintiff, thereby the employer did not provide the employee with the opportunity to perform labor duties, and the latter was illegally deprived of the opportunity to work. Thus, in view of the groundlessness and illegality of downtime, the court recovered in favor of the employee the difference between the payment for downtime and his average earnings for the period of illegal downtime.

Downtime on the eve of liquidation

The employees failed to recognize the idle time declared by them illegal, since the employer was to be liquidated (Appeal ruling of the Moscow City Court dated 07/02/2013 in case N 11-20513 / 2013).

A group of workers of 4 people filed a lawsuit with a claim to declare the downtime declared illegal and to pay them unpaid earnings for the downtime. The situation in which they were declared idle was as follows. The employer notified the employees of their impending dismissal due to the liquidation of the organization (clause 1, part 1, article 81 of the Labor Code of the Russian Federation). Employees were declared downtime, with which they did not agree.
However, the court accepted the position of the employer on the legal introduction of downtime in relation to employees. Thus, the orders for its announcement contained the following wording: "due to organizational reasons, expressed in a change organizational structure LLC, the lack of work for certain positions established by the staffing table, with payment for downtime, the release of employees from the obligation to visit the office. "The court also found that due to significant losses in the previous year, as well as the negative trend in business development sole member The defendant submitted a message to the Interdistrict IFTS of Russia N 46 for the city of Moscow on the liquidation of the LLC, on the basis of which information was entered into the Unified State Register of Legal Entities about the beginning of the liquidation.
Thus, the court concluded that the employer had a legitimate reason to declare downtime, since there were economic and organizational reasons in connection with the difficult financial and economic situation of the company and its upcoming liquidation. Under such circumstances, the workers had no reason to consider downtime illegal.

Reduction of position as a reason for downtime

The upcoming layoffs are not a reason to announce downtime. This conclusion was made by the Samara Regional Court in the Ruling of March 15, 2011 N 33-2390.

So, at the enterprise where the plaintiff worked, there were organizational changes: the work that he did was transferred to another unit, where the same positions were introduced as his. With regard to the position of the plaintiff, it was decided to reduce it, he was offered vacancies. The plaintiff initially agreed to the transfer, but then refused. After that, he was declared idle, which the plaintiff disputed. The court of cassation recognized the removal of an employee from idle time as illegal for the following reasons.
As noted above, by virtue of Art. 72.2 of the Labor Code of the Russian Federation, downtime is a temporary suspension of work for reasons of an economic, technological, technical or organizational nature.
However, it was found that the amount of work performed by the repairmen - colleagues of the plaintiff, did not change, this work continue to perform the same number of locksmiths, but transferred to another unit due to changes in staffing. Despite the organizational changes that have taken place, the plaintiff's labor function has not gone away, there was an opportunity to provide him with a job.
Thus, he was actually suspended from work, since the employer had the opportunity to provide him with work with payment of the corresponding wages. The consent of the employee to the transfer and the subsequent refusal of it cannot serve as a basis for withdrawing the plaintiff into downtime.
In addition, the commencement of the dismissal procedure for downsizing in relation to the plaintiff is also not a basis for layoffs, since such a procedure for dismissal is not provided for by labor legislation. Accordingly, the order to take the employee out of service was declared illegal, and the company was charged with unpaid wages for the period of downtime.
A similar case is described in the Appellate ruling of the Samara Regional Court dated April 15, 2015 in case No. 33-4065/2015. Due to the fact that the enterprise serving Russian Railways had completed the program for the supply of components and there were no applications for new supplies, the plaintiff was declared idle, and then a notification of the upcoming procedure for reducing his position followed. The plaintiff was not satisfied with the situation when he was deprived of the opportunity to work, receive full wages and, without his consent, he was paid for downtime in the amount of 2/3 of the average earnings.
Of interest in this case is also how the court interprets the concept of downtime and expresses its opinion on its introduction for the period preceding the reduction of the position. He points out that the use of the concept of "idle" is associated with extraordinary circumstances that do not allow the employer to ensure the work of the organization. The plaintiff was suspended from performing the labor function with reference to the insufficient amount of work, the decrease in the volume of orders. At the same time, during the period of downtime, the work that he was supposed to carry out in accordance with his official duties was performed by other employees of the organization.
The court concluded that in this case there was actually no downtime, and the plaintiff's failure to fulfill his labor duties was due to the fault of the employer, who, in violation of Art. Art. 15, 16 of the Labor Code of the Russian Federation did not fulfill its obligation to provide the employee with work in accordance with the labor function performed by him. Therefore, the plaintiff's work should be paid in the amount not lower than the average wage in accordance with Part 1 of Art. 155 of the Labor Code of the Russian Federation.
The following remark of the court is also interesting: the employer in this case was obliged to conclude an agreement with the employee on changing the conditions determined by the parties employment contract in writing. However, such an agreement between the parties was not concluded, in connection with which the payment of the plaintiff in the amount of 2/3 of the average wage in accordance with Art. 157 of the Labor Code of the Russian Federation is unreasonable.
Also, downtime orders were taken by the employer in relation to the plaintiff during the period of his notice of impending dismissal, while the holding of organizational and staffing events in the defendant's company during the period of notice of dismissal to reduce the size or staff of the organization cannot be the basis for remuneration of the employee in the amount of 2/3 of the average salary. The issuance of a downtime order during this period should be caused by a temporary suspension of work. If, due to downsizing, the possibility of stopping downtime by the employer is not expected, then there are no signs of a temporary suspension of work.
Downtime was not announced in order to provide the employee with the opportunity to actually perform labor duties in the previous or other position, but was due to the notice period for the upcoming dismissal.
According to these arguments, the employer's downtime orders were invalidated and the employee was charged with unpaid wages.

As can be seen from the norms of the Labor Code of the Russian Federation on simple and given examples judicial practice, simple is some economic tool, designed to protect the interests of both the employer and the employee in the event that the employer, for objective reasons, cannot conduct his business in the usual manner.
In a normal situation, when the reasons for downtime are real and objective, the interests of the employee and the employer are balanced as follows: the employee receives a kind of compensation of at least 2/3 of the average salary for unfavorable circumstances in the form of lack of work, and the employer gets the opportunity to save cash and not to pay wages in full for the forced inactivity of the employee. The courts in their arguments emphasize that the downtime must be motivated by reasons emergency and not just the desire of the employer. As we can see from the above examples, the court only in the situation of liquidation of the company found it reasonable to introduce downtime in relation to employees precisely because the liquidation is an extraordinary situation and caused by objective reasons: the decision of the founder legal entity and profitability of the company.
In the event that downtime is introduced solely at the request of the employer, in order to save on wages and remove "harmful" employees from the company's resources, the employee's interests are infringed - he is deprived of the right to work and the right to full remuneration for his labor. This case can be called an unfair application of the downtime procedure.
The main signs of dishonesty of the employer when declaring idle time to the employee are the following:
1) the absence of a stop to business processes in which an employee who has been put on idle is involved;
2) fulfillment of the duties of an "idle" employee by his colleagues;
3) introduction of a downtime procedure for the period ahead of layoffs;
4) preventing the employee from reaching the workplace and other resources of the company, if any conflict situation between employee and employer.
Thus, when deciding on the introduction of a downtime procedure due to the fault of the employer, the latter should take into account the following recommendations:
1) downtime can be introduced only if there are objective reasons not due to the will of the employer that do not allow the employee to perform his labor function: suspension of business processes in which the employee is involved, liquidation, bankruptcy of the company, etc.;
2) if it is planned to transfer the duties of an idle employee to his colleagues or to another unit, it is impossible to introduce idle time, since in this case the employer has the opportunity to provide the employee with work (which is, by virtue of Article 22 of the Labor Code of the Russian Federation, the obligation of the employer);
3) it is impossible to motivate the introduction of downtime by the upcoming reduction in the number or staff in relation to the employee, if it is possible to provide him with work for the period preceding the reduction.
In conclusion, we add that the main risk of unreasonable introduction of downtime is its challenge by the employee in court and the recovery of the amounts "saved" by the employer, as well as legal costs and compensation for moral damage.

