Irregular working hours: how to draw up documents. Irregular working hours: how not to abuse the right

realities modern business are such that employees often have to stay late at work, come earlier, work without lunch. Employers, in such situations, are in no hurry to pay for processing, justifying themselves by the fact that the day for employees is irregular. Does an irregular day really allow the employer to save on overtime pay?

Introductory information

The Labor Code establishes clear limits on the working hours during which employees must perform their duties. As a rule, this is 40 working hours per week, which, with a five-day working week gives 8 working hours a day. There are two ways to make an employee work outside of this time - by involving him in overtime work, or by introducing an irregular working day. The first method entails the obligatory payment of each hour of processing, and the total number of such hours is limited to 120 per year and four for two working days in a row (Article 99 of the Labor Code of the Russian Federation). But with regard to irregular working hours, such restrictions have not been established, which makes it very attractive to the employer.

What is an irregular day

Before proceeding directly to the consideration of issues arising in connection with an irregular working day, it is necessary to dwell on this concept itself. According to Article 101 of the Labor Code, an irregular working day is understood as a special mode of work, in accordance with which individual workers may, by order of the employer, if necessary, occasionally be involved in the performance of their labor functions outside the working hours established for them.

Simply put, employees can work in irregular working hours, official duties which are such that they cannot always be carried out in working time. As a rule, we are talking about employees whose work is related to customer service (after all, you can’t kick out a buyer who came 10 minutes before the end of the working day). Or about employees representing the interests of the company in other bodies or organizations (courts, tax authorities, etc.), whose work schedule may not coincide with the employee's work schedule.

But these are just examples. The Labor Code itself does not establish any restrictions on the contingent of employees who can enter an irregular working day (although there are still some exceptions, and we will talk about them below). Therefore, formally in the mode irregular day can work as a cleaner, and the head of the highest rank.

What gives irregular day mode

The first and most obvious advantage of the irregular day regimen already follows from its definition, which we gave above - employees can be assigned to perform work not only during working hours, but also outside of it. But there are other benefits as well.

So, the introduction of an irregular day does not relieve the employee from the obligation to come to work on time, nor does it give the right to leave earlier. In addition, the irregular working hours make it possible to involve the employee in additional work at any time - both before the start of the working day and after its end. This is confirmed by Rostrud in a letter dated 07.06.08 No. 1316-6-1. The third plus of an irregular day is that you do not need to obtain his written consent every time to involve an employee in work outside the official working hours. Moreover, the employee does not have the right to refuse processing.

Finally, this method of ensuring the presence of employees at work is quite simple to design.

How to enter an irregular day

Article 101 of the Labor Code establishes the following algorithm for introducing irregular working hours in organizations.

First, you should draw up and approve a list of positions for which an irregular working day is established. However, some limitations must be kept in mind. So, it is impossible to include in the list of employees who, according to the law, have a reduced working day (disabled people, minors, employees studying at universities, etc.). It will not be possible to establish an irregular day for employees with whom there was an agreement on part-time work, fixed in the employment contract. But a part-time working week (i.e., a mode when an employee works not five days a week, but, for example, two or three) is not a hindrance to an irregular working day.

After this document is drawn up, all employees whose positions are indicated in it must be familiarized with the list under signature. Accordingly, if an employee is accepted for such a position, then before signing the employment contract, he must be familiarized with the list, which is fixed by his signature indicating the date and time of familiarization.

The next document in which you need to fix the condition on irregular working hours is an employment contract with an employee. And it must be done in without fail, since the mode of operation, which is different from the generally accepted in the organization, is a prerequisite for an employment contract (Article 57 of the Labor Code of the Russian Federation). Accordingly, if a similar mode of operation is introduced for existing employees, then it will be necessary to draw up an additional agreement to the employment contract. This means that it is possible to introduce an irregular working day in an organization only with the consent of the employee. But in the future, as we have already mentioned, it is not necessary to obtain consent for each case of processing.

This completes the design of the very possibility of attracting an employee to work outside the working day.

How to issue an order

If we read article 101 of the Labor Code of the Russian Federation carefully, we will see that the employee does not have to work more than expected every day, but only by order of the employer. At the same time, the Code does not specify in any way how such an order should be drawn up. A unified form for this case has not been established. It turns out that the legislation allows the oral form of the order.

However, in our opinion, an oral order can only be used if there is another document where processing will be recorded. The amount of time worked by each employee is recorded in the Timesheet (forms No. T-12 or T-13, approved by Resolution No. 1 of the State Statistics Committee of the Russian Federation dated 05.01.04 No. 1). But, according to the procedure for filling out these documents, approved by this resolution of the State Statistics Committee, if an irregular day is set for an employee, then work in excess of the established working hours is not reflected in the Time Sheet.

At the same time, part 4 of article 91 of the Labor Code imposes an unconditional obligation on the employer to keep records of the time actually worked by each employee. Therefore, whatever one may say, the organization will need to issue a document fixing the processing time. In principle, this can be a statement similar to the Timesheet. And the presence of such a document, in our opinion, may well replace the written order of the employer on the need to work outside of working hours.

