Crises and production failures often occur even at large enterprises. This may occur due to circumstances beyond people's control or result from management negligence. The law provided for the possibility of registering downtime at the enterprise in such cases in order to preserve jobs after the restoration of the usual work regime. How to register downtime due to the fault of the employer and what employees should do during this time - these issues require detailed study.
Legislative regulation
The Labor Code of the Russian Federation does not have a separate chapter devoted to this term. It is not clear whether this period should be classified as working time or rest time. In Art. 72.2 provides a meager definition that downtime is a “temporary suspension of work.” It can have different reasons - it is important whose fault the malfunction occurred:
- Employer;
- Employee;
- Due to circumstances beyond the control of the parties.
Downtime caused by an employee has no legal consequences and is not regulated by law. But the Labor Code of the Russian Federation provides for the responsibility of the employer for dishonest attitude towards their duties, which caused disruptions in production, and also establishes additional rights for employees for this period.
In practice, it is difficult to prove whose actions caused downtime at work. Here's a simple example: sales figures have decreased. On the one hand, the employer may refer to a drop in demand, but on the other hand, this may be caused by illiterate business practices and negligence. Courts, as a rule, take the side of workers if management has not ensured maximum production capacity.
The Labor Code of the Russian Federation does not regulate the permissible downtime due to the fault of the employer, which frees his hands. In fact, he can repeatedly extend this period until the reasons that caused the failure are eliminated. The main thing is that the required documents are completed on time.
Reasons for suspension of work
The main factors include:
- Economic. These are common difficulties caused by financial crises within the country and in production itself, and a lack of material and raw materials. Responsibility lies with the employer, since there is a business risk.
- Technological. May be caused by the reorganization of the working mechanism and the introduction of new production methods.
- Organizational. A common example is a change in the form of an enterprise in the event of a division, merger or reorganization.
- Technical. These include equipment upgrades that require employee training, or equipment breakdowns. Technical reasons can be a consequence of the actions of both the employee and management. If the employee’s guilt is proven, then payment for downtime is not provided.
The legislator does not single out force majeure circumstances (emergency situations, disasters) as special reasons, but in fact they relieve the employer of blame and change the formation of wages during this period.
How is an employee's time paid?
Labor Code of the Russian Federation in Art. 157 established the norm on the minimum wage for employees during the suspension of activities. In this case, the calculation procedure depends on the reasons that led to it. Guaranteed payment for downtime due to the obvious fault of the employer is 2/3 of the employee’s average earnings. It includes not only the tariff rate, but also allowances, bonuses and other required payments.
An example of such a calculation - let the salary be 20,000 rubles + a guaranteed monthly bonus of 50% of the tariff rate. The calculation for 5 days looks like this: (30000/29.3) * 5 (days) * 2/3 = 3412.97 rubles.
In the event of force majeure, payroll changes and payment for downtime due to circumstances beyond our control will be 2/3 of the salary. For employees working at a tariff rate, there is no difference, but in production most often they set a small salary, and decent wages are formed through incentive bonuses. Therefore, managers try to prove their innocence in causing difficulties so that downtime is paid at a lower rate.
If during this period an employee goes on sick leave, he will not be granted sick leave. When sick leave begins before the suspension of production or ends after it, the calculation is made for the days actually worked. The employer is responsible for failure to pay compensation during downtime. In this case, he faces a fine and possible loss of his position.
Procedure for registration of downtime
If reasons arise that lead to a disruption in production, the employee can inform management, both orally and in writing, about the start of downtime due to the fault of the employer and the inability to continue working. The management itself can initiate registration of downtime, but is reluctant to do so, thereby increasing its costs.
The Labor Code of the Russian Federation in Article 91 gives the employer the obligation to keep a log of hours worked by each employee in the approved form. It must indicate downtime. .
Step by step procedure:
- The employer issues an order on downtime, indicating the start date, a list of employees whose work is suspended and their responsibilities, and the amount of salary for this period.
- The downtime order is handed over to employees for review against signature.
- If the enterprise has completely stopped production, then within 3 days the management reports this to the employment service.
- An appropriate note is made on the working time sheet.
The employer may offer affected employees to temporarily transfer to another position while maintaining average income or to take a vacant position with higher or similar qualifications.
Example of an order:
If management does not begin the registration procedure, then employees can draw up a collective act of downtime in free form, outlining the reasons and circumstances of the incident. It is transferred either to the board of directors of the enterprise or to a trade union organization.