The legal regulation of the labor period is carried out at the level of legislative acts, contractual regulation of working conditions and by agreement of the parties to employment. You need to know that in special cases, the working period is the time when the employee does not actually work, but is directly dependent on the employer or manager. An example is simple. Now many people are faced with problems when the work of an organization or its separate structures needs to be stopped.

The reasons may be the lack of materials, the threat to the health and life of employees. Downtime of individual workers, sectors, divisions, departments of state bodies - the real situation of today. Well, if the downtime will have a short-term phenomenon.

But what to do when the work of the enterprise is suspended for weeks or even months? How is it necessary to arrange and organize work during the downtime period, what guarantees for employees are provided for by the current legislation? Answers to these questions in an unstable political situation are highly relevant.

What is simple?

Downtime at the enterprise may occur due to the fault of the employer, staff, or for reasons independent of either one or the other. We are interested in the first, most common case. First of all, let us recall how the concept of downtime is defined by the Labor Code of the Russian Federation.

Downtime is a stoppage of activity caused by the absence of conditions that are required for the activity to be carried out. As you can see, the current norms of the law do not limit the list of reasons that have grounds for recognizing the suspension of a legal entity as idle. The main thing is to issue it in time in accordance with the current legislation.

Does the law require the manager to notify employees of a change in the terms of remuneration in the event of a downtime through no fault of the employee no later than 2 months? Since downtime can be caused by various reasons, even those that could not be warned in advance, it is impossible by law to oblige the manager to give such a notification.

In the event of manifestation of the reasons for the long-term downtime of both an individual employee and a separate unit or the entire organization, the employer must take appropriate management decisions on changes in existing working conditions while continuing activities in the same specialty, with the same qualifications or position, associated with changes in the enterprise of production and labor.

In this case, the employee must be notified no later than 2 months. This was noted by specialists from the Ministry of Labor and social protection in their consultations.

Now - a situation where the introduction of downtime is not the fault of the employer, because downtime occurs for reasons beyond the control of the parties to the employment agreement. This means that it does not require employees to be notified 2 months before the start of the downtime.

Employer liability for downtime

The employer bears all responsibility.

For the period of downtime, when the fault of the employer became the cause, an act of downtime is written (the reasons for which the activity was stopped are entered) and the order of the manager. When the cessation of work is of a round-the-clock (weekly) nature, the manager in the order must reflect the need for the presence or absence of personnel at the workplace.

Downtime can occur when an employee arrives at work but doesn't do their job. job activity for the reasons stated above. Then when an employee is downtime own initiative does not appear at the workplace or leaves it on his own, then he cannot count on payment for this time, even if he was notified in advance of the upcoming downtime.

In cases of downtime due to the fault of the manager, he may have a number of obligations to the employee:

1. The employer must take responsibility for downtime, as well as issue an appropriate order;
2. The manager must take all possible measures to end the delay;
3. The manager must provide the employee with the opportunity to perform his work activities and receive appropriate payment for it.

Drafting documents while idle

A certain order of registration of downtime.

The act of the start of downtime can be issued for everything structural unit, and for the entire organization as a whole, taking into account the circumstances that caused downtime. This act is drawn up by the officials of the organization.

When drawing up the act, it is advisable to involve the management, representatives of the trade union and labor collective enterprises. But the composition of the commission is determined depending on the reasons for the downtime.

For example, if the cause is equipment failure, a chief engineer or other technical officer should be involved, who must determine the cause of the failure and the timing of its elimination. Or if the reason is the lack of raw materials for the production of products, the head of the supply department and an economist are involved. The law does not define a standard form for issuing an act of idleness.

Simple should be formalized in an act in free form using the mandatory details established in domestic office work. Be sure to indicate the reasons that led to the suspension of work.

An example of a downtime order

04/11/2016 OOO MOLOCNIK ORDER

Moscow

About simple enterprise

Having studied the circumstances of the downtime and its causes, specified in the Act on the downtime of the enterprise dated 11.04.2016 No. 2, guided by Art. 113 of the Labor Code of the Russian Federation and the norms of the Collective Agreement for 2016

I ORDER:

1. Approve the Act on the downtime of the enterprise dated April 11, 2016 No. 2;
2. Consider the time 8:00 on April 14, 2016 as the beginning of the downtime of the enterprise;
3. Set the downtime period from 04/11/2016 8:00 a.m. until 24:00 on April 30, 2016;
4. Approve the list of measures during downtime and overcoming its consequences;
5. Allow employees of the enterprise not to go to work during the downtime, except for the head of the supply department E.K. Romanyuk, the head of production S.I. Konovalyuk, the head of the personnel department Stetsenko A.G. work and leaving work;
6. Head of the personnel department Stetsenko A.G. familiarize the employees of the enterprise with the order before the downtime and ensure that the downtime is recorded;
7. of the HR department to inform the employees about the resumption of work in a timely manner, the responsible person is the head of the HR department Stetsenko A.G.;
8. The accounting department of the enterprise, according to time sheet data, pay for downtime in the amount of two-thirds tariff rate workers. Responsible - Chief Accountant Tretyakova M.T.;
9. Approve measures to overcome the downtime of the enterprise. Responsible - the head of the supply department Romanyuk E.K.;
10. Control over the implementation of this order shall be entrusted to the head of production Konovalyuk S.I.;

Reason: Act on idle time of the enterprise dated April 11, 2016 No. 2.

Familiarized with the order:

Head of the personnel department (signature) A.G. Stetsenko (11.04.2016)

Chief Accountant (signature) M.T. Tretyakova (04/11/2016)

Head of the supply department (signature) E.K. Romaniuk (04/11/2016)

Head of production (signature) S.I. Konovalyuk (11.04.2016)

Chairman of the trade union committee (signature) N.I. Savchenko (11.04.2016)

The representative of the labor collective is the foreman (signature) G.I. Pavlenko (11.04.2016)

The act of downtime is considered the basis for the issuance by the administration of an order or order to start downtime in the organization, as well as on the procedure for the work of employees and payment for this period.