At the same time, we would like to warn employers against abusing irregular hours. After all, Article 101 of the Labor Code says that employees can be involved in extracurricular work only occasionally. Therefore, if during the inspection the labor inspectorate establishes that such work was of a permanent nature, the employer may be required to pay for this work as overtime, and even fined for violation (Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

Summarize. Irregular working hours are documented in the following documents:

- a list of positions approved by the head of the organization;

- an employment contract indicating an irregular working day;

- accounting sheet actual work employees during irregular working hours.

Irregular day payment

Let us now turn to the issues of compensation for employees working outside the normal working day. Unlike overtime work, which is compensated with money, work in irregular working hours "threatens" the employee with additional days of paid leave. The duration of this leave is determined by the employer independently, but cannot be less than three calendar days(Article 119 of the Labor Code of the Russian Federation). Please note that this leave is due to all employees who hold positions included in the relevant list. At the same time, it does not matter whether they were actually involved in work outside of working hours or not.

Usually, the nature of work in a certain profession or position suggests that the regime labor day for objective reasons, it does not fit into the normal schedule. In order to regulate this kind of problems, the legislator introduced the concepts of overtime work and summarized accounting for work with fair pay outside the generally accepted schedule. However, there is another option - the establishment of an irregular working day for an employee. In accordance with the provisions of the Labor Code of the Russian Federation, this legal form accounting for additional labor excludes its payment, is compensated by additional rest and has a lot of nuances of design and application.

General information about non-standard operating mode

The concept of an irregular working day was introduced by Article 101 of the Labor Code. The legal norms contained in it specify the essence, purpose and features of the use of this institution.

A working day without time limits is a special and exceptional mode of labor activity.
The conditions of irregular working time are expressed in the output of labor time beyond the normal schedule (40-hour work week, reduced or part-time labor time). At the same time, the maximum duration of additional work is not regulated by the legislation of the Russian Federation.
Work outside the work schedule is performed by the employee in accordance with his job responsibilities.
Despite the establishment of conditions for irregular working hours, for an employee in the employment agreement, the duration of his normal work and rest is still determined.

Who can work in an irregular schedule according to the law

This regime is established for individual employees, but by no means for the entire organization.
The considered mode of work with a list of positions falling under it is fixed in a collective agreement between the employer and employees (represented by the trade union).
The legislator allows employees to be involved in additional work occasionally. In other words, there can be no talk of any daily processing.
In each individual episode of involvement in additional work, conditions such as the presence of an order from the management (including oral), the real need for urgent work must be observed.

How to set working hours

Overtime work is a priority form of attracting workers to additional work outside of its normal schedule. At the same time, overtime work is paid in a special manner, is allowed in most situations only with the consent of the working citizen, and their duration is strictly regulated by law.

Comparing the concepts of overtime and irregular work, it should be noted that their simultaneous use to regulate the work of the same employee is unacceptable. Only employees with a normalized working day are involved in overtime work, while those who have an irregular working day are involved in overtime work at the direction of the employer without additional payment.

Table: difference between overtime and irregular work

Evaluation criterion	overtime work	Conditions of irregular working hours
Local document, which fixes the possibility of attracting employees to additional work	No need for anchoring	Documentation: collective agreement, contract.
The frequency of involving an employee in additional work, the maximum duration of work	You can attract employees constantly, but not more than four hours in two days in a row and one hundred and twenty hours in a year.	You can engage an employee occasionally, the duration of work is not regulated.
Reasons why a citizen can be involved in work outside the schedule	A strictly defined list of reasons, indicated in Article 99 of the Labor Code.	The list of reasons is not defined by law, Article 101 only establishes the condition that the work must be considered necessary.
The form of expression of the order of the employer	Mandatory written notice	Perhaps a verbal order from the boss
Do I need the consent of the employee to engage in additional work?	The consent of the employee is mandatory, except in the cases described in Art. 99 TK	The consent of the working citizen is not required, it is enshrined in a previously concluded labor agreement.
The circle of employees to whom the regime can be applied	Employees of all spheres, with the exception of those listed in Art. 99 categories (for example, pregnant and underage).	Employees filling positions listed in the collective agreement, in contracts with which the condition of irregular work is indicated.
Pay for additional work time	In one and a half size - for the first two hours, then - in double.	Not produced.
Other types of compensation for hours worked outside the working day	At the request of the employee, payment can be replaced by the amount of rest time corresponding to the amount of time worked.	For the inclusion in the contract of a condition on irregular work, at least three days of excess leave are provided each year.
How are additional hours of work indicated on the time sheet?	With the mark "C" or "04" indicates the number of hours and minutes worked overtime.	It does not appear on the table.

Video: Legislative framework for irregular work

For which categories of workers is this schedule acceptable?

The irregular work regime is applied depending on the position and function performed. At the same time, the law does not limit the employer in terms of the circle of employees based on their personal characteristics (for example, the administration has the right to use an irregular schedule for persons with family obligations, pensioners, the disabled, persons under the age of majority, etc.).