Act template:
Responsibilities of the employee
What do employees do during downtime? This issue is resolved individually between them and the employer. The order must reflect the time or schedule of workers’ stay on site. In any case, forced downtime due to the fault of the employer does not constitute additional leave, and employees must be present at production.
The employer may offer them to stay at home, but this fact is documented. Otherwise, missed work days will not be paid. Management sometimes uses a trick and offers to give employees leave without pay. In this case, employees also lose the right to compensation.
The suspension of the enterprise's activities is unpleasant for both sides of the issue. Timely registration of downtime will allow you to maintain long-term relationships with employees and quickly restore production.
Question: What is the procedure for registering downtime in an organization due to the fault of the employer due to lack of orders?
Question:
What is the procedure for registering downtime in an organization due to the fault of the employer due to lack of orders?
Lawyer's answer:
The procedure for registering downtime is not established by law.
An employer can regulate the procedure for recording downtime in its local documents in accordance with the recommendations given above.
Legal basis:
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 of the supply of raw materials, or financial difficulties. The downtime 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 employer's fault is subject to payment in the amount of at least 2/3 of the employee's average salary (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 downtime 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 the average salary (approved by Decree of the Government of the Russian Federation dated December 24, 2007 No. 922). In this case, all payments provided for by the organization’s remuneration system are taken into account: official salary, bonuses, allowances, etc. When paying for downtime for which neither the employer nor the employee is at fault, at least 2/3 of the tariff rate (official salary), calculated in proportion to the time, is paid 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.
There are no standard forms of documentation for formalizing the suspension of labor activity of employees of an enterprise. The employer must develop them himself, taking into account the document flow system adopted at the enterprise.
In our opinion, we can identify a number of documents that are the basis for issuing an order for downtime:
An official memo addressed to the person acting as the sole executive body of a legal entity from the head of a structural unit whose competence includes the organization of work and access to information about the beginning of downtime.
Downtime record sheet. The standard form of such a sheet is not established by law. Typically, 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 downtime occurred.
Act of demurrage. As a rule, it is drawn up by the heads of idle structural divisions, accounting, personnel departments, labor protection, a representative of the workforce, etc. The act reflects the reasons and duration of downtime, positions of employees, etc. The act is subject to approval by the head of the organization.
Although the Labor Code does not provide for the employer’s obligation to issue an order for downtime, in our opinion, it is necessary to resolve organizational issues (including the procedure for remuneration). In addition, the order is needed to notify employees of downtime.
Based on orders, memos, acts or sheets about downtime, a working time sheet is filled out according to forms No. T-12 or T-13, approved by Resolution of the State Statistics Committee of Russia dated 01/05/04 No. 1. In the appropriate columns, you must indicate the alphabetic or numeric downtime 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 duration of unworked time (in hours, minutes).
In addition, the enterprise must notify the employment service about the suspension of production. A written notification of this must be sent within three working days after the relevant decision is made (clause 2 of Article 25 of the Law of the Russian Federation of April 19, 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 formalize the end of downtime with a special document, since its duration is reflected in the order and the working time sheet.
Order on downtime due to the fault of the employer
A selection of the most important documents upon request Order on downtime due to the fault of the employer (regulatory acts, forms, articles, expert consultations and much more).
Regulatory acts. Order on downtime due to the fault of the employer
(as amended on November 18, 2011)
Articles, comments, answers to questions. Order on downtime due to the fault of the employer
Arbitrage practice. Order on downtime 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 work performed. The buyer refers to payment by him for the cost of failed equipment and forced downtime.
For downtime caused by 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). Labor (collective) agreements or internal regulations on remuneration in an organization may establish payment for idle periods in a larger amount, for example, 75% of the employee’s average earnings. When calculating average earnings, you must be guided by the Regulations on the specifics of the procedure for calculating average wages, approved by Decree of the Government of the Russian Federation of December 24, 2007 N 922 (hereinafter referred to as the Regulations on Average Earnings).
For any duration of downtime (several hours or several full working days), payment is made based on the employee’s average daily earnings. The amount to be paid is determined by multiplying the average daily earnings by the number of working days of downtime to be paid (clause 9 of the Regulations on Average Earnings). If the duration of downtime is less than one working day, the average daily earnings are divided by the number of working hours in a shift and multiplied by the downtime (in hours).