An example of a demurrage act

OOO MOLOCNIK

ACT About idle business

04/11/2016 Moscow No. 2

We, the undersigned, testify that due to the lack of raw materials for production, downtime begins, and the operation of the enterprise is impossible. Therefore, it became necessary to temporarily stop work due to downtime from 08:00 on April 14, 2016.

The act was drawn up to issue orders for the enterprise on downtime of employees, on the transfer and movement of workers for downtime and payment for downtime.

Director (signature) S.I. Drones

Head of production (signature) S.I. Konovalyuk

Head of the supply department (signature) E.K. Romanyuk

Chairman of the trade union committee (signature) N.I. Savchenko

The representative of the labor collective is the foreman (signature) G.I. Pavlenko

In the timesheets, downtime is indicated by the letter code "P".

Payment during downtime

The employer must update the equipment on time.

labor law Russian Federation the rights of employees are protected in cases of downtime through no fault of their own. It is fair that for such a period the employee must receive monetary compensation from the employer.

The enterprise has the right to establish a higher amount of payment for downtime in a collective agreement or in the Regulations on remuneration. This rule is subject to application in cases of suspension of activities due to the lack of materials and raw materials to ensure production, the lack of technological documentation, equipment failure, not related to the fault of the enterprise personnel.

The presence or absence of an employee at work in case of downtime does not affect the remuneration for this time, since this issue is resolved in accordance with the rules work schedule organizations.

During the period of downtime due to reasons that arose through no fault of the employee, he retains the average earnings.

Recording downtime expenses

The perpetrator bears all costs for downtime.

During downtime, the salaries of employees employed in production are recommended to be reflected in general production costs. So, according to clause 11 of PBU 10/99, other overhead costs include payment for downtime, that is, the salary itself and the amount of accrued ERUs.

General production costs, although indirectly (because they relate to the cost of production by using the distribution base), are still related to production. Overhead costs through distribution fall into the production cost, and fixed unallocated costs - into the cost of sales.

However, if there is no production as such, it is likely that such costs will not be allocated. Therefore, as an option, “idle” payroll costs can be reflected in other operating expenses and are accounted for in the sub-account of the same name “Other operating expenses”.

However, if downtime is the result of an unavoidable force (flood, hostilities, etc.), then under such conditions it is better to take into account “idle” wage costs on the “Other expenses” account.

Taxation on personal income and the calculation of the unified social tax on the amount of payment for the downtime period are carried out in the same manner as in the calculation of wages.

Example 1. In April 2016, an employee worked for 12 days, after which, until the end of the month, a downtime was issued in the company due to a delay in the delivery of materials. Employee salary - 16,000 rubles. Additional guarantees in connection with a simple collective agreement are not provided. Payment is made in the amount of 2/3 of the rate set for the employee. In April 2016 - 21 working days. If an employee has worked 12 days, the employee’s forced absenteeism due to downtime in April is 9 working days. Calculate earnings in April 2016.

Payment for the period worked:

• one-day earnings - 760.19 rubles (1600 rubles / 21 days);
• earnings for hours worked - 9140.28 rubles (760.19 rubles x 12 day).

Downtime payment:

• one-day payment for the downtime period - 500.79 rubles (760.19 rubles x 2/3);
• downtime payment - 4570.11 rubles (500.79 rubles x 9 day);
• earnings for April 2016 - 13710, 39 rubles (9140.28 rubles + 4570.11 rubles).

In cases where a production situation has occurred that is dangerous to the life or health of personnel, and environment, payment for the downtime period is carried out in the amount of average earnings. However, in this case, it is required to confirm the existence of such a situation by an occupational safety expert of the organization, representatives of the trade union of which the employees are members, or in the absence of representatives on labor protection issues, as well as an insurance expert on labor protection issues.

Different situations have different costs.

Example 2. In May 2016, an employee came to work within 9 days, after which, until the end of the month, he was issued a downtime due to an accident. The employee was paid a salary of 16,000 rubles. In March-April, all days are worked out. He received no other payments in 2016. In May 2016, 19 working days. If an employee worked 9 days, then absenteeism due to downtime in April is 10 days. The calculation of the average salary is carried out based on the wages for the last 2 months preceding the month of downtime (in our case, March-April 2016). Calculate the salary of an employee in May 2016.

Pay for hours worked:

• one-day earnings - 840.21 rubles (16,000 rubles / 19 day);
• earnings for hours worked - 7570.89 rubles (840.21 rubles x 9 day).

Downtime payment:

• one-day earnings during downtime - 780.05 rubles (16,000 rubles + 16,000 rubles) / (20 + 21));
• payment for downtime - 7800.50 rubles (7800.05 rubles x 10 day);
• earnings for May 2016 - 15380.39 rubles (7570.89 rubles + 7800.50 rubles).

Registration of employees during a simple enterprise

Employees are required to be at work.

Where employees should be during downtime at their workplaces or outside the enterprise - the employer decides independently, taking into account the specific circumstances of what happened, and fixes his decision in the order.

However, we must note that according to Art. 72.2 of the Labor Code of the Russian Federation, in the event of downtime, an employee can be transferred, with his consent, to another position, taking into account the profile and skill in the same organization for the entire period of downtime or to another organization, but in the same area for a period of not more than 1 month.

However, in the event of downtime of the entire organization, the implementation of this norm is quite problematic, because the transfer of employees to another organization in the same area requires the existence of contractual relations between enterprises. 72.2 of the Labor Code of the Russian Federation does not indicate the amount of salary during such a transfer, and therefore, the salary in this case can be any, unless otherwise established by a collective or labor agreement.

In this video you will learn about liability employee and employer.

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Downtime due to the fault of the employer is not such a rare occurrence and occurs both on large enterprises, as well as in small firms. But at the same time, practically no attention is paid to the issue of registration of idle time in labor legislation. This article will focus on how to document downtime and pay workers time.

What is meant by the concept of "simple" in the Labor Code of the Russian Federation

The concept of "simple" appears in Labor Code RF in Art. 72.2 and 157. And if in the second article we are talking on payment in such a situation of working time, then in the first there is a definition according to which a temporary suspension of work is called downtime. But the reasons for the suspension of activities are also immediately indicated. Their character may be:

• technical;
• technological;
• economic;
• organizational.

But here the downtime time frame is not indicated. It can last a day, a week or a month. It turns out that until the employer wants or is unable to resume work, he has the right to extend the downtime. The main thing is that everything should be formalized.

Another important detail is whose fault the work was suspended. This can be done:

• due to the fault of the employer;
• fault of the employee;
• reasons beyond the control of the employee and the employer.

In practice, it can be difficult to distinguish whether the downtime was formed due to the fault of the employer or due to reasons beyond the control of the employee and the employer.