In a certain sense, the issue of defining an irregular day with a shortened or part-time working day is also controversial. The current legislation does not contain any restrictions on this matter, however, involvement in excess work in such situations in practice still seems to be a significant contradiction. legislative norms(in the case of a reduced working time regime) or by agreement of the parties (in the case of part-time work).

An irregular work schedule cannot be applied under the established shift schedule work - this would violate the prohibition of work for two consecutive shifts.

It seems quite legitimate to establish an irregular work schedule for part-time employees.

If we talk about the categories of positions for which irregular working hours can be established, then the legislation does not contain a clear list of them. As an advisory or indirect indication on this matter, the norms of clause 2 of the Rules for establishing days of additional rest for employees with irregular days in budgetary organizations (Government Decree No. 884 of 12/11/2002), Decree of the TNKT No. 106 of 02/13/1928 (current document) can be used , which does not contradict the norms of the Labor Code).

In particular, the cited documents provide such a list of groups of positions, the service function of which may involve an irregular schedule:

administration, managers, technicians and business executives;
professions where accounting of labor time is not possible;
positions that involve planning working time at the discretion of the employee;
employees whose work involves the division of working time into parts of different and not predetermined duration.

How to issue irregular working hours according to the Labor Code of the Russian Federation

The introduction of the regime of irregular work for some positions in the company occurs by amending the current collective agreement (in its absence - PVTR, the list of positions is drawn up as an appendix to the document). It is necessary to prescribe amendments to the collective agreement or draw up a new collective agreement with the appropriate wording. These documents are signed by a trade union representative and an authorized representative of the company administration.

What conditions must be included in the employment contract

The establishment of an irregular work schedule for a particular person requires the inclusion of a condition about this in contract of employment(along with defining the scope normal duration working day and rest time for this employee).

If there is no indication of an irregular schedule in the contract, a working citizen, even holding a position included in the list of positions with an irregular day in the local NPA, cannot be involved in work outside the work schedule without the appropriate payment due to him (as overtime).

The wording of the order on an irregular day in accordance with the Labor Code

The condition of working with an irregular schedule is reflected in the order for employment. An example of this document is shown below.

If the need for an irregular working day of the employee disappears, the management is obliged to cancel such a schedule. For this, an order is issued, which substantiates the reasons for the abolition of irregular labor.

Accounting and compensation for additional hours worked: compensation, allowances, other incentives

The current legislation contains the only option for compensating for additional time worked within the framework of an irregular schedule - the establishment of an excess number of days of paid rest. The minimum duration of such leave according to the law is 3 days. Maximum duration is not limited, therefore, employers have the right to establish any number of days of rest for an irregular working day in a collective agreement and contract.

Until October 2006, labor legislation allowed, instead of vacation, to pay for hours of work within the framework of an irregular day according to the principles of overtime pay.

Video: how to register an additional vacation in 1C for an accountant

In what order should processing hours be recorded

Since today the hours of extracurricular work for employees for whom the conditions of irregular working hours are not subject to additional payment, they are not reflected in the time sheet. Nevertheless, in order to exclude the regular involvement of an employee in such work (this directly violates the requirement of the law on the episodic nature of such engagements), it is still advisable to keep separate records of overtime (for example, by keeping a special journal).

Video: how to compensate for processing, is there an additional payment, nuances in the case of part-time work, and so on

The irregular working day regime is designed to regulate processing in those situations where the specifics of the work allow it to be assumed in advance that it will occasionally go beyond the schedule specified in the contract. How much an employee should work in excess of the agreed time, the law does not regulate. Despite the fact that additional work in conditions of an irregular day has a lot in common with involvement in overtime work, the difference between these concepts is huge. Such work is formalized, paid for and compensated in different ways, it is possible to involve an unequal circle of people in them, there are significant differences in the need to obtain the consent of working citizens.

Rostrud explained in detail what an irregular working day is and how it should be compensated in accordance with the current version of the Labor Code.
As stated in the Letter of 07.06.2008 N 1316-6-1, with an irregular working day, employees may be involved in work outside the working hours established for them not systematically, but from time to time and in certain cases.
This mode means that the employee can perform labor functions both before the start of the working day (shift) and after it ends. However, work on the days weekly rest and holidays he is not obliged. And in the event that the category of employees in question is called to work on weekends and non-working holidays, the organization must comply general rules provided for in Art. Art. 113 and 153 of the Labor Code.
Rostrud also recalled that the current version of the Labor Code does not recognize overtime work during irregular working hours (as it was in the previous version). Therefore, such work is compensated only by additional leave. Its duration is determined in the collective agreement or internal labor regulations and cannot be less than three calendar days.

"Russian Tax Courier", 2008, N 17

THE MYTH OF THE IRREGULAR WORKING DAY

An irregular working day is a rather "ancient" Soviet invention. Reference legal systems can easily find regulations that establish the rules for working in irregular working hours, which were adopted back in the 20s of the last century. For example, the Decree of the People's Commissariat of Labor of the USSR dated February 13, 1928 N 106 "On workers with irregular working hours", which has not yet been canceled. However, this regime has not lost its relevance: in many employment contracts one can read: "An irregular working day is set for the employee."