For example, demand for products fell, and production had to be temporarily suspended. Is the employer to blame for the forced downtime? Naturally, the employer does not admit his guilt, referring to economic crisis. But, on the other hand, this situation can be presented as an unfortunate one. entrepreneurial activity, which means that the employer must be responsible for its consequences. And if the employees do not agree with the position of the employer, then the court will have to determine the presence of his guilt.

How to issue a downtime due to the fault of the employer

Registration of downtime falls on the shoulders of the employer. It is he, according to the norms of Art. 91 of the Labor Code of the Russian Federation, is obliged to keep records of the hours actually worked by each employee. For these purposes are used special shapes. The resolution of the State Statistics Committee “On approval of unified forms of primary accounting documentation for accounting for labor and its payment” dated 01/05/2004 No. 1 provides forms T-12 and T-13, which are used for the time sheet.

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However, with the introduction of new accounting rules, the Ministry of Finance published information dated December 4, 2012 No. PZ-10/2012, where forms T-12 and T-13 were canceled as mandatory for enterprises. Since 01/01/2013, the management of companies can independently approve the form for recording hours worked.

In order to mark downtime in the report card, a legal basis is necessary. Therefore, a separate order is issued at the enterprise, which indicates the downtime due to the fault of the employer and those employees who temporarily suspend their labor activity, as well as the amount of wages for this period.

If the employer did not initiate the registration of downtime, then the employee himself may take care of this. To do this, he must convey information about the lack of working conditions to his superiors. It is better to do this in writing, for example in the form of a report.

What payment is provided in case of downtime for employees in 2017-2018

When the employer is to blame for the downtime, he is obliged to set the amount of wages for the entire period of suspension of work at least 2/3 of the average salary of the employee. It is important that not only the salary is used to calculate the average salary, but also all bonuses and allowances received by the employee.

And here an interesting point arises: it will be cheaper for the employer to issue a simple one for reasons beyond the control of the employees and the employer. Then he will have to pay 2/3 of the salary (tariff rate). The employee must track this moment himself if he wants to protect his rights; he must also be prepared to defend them, perhaps even in court.

The fact that the Labor Code of the Russian Federation refers to 2/3 does not mean that the employer cannot increase payments. 2/3 of the average salary or salary is the minimum.

What should an employee do during downtime

If an enterprise declares forced downtime due to the fault of the employer in accordance with all the requirements of the Labor Code of the Russian Federation, then the employee faces the question: is it necessary to go to work? This moment should be settled between the employees and the employer at the very beginning. If the employer allows not to visit workplaces, then this should be displayed in the order. Otherwise, the absence of an employee at the workplace can be considered as absenteeism.

The main thing is that downtime due to the fault of the employer does not turn into a forced vacation when employees go home. Usually, before this, the employee is asked to write an application for time off or leave at his own expense. Again, the employee in this case must be attentive and defend his civic position.

During downtime due to the fault of the employer, the employee may be offered to transfer to another position - however, for this, the company must have open vacancies. If the employee agrees, then a temporary transfer can be issued for up to a year. Without the consent of the employee, he can be transferred in case of downtime to another job for a period of not more than a month. But if there is only a job that requires a lower qualification for replacement, then even for this month the consent of the employee will be required.

If the transfer nevertheless took place, then the salary is paid according to the conditions new position, but it cannot be less than the average earnings at the previous job.

Downtime due to the fault of the employer is registered by the person responsible for maintaining personnel work; if the company is small, then most often this is done in the accounting department. There are no clear requirements for the form of an order issued in such cases in labor legislation. However, it is recommended not just to announce a temporary suspension labor activity, and describe in detail all the circumstances of the downtime: the start date, the period for which it is planned to suspend activities, list the persons to whom the order applies, and announce their salary for the downtime period. It is better to acquaint employees with such an order against receipt.

Question: What is the procedure for registering downtime in the organization due to the fault of the employer due to the lack of orders?

Question:

What is the procedure for registering downtime in the organization due to the fault of the employer due to the lack of orders?

Lawyer's response:

The procedure for registration of downtime is not established by law.

The employer may regulate the procedure for fixing downtime in their local documents in accordance with the recommendations given above.

Legal rationale:

Downtime is understood as a temporary suspension of work for reasons of an economic, technological, technical or organizational nature (part 3 of article 72.2 of the Labor Code of the Russian Federation). It follows that objective reasons for downtime may arise in the absence of orders for the organization's products (services), disruption in the supply of raw materials and materials, and financial difficulties. The idle mode can be extended to several employees, individual structural units or the entire organization. Part 3 of Article 72.2 of the Labor Code does not contain any restrictions in this regard.

Downtime due to the fault of the employer is payable in the amount of at least 2/3 of the average salary of an employee (part 1 of article 157 of the Labor Code of the Russian Federation). In labor (collective) agreements or local acts of the organization, payment for the downtime period may be provided for in a larger amount.

The calculation of average earnings is carried out in accordance with the Regulations on the specifics of calculating average wages (approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922). At the same time, all payments provided for by the organization's remuneration system are taken into account: official salary, bonuses, allowances, etc. When paying for downtime, in which neither the employer nor the employee is guilty, at least 2/3 of the tariff rate is paid ( official salary), calculated in proportion to the downtime (part 2 of article 157 of the Labor Code of the Russian Federation). Other payments taken into account in average earnings are not taken into account.

Standard forms of documentation for registration of the suspension of labor activity of employees of the enterprise are not established by law. The employer must develop them himself, taking into account the system of documentary circulation adopted at the enterprise.

In our opinion, it is possible to single out a number of documents that are the basis for issuing a downtime order:

A memo addressed to the person acting as the sole executive body of the legal entity from the head of the structural unit, whose competence includes the organization of work and access to information about the start of downtime.

Downtime record sheet. Standard form no such sheet is legally established. Usually, it contains the date and time of the start and end of the downtime, the full name and position (profession) of the employees and the reasons for the downtime. The sheet must be signed by the head of the structural unit in which the idle time arose.

Simple Act. As a rule, it is made up of heads of idle structural divisions, accounting, personnel department, labor protection, a representative of the labor collective, etc. The act reflects the reasons and duration of downtime, employee positions, etc. The act is subject to approval by the head of the organization.

Although the Labor Code does not provide for the obligation of the employer to issue a downtime order, in our opinion, it is necessary to resolve organizational issues (including the procedure for remuneration). In addition, the order is needed to issue a notice to employees about downtime.

On the basis of orders, memos, acts or sheets of idle time, a time sheet is filled out in the forms No. T-12 or T-13, approved by the Decree of the State Statistics Committee of Russia dated 05.01.04 No. 1. In the corresponding columns, you must indicate the alphabetic or numeric idle code ( due to the fault of the employer - RP or 31, for reasons beyond the control of the employer and employee - NP or 32), as well as the length of time not worked (in hours, minutes).

In addition, the enterprise must report the suspension of production to the public employment service. A written notice of this must be sent within three working days after the adoption of the relevant decision (paragraph 2 of article 25 of the Law of the Russian Federation of 19.04.1991 N 1032-1 On employment in the Russian Federation).

It is better to indicate the reason for downtime in all documents in accordance with the wording contained in article 72.2 of the Labor Code. It is not necessary to draw up the end of downtime with a special document, since its duration is reflected in the order and the time sheet.

Downtime order due to the fault of the employer

Compilation most important documents upon request Order on downtime due to the fault of the employer (regulations, forms, articles, expert advice and much more).

Normative acts. Downtime order due to the fault of the employer

(as amended on 11/18/2011)

Articles, comments, answers to questions. Downtime order due to the fault of the employer

Arbitrage practice. Downtime order due to the fault of the employer

Circumstances: The supplier duly fulfilled its obligations under the contract, but the buyer did not pay for the installation and commissioning works. The buyer refers to the payment by him of the cost of the failed equipment and forced downtime.

For downtime that arose through the fault of the employer, the latter is obliged to pay the employee at least 2/3 of his average earnings (part 1 of article 157 of the Labor Code of the Russian Federation). In labor (collective) agreements or internal regulations on remuneration in the organization, payment for the period of downtime in a larger amount can be established, for example, 75% of the average salary of an employee. When calculating average earnings, one must be guided by the Regulation on the features of the procedure for calculating the average wage, approved by Decree of the Government of the Russian Federation of December 24, 2007 N 922 (hereinafter referred to as the Regulation on average earnings).

For any duration of downtime (several hours or several full working days), payment is made based on the average daily earnings of the employee. The amount payable is determined by multiplying the average daily earnings by the number of working days of downtime payable (clause 9 of the Regulations on Average Earnings). If the duration of downtime is less than one working day, the value of the average daily earnings is divided by the number of working hours in the shift and multiplied by the downtime (in hours).

Recall that in accordance with paragraph 2 of the Regulations on average earnings, the calculation takes into account all types of payments provided for by the remuneration system in the organization, regardless of the sources of these payments.

A downtime in production means a stoppage of the company's activities. During this period, the employee is unable to work. The question arises: is he obliged to be present in the organization during downtime? Yes, I must. Indeed, for an employee of simple production, this is work time, during which he cannot perform his labor functions (Article 91 of the Labor Code of the Russian Federation).

However, the employer has the right to allow employees not to go to work by issuing an appropriate local normative act. At the same time, even if employees are not present at work, the employer is obliged to pay them all the downtime.

How to write an order to declare a downtime of an enterprise

Downtime announcement order

Announcement: When analyzing the financial and economic activities of the enterprise, including the effectiveness of the work of the personnel, it was found that the job descriptions of some employees need to be revised. Because the volume of work performed by them for one reason or another has decreased, and wages have remained at the same level. The task is to exclude from job descriptions unnecessary functions and, accordingly, reduce the salary of employees.

To substantiate this before labor inspectorate, it is necessary to document how long the downtime lasted, which of the employees got into it, for what reasons it happened. After all, the amount of earnings of employees will depend on this.

The legislation does not say which document to introduce downtime at the enterprise and stop it. The most obvious way is to issue an order from the head. Such an order does not have a unified form, so this document can be of arbitrary content. The order to declare downtime should be as detailed as possible:

First, it should list the reasons for the downtime. For example, they may be the lack of orders, short supply of raw materials and materials, delays of buyers, delayed financing, etc. In order to refer to such circumstances, real evidence is needed. In particular, it is possible to provide specific details of contracts overdue by counterparties. This is necessary in order to prove whose fault the downtime arose. If it is the fault of the employer, then during the production lull, the employee must be paid at least 2/3 of his average earnings (part 1, article 157 of the Labor Code of the Russian Federation). In this case, the letter value "RP" is put down in the report card. If the reasons are objective, then employees are charged at least 2/3 of the salary in proportion to the downtime (part 2 of article 157 of the Labor Code of the Russian Federation), and “NP” is noted in the report card.

Secondly, the order cannot do without the beginning and end of downtime. As for the first date, everything is clear. But it is not always possible to predict when the downtime will end. In this case, it is still better to set a specific deadline so that you can calculate the employee's earnings. If the downtime does not end by this day, then it can be extended additional order. If, on the contrary, it ends earlier, then the early termination is also issued by order.

Thirdly, be sure to note whether downtime has been declared throughout the company or in relation to individual employees of a department (list them). At the same time, employees are required to be present at the workplace, if the order does not contain permission not to go to work.

Sample order to declare downtime

Society with limited liability"SeverPromInvest"

No. 1160-ls dated 06/15/2010

about the downtime announcement

From June 1 to June 15, 2010, the company did not accept a single order by phone and e-mail for the repair of water pipes. In this regard, and on the basis of Article 157 of the Labor Code of the Russian Federation

I ORDER:

1. Declare downtime from June 16, 2010 to August 01, 2010 inclusive for the following employees of the order reception service:

Ivanova Olga Ivanovna - operator for receiving and processing orders,

Petrova Olga Petrovna – email processing manager.

2. The employees specified in paragraph 1 of this order have the right not to go to work during the idle period. Based on the order, they can be called to work ahead of schedule.

3. Chief accountant Sidorova P.M. ensure payment of downtime Ivanova Oh.AND. and Petrova O.P. in the amount of two-thirds of the salary, calculated in proportion to the downtime. Calculation to be carried out on the day of issuance of wages, statutory internal order.

4. Head of the Human Resources Department V.P. Lebedeva provide accounting for downtime, familiarize employees with this order.

5. To impose control over the execution of the order on the chief accountant Sidorova P.M.

General Director of SeverPromInvest LLC ______________________ Berkutov A.P.

Familiarized with the order:

O.I. Ivanov 15.06.2010

O.P. Petrova 15.06.2010

Downtime clearance

Magazine: Directory of personnel officer

Theme: Documents personnel service, Salary

Due to the current economic situation in the country, disruptions in the activities of enterprises are often observed. Forced suspension of the work of the organization (or employer - individual) or its individual structural divisions is caused by severe financial position, lack of raw materials, components, interruptions in the supply of electricity and other reasons beyond the control of employees. Stopping production is practiced, including at largest factories countries that act as the main employers for residents of many cities (city-forming organizations). In such a situation, employers are forced to take urgent measures to somehow “survive” in difficult economic conditions and retain qualified staff.

The Labor Code (part 3, article 722 of the Labor Code of the Russian Federation) defines: temporary suspension of work for reasons of an economic, technological, technical or organizational nature is downtime.

According to Art. 22 of the Labor Code of the Russian Federation, one of the main obligations of the employer is to provide the employee with work stipulated by the employment contract. In addition, in the legal definition of an employment contract, given in Art. 56 of the Labor Code of the Russian Federation, the legislator emphasizes that an employment contract is an agreement between an employer and an employee, according to which the employer undertakes to provide the employee with work according to the stipulated labor function, to ensure working conditions provided for by labor legislation. Based on this, in the event of downtime as a temporary suspension of work for reasons of an economic, technological, technical or organizational nature and the inability to provide employees with work (i.e., in case of failure to fulfill their duties), the employer is obliged to pay the appropriate downtime payment.