The main feature of the irregular working day is the right of the employer to require the employee to stay late at the end of the working day to perform urgent work. At the same time, neither the frequency nor the duration of urgent work is regulated by labor legislation, which, of course, plays into the hands of employers. Although the worker during irregular working hours works in excess of the norm of working hours established for him, that is, in most cases beyond 40 hours a week, he does not receive any additional payment or payment for these working hours.

Russians have long been accustomed to the fact that processing outside the normal working hours for workers with irregular working hours is not overtime work and is not subject to increased pay. They got so used to it that they did not even notice how the last rule, which gave at least some basis for such an assertion, was repealed.

However, this happened not so long ago - on October 6, 2006. On this day, the Federal Law of June 30, 2006 N 90-FZ "On Amendments to the Labor Code" came into force Russian Federation, declaring as invalid on the territory of the Russian Federation certain normative legal acts of the USSR and invalidated certain legislative acts (provisions of legislative acts) of the Russian Federation.
In principle, even before the adoption of Law N 90-FZ, there were no direct indications in the Labor Code of the Russian Federation that processing during an irregular working day is not overtime work and is not paid either in the usual or in an increased amount. This norm was also absent in the Labor Code of the Russian Federation, which was in force until February 1, 2002.

In the Labor Code of the Russian Federation, only one article mentioned irregular working hours - 68, which established the grounds for granting additional holidays. Its paragraph 3 obliged employers to provide additional leave to employees with irregular working hours. Clause 5 of the above-mentioned Decree of the NCT of the USSR N 106, which was in force both at that time and now, states that workers who have an irregular working day, like all other workers, are exempted from work on weekends and holidays. Work on such days is paid to employees with irregular working hours according to general rules.

According to Art. 101 of the Labor Code of the Russian Federation, as amended, in force until October 6, 2006, an irregular working day was recognized as a special mode of work, according to which individual employees could, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the normal working hours. At the same time, Art. 99 of the Labor Code of the Russian Federation defined overtime work as work performed by an employee at the initiative of the employer outside the established working hours, daily work (shift), as well as work in excess of the normal number of working hours for the accounting period.

As you can see, work with an irregular working day fully fit into the concept of overtime work, since the normal working hours are the working hours established for the employee.
However, Art. 119 of the Labor Code of the Russian Federation, which regulates the issues of granting additional leave to employees with irregular working hours, provided that in the event of non-grant leave, processing in excess of normal working hours from written consent employee is compensated as overtime. Thanks to Art. 119 of the Labor Code of the Russian Federation, processing during an irregular working day was not paid as overtime work. If the surcharge should be made in case of non-provision of vacation, then its timely provision frees the employer from the need to pay for processing during irregular working hours.

All experts commenting on Art. 119 of the Labor Code of the Russian Federation, they agreed that with an irregular working day, processing in excess of the norm of working hours is generally compensated by the provision of additional leave. The employer's obligation to pay for processing as overtime arises only if additional leave is not actually granted, and the employee has written a corresponding application.

Thus, Art. 119 of the Labor Code of the Russian Federation, albeit indirectly, gave employers the right not to pay for processing during irregular working hours. However, on October 6, 2006 Law N 90-FZ came into force, which set out this article in new edition. From its text, the proposal to pay as overtime work for processing during an irregular working day in case of non-provision of vacation has disappeared. Now Art. 119 of the Labor Code of the Russian Federation simply indicates the need to provide employees with additional paid leave, who have an irregular working day. And Art. Art. 101 and 99 of the Labor Code of the Russian Federation are agreed with each other. Now they are talking about work outside the established working hours for the employee. Compare:
"Irregular working hours - a special mode of work, in accordance with which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the working hours established for them" (Article 101 of the Labor Code of the Russian Federation as amended by Law N 90-FZ ); and "Overtime work - work performed by an employee at the initiative of the employer outside the working hours established for the employee: daily work (shift), and in the case of summarized accounting of working hours - in excess of the normal number of working hours for the accounting period" (Article 99 of the Labor Code of the Russian Federation in version of the Law N 90-FZ).

It turns out that processing with an irregular working day is the same overtime work. Neither Art. 99, no art. 101 of the Labor Code of the Russian Federation do not establish any features of overtime work for workers with irregular working hours. Article 119 of the Labor Code of the Russian Federation no longer refers to payment for processing as overtime only in the event that additional leave is not provided. Why is it still considered correct not to pay for overtime during irregular working hours, but to compensate for it by providing leave?
Article 152 of the Labor Code of the Russian Federation obliges employers to pay for any overtime work at an increased rate, including work outside the established working hours with irregular working hours.

The condition on irregular working hours, contained in the employment contracts of employees, must be understood as the right of employers to involve employees in overtime work without observing the procedures established by Art. 99 of the Labor Code of the Russian Federation. Engaging workers with irregular working hours to work outside the established working hours for them does not require their written consent or the consent of the body of the trade union organization. Work outside the established working hours, as in the cases listed in Parts 2 and 3 of Art. 99, and in all other cases, it is carried out only on the basis of the order of the employer, if the employee has an irregular working day.

The inability to refuse to perform work outside the established working hours and the inconvenience associated with this are compensated by the provision of additional leave of at least 3 calendar days. But the worker's labor itself is subject to payment, and payment at an increased rate, as if it were produced under conditions that deviate from normal.

In the general case, the employee receives wages for all the hours worked by him. If any of these hours are overtime, they are paid at an increased rate. In addition, all hours worked are included in the length of service, giving the right to annual leave given to each employee. Meanwhile, a worker with an irregular working day "according to tradition" is deprived of money for processing. Not only does he not receive any extra pay for working under abnormal conditions, he does not receive any remuneration for this work at all, only vacations. This state of affairs seems unfair.

The considered problem cannot be solved without the participation of the courts. Only the court can give a correct interpretation of the norms of labor legislation governing the payment of processing for irregular working hours. The legislator seems to have already said his word.
I. Aleksandrov - Lawyer of the Center for Legal and Economic Consultations / "EJ-Jurist", 2007, N 35

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Normal working hours and reduced working hours are established by the Labor Code and other laws, while part-time work is established by agreement between the employee and the employer.
Working hours (shifts)
A working day is the statutory time of the day spent on work. The duration of work during the day, the moment of its beginning and end, breaks are established by the rules of the labor schedule, and for shift work - also by shift schedules.
Working time - what is it?
Working time is the time during which the employee, under the terms of the employment contract, must perform his job duties, as well as some other periods of time that the legislation of the Russian Federation classifies as working time.

2018-09-06T10:08:43+00:00

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What is an irregular working day in the Labor Code of the Russian Federation? How many hours the employer has the right to involve the employee in work outside the duration of his working time. To what extent it is legal and how irregular working hours are regulated by the current legislation. What is the difference between the concepts: flexible hours, irregular hours and overtime.

An irregular working day is a special mode of work, according to which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the working hours established for them. The list of positions of employees with irregular working hours is established by a collective agreement, agreements or local regulations adopted taking into account the opinion of the representative body of employees. For an employee working on a part-time basis, an irregular working day can be established only if, by agreement of the parties to the employment contract, a part-time working week is established, but with a full working day (shift).

How the irregular working day is interpreted in the Labor Code of the Russian Federation

In the Labor Code of the Russian Federation, which is designed to regulate relations between management and subordinates, a lot of attention is paid to establishing norms of time spent at work that are not harmful to health, as well as norms of time that the body will have enough to recuperate, including an irregular working day.

What period the employee must stay within the company, performing his labor functions, is specified in the "Working hours" section. Within the framework of this concept, as well as the concept of "non-standard working day", it is fixed how many hours an employee must perform his duties throughout the day (in some cases, the term "shift" is used instead of a working day). There are also time limits for the workweek and year. Separately, there is the concept of "rest time". With its help, the duration of daily rest, weekends and holidays is regulated.

Irregular working hours: how many hours

Standard working time is perceived as a 5-day week with an 8-hour working day. It is this rule that operates in the vast majority of enterprises and organizations - both public and private. But there is another mode of operation - an irregular working day (Article 101 of the Labor Code of the Russian Federation).

Irregular working hours are not introduced for the entire enterprise, but only for some individuals who simply need to work above the plan. It turns out that the whole company has, for example, a standard 5-day workday with a start at 9 am, and individuals work irregular hours. Their duties include showing up for work at, say, 6 a.m. or leaving the office after 10 p.m.

For many, irregular working hours are tightly intertwined with the concepts of "overtime" and "processing". But at the legislative level they are separated. Irregular working hours are a separate mode of work that allows the employer to employ specific workers outside of their standard schedule.

Who sets an irregular day

The legislation does not restrict the employer in the choice of positions for which irregular working hours can be established. However, the definition of such a list must be approached taking into account the nature of the work and not include all the positions available in the enterprise. This may raise questions from auditors. The list of positions can be drawn up in the form of a separate local regulatory act or included in a collective agreement, internal labor regulations. It must also be agreed with the representative body of employees (if any).

Flexible hours, irregular hours, overtime - what's the difference?

As mentioned above, many mistakenly take a flexible schedule for irregular working hours, when the employee works out the working time established by the employment contract without a fixed start and finish of the working day, which are determined by mutual agreement (Article 102 of the Labor Code of the Russian Federation). However, these are completely different things. Unlike flexible schedule work, which is also fixed in the employment contract or an additional agreement to it, irregular working hours have clear boundaries. If it is written in the TD that the employee must start work at 10:00, then he cannot come to work at 12:00, since he has a position with an irregular working day. He must come at 10:00, otherwise he risks getting disciplinary action: remark or reprimand from the authorities (Article 192 of the Labor Code of the Russian Federation). And for being late for 4 hours or more, you can generally be fired.