Downtime may also occur in the following cases:

1. Suspension from work of an employee who has not undergone training and testing of knowledge and skills in the field of labor protection or mandatory preliminary or periodic medical checkup through no fault of their own (part 3 of article 76 of the Labor Code of the Russian Federation).

2. An employee's refusal to perform labor duties due to a danger to his life and health, if it is impossible to provide him with other work for objective reasons (part 5 of article 220 of the Labor Code of the Russian Federation).

3. An employee's refusal to work in case of failure to provide personal and collective protective equipment in accordance with established standards (part 6 of article 220 of the Labor Code of the Russian Federation). Acquisition by the employer at his own expense and free provision of such funds to employees, as well as control over correct application protective equipment is the direct responsibility of the employer. Therefore, the period of downtime caused by such a reason must be considered as downtime due to the fault of the employer.

4. The inability of the employee to perform labor duties in connection with the strike (part 6 of article 414 of the Labor Code of the Russian Federation). For employees who did not participate in the strike, but in connection with the strike, who were unable to perform their work and declared in writing about the start of downtime in connection with this, compensation was established for downtime through no fault of the employee.

Downtime Prevention Measures

In accordance with labor law, the employer has the opportunity to take a number of measures to prevent downtime.

Thus, article 722 of the Labor Code of the Russian Federation in cases of downtime gives the employer the right to temporarily transfer the employee without his consent for up to one month to work not stipulated by the employment contract with the same employer. However, such a transfer is admissible only if two conditions are met simultaneously. First: the need for such a transfer is caused by the presence of emergency circumstances listed in Part 2 of Art. 722 of the Labor Code of the Russian Federation, i.e. natural or man-made disasters, industrial accidents, industrial accidents, fires, floods, famines, earthquakes, epidemics or epizootics, or any exceptional cases that endanger the life and normal living conditions of the entire population or its parts. The second condition: such a transfer without the consent of the employee is possible only with regard to his qualifications, since a transfer to a job requiring lower qualifications is possible only with the consent of the employee.

In addition, if there is an employee downtime in accordance with Part 1 of Art. 722 of the Labor Code of the Russian Federation, by agreement of the parties, it is possible to transfer to another job with the same employer for a period of up to one year, and in the case when such a transfer is carried out to replace a temporarily absent employee who, in accordance with the law, retains his job, until the employee leaves to work.

Finding an employee at work

Downtime is a temporary forced suspension of work. If the employee is not on vacation, on a business trip, or is not absent for another good reason, then he is obliged to be at the workplace without participating in manufacturing process. Even if the downtime continues for a long time, the employee is obliged to report to work in a timely manner and stay at the workplace. His absence from the workplace is possible only with the permission of the employer.

In practice, employers often allow employees not to go to work for a period of downtime. But it should be remembered that in this case we are not talking about granting vacation. The employee must be ready to come to work and start performing the labor function at the first request of the employer. If the employee is absent from work without the consent of the employer, then his absence can be regarded as absenteeism with all the ensuing consequences.

Setting up an idle period

In accordance with Art. 157 of the Labor Code of the Russian Federation in the event of a suspension of work, when the employer is not aware of the fact of downtime (for example, due to equipment breakdown and other reasons that make it impossible for the employee to continue performing the labor function), the employee is obliged to notify the immediate supervisor or other representative of the employer about the start of production downtime.

The legislation does not establish in what form the employee must do this (in writing or orally). We believe that it would be reasonable to inform the employer about the downtime that has arisen in writing (in the form of an application application 1), since from the moment such a message is received, the employer has obligations to pay for downtime, which is important. Otherwise, for example, if an employee is subject to a piecework wage system, failure to comply with labor standards due to downtime will require additional evidence of his absence of guilt. In the absence of such evidence, payment of the normalized part of the salary will be made in accordance with the amount of work performed in accordance with Art. 155 of the Labor Code of the Russian Federation.

A prerequisite for payment of downtime is the definition of the start and end of the downtime period. In this regard, it is advisable to document the fact of downtime, for example, draw up an appropriate act ( application 2) or send a memorandum ( application 3) the head of the organization. In these documents, it is necessary to indicate the date and time of the start of downtime, its duration, causes, etc.

These documents will be the basis for the employer to issue a downtime order. unified form there is no downtime order. It is compiled in an arbitrary text form on the form of an order for the main activity ( application 4). This document usually records: the start time of the downtime, its reason and duration (if it can be determined at the time the order is issued). The order should indicate which employees (divisions) are idle. If at the time of issuing the downtime order it is already known whose fault it occurred, this fact must also be reflected in the order. In the downtime order, it is advisable to indicate the need for the presence of employees at the workplace or to release employees from being present at the workplace. This will avoid later conflicts on this issue (for example, if the employee claims that he received oral permission from the employer to be absent from work during downtime). All employees who are subject to the downtime order must be familiarized with the order against signature.

The legislation does not provide for any additional guarantees for certain categories of workers in case of downtime (for example, due to high qualifications and labor productivity, the presence of dependents, the absence of other workers in the family with independent earnings, etc.).

Downtime should be reflected in the time sheet, which is maintained according to unified forms No. T-12 or No. T-13, approved. Decree of the State Statistics Committee of Russia dated 05.01.04 No. 1. In column 4 of form No. T-13 or in columns 4 and 6 of page 2 of form No. T-12, an alphabetic or numeric idle code is reflected. It should be noted that, depending on the reasons for downtime, a different code is entered in the time sheet.

Expert opinion

Orlova E.V., Deputy General Director of CJSC "ASM Audit"

Attention should be paid: federal law No. 287-FZ dated December 25, 2008, Art. 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1 "On Employment in the Russian Federation". From January 1, 2009, the employer is obliged to notify the employment service agency in writing of the suspension of production within three working days after the decision to do so is made (as is the case with the introduction of part-time work). The current legislation does not contain requirements for the content of such a notice (message), and it can be drawn up by the employer in any form.

Direct liability for non-fulfillment by the employer of this duty of responsibility is not established. However, the employer may be subject to

administrative responsibility under Art. 19.7 "Failure to provide information (information)" of the Code of Administrative Offenses of the Russian Federation: for failure to provide or late submission to government agency(official) information (information), the submission of which is provided for by law, which entails the imposition of an administrative fine: on legal entities (employer) - in the amount of 3,000 rubles. up to 5000 rub. on officials(head) - in the amount of 300 to 500 rubles.

With regard to downtime documentation, there is a practice of keeping downtime sheets, downtime acts or other similar documents designed to record the specific downtime of each employee. A unified form of such documents has not been established, therefore, the employer has the right to develop it independently, including required details listed in paragraph 2 of Art. 9 of the Federal Law of November 21, 1996 No. 129-FZ "On Accounting".