Thus, an irregular working day, in contrast to a flexible schedule, has clear boundaries, but they can be “pushed apart” at the verbal request of the employer. Such requests may be episodic. The consent of the employee to work in excess of the normal working hours is not required, as well as additional payment.

In payment and in the need to obtain the consent of the employee for overtime lies the difference between an irregular working day and overtime work. Let's consider the difference in more detail.
Irregular working hours:

does not require the consent of the person to involve him in work outside of working hours;
not issued by order (a verbal order from the authorities is sufficient);
payment for irregular working hours is not allowed;
the number of episodic exits "after work" is not regulated;
employees are entitled to leave for irregular working hours - the Labor Code of the Russian Federation (Article 119) establishes guarantees in the form of at least three extra days holidays. Naturally paid. More may be specified in the employment or collective agreement. Days are required to be provided even if the employer did not use his right to occasionally involve the employee in labor duties at odd hours during the year.

Overtime in 2019:

requires the mandatory consent of the employee, except in emergency cases;
issued in writing by the employer;
the duration of overtime work cannot exceed 4 hours for 2 consecutive days and 120 hours per year;
paid at least one and a half times for the first 2 hours and at least
twice in the following hours;
no additional leave.

As can be seen from the comparison, on vacation, additional days for irregular working hours are relied upon, but overtime work is not relied upon. The opposite situation is with additional pay, which is made only for overtime work.

How to arrange an irregular working day?

Since information about the irregular schedule is essential and must be included in the employment contract, the employer must familiarize the future employee with this condition, as well as the compensation that he is entitled to for overtime working hours. In particular, according to Article 119 of the Labor Code of the Russian Federation, employees who work in this mode are entitled to additional paid leave. Its duration is determined by the collective agreement, but it cannot be less than three days.

The employee has the right to apply to the employer with a request to replace the additional leave for processing with monetary compensation. This possibility is provided for in Article 126 of the Labor Code of the Russian Federation. However, providing this cash payment is the right of the employer, not the obligation.

Registration of attraction to work over the norm of working hours

In the irregular working hours, the employee is involved in work periodically by order of the employer. However, in Art. 101 of the Labor Code of the Russian Federation does not say how such an order should be drawn up. Based on this, we can say that the legislator also allows the oral form. At the same time, we believe that the oral form of the order should be used only if the company has a well-established time record.

Regarding the fixation of processing in the irregular working hours, there are two positions.

Some experts believe that it is simply necessary to do this, since according to Part 4 of Art. 91 of the Labor Code of the Russian Federation, each employer must keep accurate records of the working hours worked by each employee. For this, the time sheet is most often used. unified form T-12 or T-13. The use of magazines is also not prohibited.

If an employee is late after work, then, most likely, the employee who enters the information in the time sheet will go home earlier, so there will be no one to record the number of hours of processing. In such cases, it is advisable to issue a written order. In addition, you can write in job description or an employment contract, for example, that an employee stays at work for two hours twice a month to prepare a report. But there is no need to fix the condition that it is required to linger daily or every other day. Otherwise, when an employee contacts the GIT, controllers recognize such periodic involvement in work outside of working hours as a violation of labor laws.

Other experts believe that an indication of the time sheet for processing leads to the fact that irregular working hours can be confused with overtime, and if the accountant considers the mark in the report card to be information about processing, he will pay for it.

We adhere to the first point of view, since no one canceled the time sheet. Yes, and fixing the time spent at work will help the employer track the frequency of going beyond the working day. In addition, time tracking will come in handy in case of any emergency - it will be possible to say for sure whether the employee was at the workplace or not.

Please noteIn the timesheet, we recommend that you set the standard for the working hours of an employee with an irregular working day. And processing records can be kept in a separate journal.

Compensation for working irregular hours

As we found out, the processing time in the named mode of operation is not paid. However, legislators did not leave such workers without compensation.

Article 119 of the Labor Code of the Russian Federation determines that employees with irregular working hours are provided with annual additional paid leave, the duration of which is determined by a collective agreement or internal labor regulations and cannot be less than three calendar days. This leave can be added to the annual basic paid leave or taken separately.

Note The right to additional paid leave does not depend on whether the employee works overtime or goes home on time. If the employment contract reflects the condition of irregular working hours, then it will not be possible to avoid providing additional days of rest.

Sometimes employees, believing that they have overworked quite a lot (for example, worked outside of working hours every day for a month), ask the employer for an additional paid day off. Their desire is understandable - they thought that they would work sometimes, and the employer involved them in such work all the time. But overtime hours in irregular working hours are not equal to overtime hours, in which the employee has the right to choose additional rest time instead of increased pay (Article 152 of the Labor Code of the Russian Federation). Since the legislation provides for only one type of compensation - additional leave, the employer is not obliged to satisfy such a request,

Attraction to work on holidays and weekends, to work at night

We repeat that many employers interpret Art. 101 of the Labor Code of the Russian Federation in their favor, believing that those working in irregular working hours should work "without days off and checkpoints." But this position is wrong. All the norms of the Labor Code apply to workers in the named regime and they can be involved in work on a non-working holiday or day off only in compliance with the rules established by the code.

For example, in order to attract employees with irregular working hours to work on a weekend, you will have to strictly follow Art. 113 of the Labor Code of the Russian Federation and issue:

written agreement;
taking into account the opinion of the elected body of the primary trade union organization;
notification of the right to refuse to work on a day off (for disabled people, women with children under the age of three) and familiarize employees with it against signature;
order to work on a day off.

In addition, before issuing an order, you will have to make sure that employees have no medical contraindications for such work.

Finally, work on a day off must be paid according to the rules of Art. 153 of the Labor Code of the Russian Federation.

For your information Work on a weekend or non-working holiday is paid at least twice the amount:

pieceworkers - at least at double piecework rates;
employees whose work is paid at daily and hourly tariff rates - in the amount of at least double the daily or hourly tariff rate;
employees receiving a salary (official salary) - in the amount of at least a single daily or hourly rate (part of the salary ( official salary) per day or hour of work) in excess of the salary (official salary), if the work was carried out within the monthly norm of working hours, and in the amount of at least double the daily or hourly rate (part of the salary (official salary) for the day or hour of work) in excess of the salary ( official salary), if the work was performed in excess of the monthly norm of working time.

Like working on weekends, working at night for a worker with an irregular working day is a deviation from the norm. We recall that according to Art. 96 of the Labor Code of the Russian Federation, night time is considered from 22.00 to 6.00. Accordingly, involvement in work at this time should be properly executed and paid at an increased rate - a minimum of 20% is added to the salary or tariff rate(Article 154 of the Labor Code of the Russian Federation).

Part-time work and part-time work

According to Article 101 of the Labor Code of the Russian Federation, an employee working on a part-time basis can be set an irregular day if he has a part-time working week, but with a full working day (shift).

If an employee has a part-time job, then it is also impossible to establish an irregular working day for him. In this case, one of the modes of labor completely loses its meaning.

Also, the law does not prohibit the establishment of an irregular day for part-time workers. But there are some peculiarities here:

if the duration of the working day is not more than 4 hours for a part-time worker, then such a working day is considered incomplete. Therefore, it is impossible to establish an irregular working day;
if a part-time worker at the main place of work is free from work duties on some days, then he can work a full shift with a part-time work week. In this case, it will be possible for him to establish an irregular working day (according to Article 101 of the Labor Code of the Russian Federation) and, accordingly, compensation in the form of an annual paid leave of at least three calendar days.

Documentation of conditions

When hiring an employee, it is necessary to familiarize yourself with the collective agreement, internal labor regulations and other local regulations in force in the organization and related to his labor function. After that, an employment contract is concluded with the employee, in which a condition is made to work in irregular working hours. By signing it, the employee agrees with the nature of the work involving processing.

The list of positions of employees with irregular working hours

The circle of persons who can work irregular working hours is established almost arbitrarily at the local level. There is no single list of positions with irregular working hours in the legislation. You can find only a few recommendations on this issue.

So, in the Decree of the Government of the Russian Federation "On approval of the rules for granting additional annual leave to employees with irregular working hours" dated 11.12.2002 No. 884, it is proposed to include the following positions in the list:

Leading link. For example, a CEO can easily work irregular hours.
Maintenance personnel. The same adjuster can come to work in advance during irregular working hours to check the equipment.
Housekeeping staff. The departure of the caretaker to work off an irregular working day can simplify the work of all staff.
Employees whose time spent at work is not accountable. The realtor can organize property showings during irregular working hours.
Employees with an obligation to work certain time, but the period when this must be done is not specified. These may include individuals creative professions for whom an irregular working day is quite the norm.

So employers can see some freedom in choosing positions with irregular working hours. In private structures, irregular working hours are established almost entirely at the request of the authorities. The main thing is that the list of positions should be fixed in writing.

How many hours can be processed?

Lawyers are often asked the question: "Irregular working day - how many hours?". The Labor Code does not regulate irregular working hours by hours and does not explain how many hours in total an employer can involve an employee in irregular work. However, if the employer is too zealous in his right to involve the employee in the performance of duties outside the normal working hours (does this not occasionally, but on an ongoing basis), then this can be recognized as overtime work and “knock out” the due compensation. To do this, you will have to contact the state labor inspectorate and the court. There are such cases in the jurisprudence.

New edition Art. 101 Labor Code of the Russian Federation

Commentary on Article 101 of the Labor Code of the Russian Federation

An irregular working day is a special mode of work in accordance with which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the normal working hours. The list of positions of employees with irregular working hours is established by a collective agreement, agreement or internal labor regulations of the organization.

The peculiarity of the considered mode of work of time is that the employee is subject to the general mode of operation of the organization, but may be delayed at work at the request of the employer to perform his work duties in excess of the usual work shift or be called to work before the start of the working day.