These documents reflect the duration of the downtime, its causes and the perpetrators (if any). They can calculate the losses of the employer from downtime, in particular, the amounts payable to employees for the period of downtime, payroll taxes from them, depreciation deductions for idle fixed assets, expenses for public utilities on mothballed premises, etc.

The downtime record sheet or other similar document is usually signed by the head of the idle structural unit, since he is responsible for the correct indication of the downtime period and its perpetrators. On the document, which shows the calculation of the losses incurred by the employer, the signature is also put by the responsible accountant.

Code entered in the time sheet depending on the reasons for downtime

Under the code, you must specify the duration of the idle time. If the idle time did not last the entire working day, but only part of it, then additional lines are entered in the time sheet in order to reflect exactly how long the employee was idle.

Payment for a period of temporary incapacity for work during downtime

NA No. 3‘2007 Issues of payment for temporary disability during downtime are regulated by the Federal Law of December 29, 06 No. 255-ФЗ “On the provision of benefits for temporary disability, pregnancy and childbirth of citizens subject to compulsory social insurance”. According to paragraph 7 of Art. 7 of this Law, temporary disability benefits for the period of downtime are paid in the same amount in which wages are kept during this time (i.e., not less than 2/3 of the average wage or tariff rate established for the employee, salary (official salary)), but not more than the amount of the allowance, which this worker would have received general rules benefit calculation.

NA No. 2'2009 Federal Law No. 216-FZ of November 25, 2008, which approved the budget of the Social Insurance Fund of the Russian Federation for 2009, establishes the maximum amount of temporary disability benefits (with the exception of benefits paid in connection with an accident at work or an occupational disease) for full calendar month in 2009 - no more than 18,720 rubles.

creative simple

NA No. 7'2007 The definition of the concept of downtime for creative workers has its own characteristics. According to part 5 of Art. 157 of the Labor Code of the Russian Federation is not a simple time during which creative workers, media workers, cinematography organizations, television and video crews, theaters, theater and concert organizations, circuses and other persons involved in the creation or performance (exhibition) of works, in accordance with the List of professions and positions of creative workers in the media, cinematography organizations, television and video crews, theaters, theater and concert organizations, circuses and other persons, participating in the creation and (or) performance (exhibition) of works, the features of the labor activity of which are established by the Labor Code of the Russian Federation, approved. Decree of the Government of the Russian Federation of April 28, 2007 No. 252, do not participate in the creation or performance (exhibition) of works or do not act.

The specified time may be paid in the amount and in the manner established by the collective or labor agreement, local regulatory act.

By the way

In the 1st quarter of 2009 Monti LLC (employer) committed a number of violations labor law: the sending of a number of employees on “forced” (“administrative”) unpaid leave, the introduction of part-time work in the form of a part-time work week (four days) for individual employees during a five-day working week, actually at the initiative of the employer.

Thus, according to Order No. 25 dated January 19, 2009 “On the Operation of Monti LLC in Crisis Conditions” (hereinafter referred to as the Order), in order to maintain the production and economic activities of the company in the face of the negative impact of the financial crisis in order to save the payroll fund in the period from 19 from January to December 31, 2009, the directors of areas of work and their deputies, chief specialists, heads of departments and their deputies, heads of sections, engineering and technical workers were offered, upon their applications, leave without pay or with the establishment, with their consent, of part-time work time (based on one day of vacation per week or an incomplete four-day work week).

On the basis of the Order, the employees listed in this document, who chose to provide unpaid leave, filed monthly applications addressed to the General Director with a request to grant them “administrative” leave for 4 specific days of the corresponding month (at the choice of such an employee).

In particular, the application of process engineer A. recorded a request for “administrative” leave on February 5, 12, 19 and 26, 2009, and in the application of the equipment repairman M. - respectively on February 4, 11, 18 and 25, 2009 .

In these documents, the employees did not indicate the reasons (circumstances) for granting "administrative" leave. Meanwhile, the indication of the reason (circumstances) in this case is aimed at observing the interests of the employee. Only family circumstances and other good reasons can be a legitimate reason for such leave. However, an analysis of the text of the Order allows us to establish otherwise: this is a financial crisis and the need to save wages.

According to Art. 128 of the Labor Code of the Russian Federation, unpaid leave may be granted to an employee for family reasons and other valid reasons upon his written application. The duration of this leave is determined by agreement of the parties.

It appears that under family circumstances and other good reasons social needs that have arisen in the personal life of the employee are implied, therefore the initiative to provide the specified leave should come from the employee.

The Labor Code of the Russian Federation does not contain grounds for granting leave without pay at the initiative of the employer. Moreover, even collective and labor agreements cannot provide for leave without pay at the initiative of the employer, including in cases of temporary suspension of the enterprise.

In the clarification of the Ministry of Labor of Russia dated June 27, 1996 No. 6 “On leave without pay at the initiative of the employer”, approved. Decree of the Ministry of Labor of Russia dated June 27, 1996 No. 40, which has retained its legal force to date (to the extent that it does not contradict the Labor Code of the Russian Federation), emphasizes: "forced" leave without pay at the initiative of the employer is not provided for by labor legislation.

Thus, the Labor Code of the Russian Federation does not give the employer (Monti LLC) grounds to evade the performance of their duties, in particular, the provision of work and its timely payment in full, even in cases of financial difficulties, including during an economic downturn in conditions of the financial crisis.

In addition, by providing such “administrative” leave, the employer infringes labor rights employees under Art. 157 of the Labor Code of the Russian Federation. The situation that has arisen in Monti LLC should be regarded only as downtime due to the fault of the employer, payable in the amount of at least two-thirds of the average salary of an employee (part 1 of article 157 of the Labor Code of the Russian Federation).

Recall: if employees, through no fault of their own, cannot fulfill the obligations stipulated by the employment contracts concluded with them, the employer is obliged to pay downtime in the manner prescribed by law (Article 157 of the Labor Code of the Russian Federation). At the same time, the amount of payment for downtime depends on the fault of the parties to the employment contract in its occurrence. The Labor Code of the Russian Federation does not provide for a specific list of circumstances (reasons) that are independent of the employer and employee, under which Part 2 of Art. 157 of the Labor Code of the Russian Federation.

In fact, at the initiative of the employer, on the basis of the order of Monti LLC dated January 21, 2009 No. 27 (with reference to the Order), a part-time (four-day) working week was introduced for employees who did not agree with the provision of unpaid leave, due to economic reasons, that does not meet the standards of Part 1 and 5 of Art. 74 of the Labor Code of the Russian Federation. At the same time, employees were not asked to conclude additional agreements to employment contracts that provide for amendments to such a mandatory condition for inclusion in an employment contract as a regime of working hours and rest time, which does not meet the requirements of Art. 57 of the Labor Code of the Russian Federation.

In addition, from the content of the above orders of Monti LLC, it follows that the employer introduces part-time work for a period exceeding 6 months (from January 19 to December 31, 2009), which does not comply with the norms of Part 5 of Art. 74 of the Labor Code of the Russian Federation.