It should be noted that employees can be involved in work with irregular working hours only to perform their labor functions, which they must perform under an employment contract. Therefore, it is not possible to oblige the employee to perform any other types of work, including outside the normal working hours.

The Labor Code of the Russian Federation establishes that an irregular working day is established only for certain employees included in special list(it is attached to the collective agreement or rules internal regulations operating in the organization). This list can also be established in industry, regional and other agreements.

Irregular working hours may be applied to administrative, managerial, technical and economic personnel; persons whose work cannot be accounted for in time; persons who distribute time at their own discretion; persons whose working time, by the nature of the work, is divided into parts of indefinite duration.

It should be noted that, applying the rules of Article 101 of the Labor Code of the Russian Federation, the employer must not obtain the consent of either the employee himself or the representative body of employees to attract (on days of production necessity) employees to work in excess of the established working hours. This right of the employer is already provided for in the terms of the employment contract. The employee is not entitled to refuse to perform such work. Otherwise, there is a gross violation of labor discipline. Note that this article contains a definition of irregular working hours, which states that in accordance with this mode of work, employees can be involved in the performance of their labor functions outside the established for this employee working hours.

The establishment of an irregular working day does not mean that these workers are not subject to the basic norms of labor legislation on the norms of working hours and rest time. Therefore, involvement in work outside the length of working time established for them cannot be systematic.

Since irregular working hours require certain overwork in excess of normal working hours, the Code, as compensation, provides that employees with irregular working hours are granted additional annual paid leave, the duration of which is determined by the collective agreement or internal labor regulations. In the event that such leave (at least three calendar days) is not provided, processing in excess of the normal working hours is compensated with the written consent of the employee as overtime work (Article 119 of the Labor Code of the Russian Federation).

Another commentary on Art. 101 of the Labor Code of the Russian Federation

1. The peculiarity of the irregular working day regime is that the employee can, by order of the employer, perform his labor duties outside the working hours established for him in accordance with the Labor Code, other federal laws and other regulatory legal acts of the Russian Federation, a collective agreement, agreements, local regulations, labor contract. In Art. 101 of the Labor Code of the Russian Federation emphasizes that such processing is allowed only if necessary and should not be systematic, but episodic.

2. The list of positions of employees with irregular working hours usually includes employees:

a) whose work during the working day cannot be accurately recorded;

b) distributing working hours at their own discretion;

c) the working time of which, according to the nature of the work, is divided into parts of an indefinite duration.

3. In the event of an irregular working day, processing in excess of the norm of working time established for the employee is not considered as overtime work, since in this case the very nature of the work implies the possibility of processing, which, moreover, as a rule, cannot be accurately accounted for. In this regard, compensation for overtime during an irregular working day is carried out not according to the rules relating to overtime work, but by providing additional leave (see Article 119 of the Labor Code of the Russian Federation and commentary thereto).

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Article 102 of the Labor Code of the Russian Federation. Work in flexible working hours ›

Article 101 of the Labor Code of the Russian Federation. Irregular working hours

Article 101 of the Labor Code of the Russian Federation with comments and changes for 2016-2017.

Irregular working hours - a special mode of work, in accordance with which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the working hours established for them. The list of positions of employees with irregular working hours is established by a collective agreement, agreements or local regulations adopted taking into account the opinion of the representative body of employees.

Commentary on Article 101 of the Labor Code of the Russian Federation:

1. Article 101 of the Labor Code of the Russian Federation establishes the concept of "non-standardized working day". The main features of irregular working hours are:

work outside the established working hours. Limitations on the duration of work of persons working part-time (Article 284 of the Labor Code), in overtime(Article 99 of the Labor Code) has not been established. An employee can be involved in work both before the start of the working day (shift) and after the end of the working day (shift);
involvement in work is caused by a need, due to the interests of the organization and performed by the employee labor function(for example, the employee refers to the administrative staff - the head of the shop);
involvement in work outside the established working hours is episodic, i.e. cannot be a system.

The procedure for engaging in work outside the normal working hours has been established: an order from the employer is required; the positions of those involved must be included in the list of positions of employees with irregular working hours, which is established by a collective agreement, agreement or local regulatory act, adopted taking into account the opinion of the representative body of employees. Employee representatives in the social partnership are trade unions, therefore, the adoption of a local regulatory act is carried out by the employer in the manner prescribed by Art. 372 TK.

The consent of the employee to be involved in such work is not required. At the same time, the employer is not entitled to entrust him with the performance of work not determined by his labor function.

2. According to Art. 119 of the Labor Code, employees with irregular working hours are granted annual additional paid leave.

3. Rules for granting annual additional paid leave to employees with irregular working hours in organizations financed from the federal budget, approved. Decree of the Government of the Russian Federation of December 11, 2002 N 884 (SZ RF. 2002. N 51. Art. 5081), established that the list of positions of employees with irregular working hours includes managerial, technical and economic personnel and other persons whose work in the course of the working day cannot be accurately recorded, persons who distribute working time at their own discretion, as well as persons whose working time is divided into parts of indefinite duration due to the nature of work.

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