The listed violations of labor legislation may entail bringing the employer (LLC "Monti") to administrative responsibility in the form of a fine in the amount of 30,000 rubles. up to 50,000 rubles or administrative suspension of activities for up to 90 days (Article 5.27 of the Code of Administrative Offenses of the Russian Federation). At the same time, bringing a legal entity to administrative responsibility does not exclude the possibility of bringing the head of the organization to such responsibility in the form of an administrative fine in the amount of 1000 rubles. up to 5000 rub. (Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

Orlova E.V. Director General of ZAO ASM Audit

Annex 1

An example of an employee's application for the start time of downtime

Failure by an employee to perform their job duties usually implies penalties from the employer. After all, who does not work, he may not count on remuneration. But there are times when an employee simply cannot do the job, and this happened because of the employer. The conditions for such a break vary, but in all such situations, the employee is entitled to compensation.

Peculiarities. In what cases can it occur

Forced downtime is a certain period of time during which the employee cannot fulfill his duties prescribed in the employment contract. The problems that led to this situation may vary, as well as their culprits.

Exists several reasons for such pauses in work:

1. Economic kind. For example, the firm has no orders. And although this reason can be attributed to the economic situation in the country and considered external, judges, as a rule, consider it as a direct fault of the entrepreneur. After all, the manager must correctly calculate financial risks. Therefore, if there are any circumstances that justify the employer, he will be obliged to prove this in court - which, however, does not exempt him from the need to compensate employees for wasted time.
2. of a technical nature. Here the range of potential culprits is much wider. If the manager deliberately delays the process of completing the task, the fault for the pause lies with him. If an employee breaks the only equipment suitable for the job until a new one is purchased and delivered / installed, he is responsible for the pause in work. External reasons can also play a role: for example, the materials necessary for repairs did not arrive. Outside deliveries depend on the logistics of another company, so a third party is responsible for downtime.
3. organizational nature. A good example is strikes. People who did not join the rally are still unable to do their job. The legality of the protests plays a big role: if everything is legitimate, the manager is to blame. If not, no one. It also depends on the amount of compensation and whether it needs to be paid at all.

Without a trial, all the nuances of downtime often cannot be resolved. Indeed, in the Labor Code of the Russian Federation there is no clear list of situations that can be unambiguously classified as simple due to someone else's fault. The proceedings must establish the nature of the break in work and whether one of the parties to the employment contract is responsible for it. This directly affects the payment for a pause in work.

You should also not confuse simple and flawed. At the first employee does not work at all. With a flaw, a person does not “fit” into the schedule required amount shifts, but he performs his duties.

How to make a simple one: step by step instructions

To get started, you need to clearly determine the reasons for the pause in work and in the future, all documents are drawn up based on their justification. In this case, the documentation of the institution will greatly help, with the help of which the fact of the suspension of activities will be obvious. For example, the accounting department is obliged to record a change in income, a shortage of certain materials for work. The employer must collect and carefully study all invoices, memos and other similar acts.

In the Labor Code of the Russian Federation, the process of registering a break in work is not prescribed, therefore, further steps are described based on numerous litigations.

Step one. We write in a formal business format downtime order. There is no clear form, so the text of the order is drawn up by each manager personally. What should be included in the document:

• specific date and exact time the beginning of a break in work;
• it is also desirable to determine the date of its end, although the employer does not always have this information - for example, if there is a need to clarify the circumstances of a pause in work. Then a phrase is introduced into the contract that the break will end when the event N occurs;
• for what reason there was a downtime and who is responsible for it;
• depending on the nature of downtime, it can be introduced either for one / several departments of the enterprise, or for the entire organization. In both cases, the employer is obliged to list by name each employee who will be affected by a break in work, indicating their positions. Also separately write down the names of departments (workshops, offices, etc.) that will be idle;
• reference or quote from Article 157 of the Labor Code of the Russian Federation, in the part that describes the payment procedure for a specific downtime culprit;
• if the manager decides that his employees may not be present at the workplace during a pause in the performance of duties, this must necessarily be reflected in the order. If this clause is not present, employees cannot leave their places or not come to work.

This rule is due to the fact that a pause in work is not equivalent to rest. That is, although the worker has nothing to do, he still has to visit the place of work, unless the manager seems to have a better deal.

All employees affected by this situation are required to put their signature on the order, thereby confirming that they have read the document.

Step two. It should only be done if the employer completely freezes the activity of the enterprise. In this case, you need to notify the employment service. After the start of the pause in work, the manager has three working days to write this notice and send it to the desired address. There is also no clearly defined form of the document.

Step three. Filling out the time sheet. The time in the timesheet is calculated to the nearest minute. Depending on the reason for the downtime, you need to specify a special code.

Examples of documents for registration

A downtime order can be issued as follows:

An example of an explanatory note for downtime due to the fault of the employee:

How is forced downtime paid?

Maximum payment amounts are not limited, the employer has the right to set them according to own will . The law only sets out the minimum requirements for compensation., payment below this bar will be illegal.

Downtime due to the fault of the employee is not subject to compensation. In such cases, we are most likely talking about disciplinary offenses, so the entrepreneur can additionally punish the employee for a pause in work - for example, reprimand him with entry in a personal file, or deprive him of the bonus.

Idle time due to the fault of the employer at least two-thirds of the employee's average salary is paid.

Downtime for other reasons that come from outside and are not dependent on the parties to the employment contract is paid in the amount of 2/3 of the tariff rate or salary of the employee, calculated in proportion to the time of the break in work.

What should an employee do during this time?

If the employer did not send the employee home, he has the right to offer the employee to temporarily perform other official duties . This requires the written consent of the employee, as well as the proper execution of his temporary transfer, fixed by a special act.

In this case, for the work done the employee must be paid the full amount of wages, received by people who perform the same duties in the organization.

Transfer to a less qualified job (respectively, with a lower wage) is prohibited.

Sometimes workers may also carry out their previous work duties in another area. In this case, the employer does two things: draws up an act on the movement of the employee and stops the downtime in relation to him. This method is only appropriate if the person’s labor duties do not change at the new work site.

If the employee does not agree to the transfer, he still has the right to visit workplace and do nothing there.

Among entrepreneurs, there the practice of sending subordinates on business trips during their downtime. This is not prohibited by law, but then you need to pay not for a pause in work, but for a business trip.

Particularly bored employees can clean up the office, but this is an exclusively personal impulse of their soul, so they are not entitled to demand for such payment. Office cleaning is the job of a cleaning lady who is paid to do it. The employer cannot force the workers to clean up, "since they are not busy anyway."

In general, every employee should be aware that during legal downtime, he has every right not to work and not agree to temporary transfers to other positions. Everyone decides for himself how to diversify his activities in the workplace when there is no direct work. The main thing is not to interfere with other employees to perform their duties.

The video contains additional information about downsizing, registration of company downtime.