Let us recall that in accordance with clause 2 of the Regulations on Average Earnings, the calculation takes into account all types of payments provided for by the organization’s remuneration system, regardless of the sources of these payments.
Production downtime means stopping the company's activities. During this period, the employee is deprived of the opportunity to work. The question arises: is he required to be present in the organization during downtime? Yes, I must. After all, for an employee, downtime is working 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 the appropriate local regulation. Moreover, even if employees are not present at work, the employer is obliged to pay them for all downtime.
How to write an order to declare an enterprise downtime
Order to declare downtime
Announcement: When analyzing the financial and economic activities of the enterprise, including the efficiency of personnel, it was found that the job descriptions of some employees need to be revised. Because the volume of work they perform for one reason or another has decreased, but wages have remained at the same level. The task is to exclude unnecessary functions from job descriptions and, accordingly, reduce employees’ wages.
To justify this to the labor inspectorate, it is necessary to document how long the downtime lasted, which of the workers got into it, and for what reasons it happened. After all, the amount of earnings of employees will depend on this.
The legislation does not say which document is used to introduce and terminate idle time at an enterprise. The most obvious way is to issue an order from the manager. Such an order does not have a unified form, so this document can have any content. The order to declare downtime must be as detailed as possible:
First, it should list the reasons for downtime. For example, they may be a lack of orders, short delivery of raw materials, delays by buyers, delays in financing, etc. In order to refer to such circumstances, real confirmation is required. In particular, you can provide specific details of contracts expired by counterparties. This is necessary in order to prove whose fault the downtime occurred. If it is the fault of the employer, then during the lull in production the employee must be paid at least 2/3 of his average earnings (Part 1 of Article 157 of the Labor Code of the Russian Federation). In this case, the letter value “RP” is entered in the report card. If the reasons are objective, then employees are awarded at least 2/3 of the salary in proportion to downtime (Part 2 of Article 157 of the Labor Code of the Russian Federation), and “NP” is noted on the report card.
Secondly, the order cannot do without the beginning and end of the downtime. Everything is clear about the first date. 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 the employee’s earnings can be calculated. If the downtime does not end by this day, it can be extended by an additional order. If, on the contrary, it ends earlier, then the early termination is also formalized by order.
Thirdly, be sure to note whether downtime has been declared throughout the company or in relation to individual employees of a certain department (list them). At the same time, employees are required to be present at the workplace unless the order contains permission not to go to work.
Sample order to declare downtime
Limited Liability Company "SeverPromInvest"
No. 1160-ls dated 06/15/2010
downtime announcement
From June 1 to June 15, 2010, the company did not accept a single order by phone or email for repair work of water supply networks. 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 1, 2010 inclusive for the following order receiving service employees:
Olga Ivanovna Ivanova – operator for receiving and processing orders,
Olga Petrovna Petrova – email processing manager.
2. The employees specified in paragraph 1 of this order have the right not to go to work during downtime. Based on the order, they may be called to work early.
3. Chief accountant Sidorova P.M. provide payment for downtime of Ivanova O.I. and Petrova O.P. in the amount of two-thirds of the salary, calculated in proportion to downtime. The calculation is carried out on the day of payment of wages established by the internal regulations.
4. Head of the HR Department V.P. Lebedeva ensure that downtime is recorded and familiarize workers with this order.
5. Entrust control over the execution of the order to the chief accountant P.M. Sidorova.
General Director of SeverPromInvest LLC ______________________ Berkutov A.P.
The following have been familiarized with the order:
O.I. Ivanova 06/15/2010
O.P. Petrova 06/15/2010
Registration of downtime
Magazine: Personnel Directory
Topic: HR documents, Remuneration
Due to the current economic situation in the country, disruptions in the activities of enterprises are often observed. The forced suspension of the work of an organization (or an employer - an individual) or its individual structural divisions is caused by a difficult financial situation, a shortage of raw materials, components, interruptions in the power supply and other reasons beyond the control of employees. The practice is to stop production, including at the largest factories in the country, which are 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 personnel.
The Labor Code (Part 3 of 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 responsibilities 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 for a specified labor function and to provide working conditions provided for by labor legislation. Based on this, when downtime occurs 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 make appropriate payment for downtime.
Downtime may also occur in the following cases:
1. Removal 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 examination through no fault of his 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 providing him with another job for objective reasons is impossible (Part 5 of Article 220 of the Labor Code of the Russian Federation).
3. Refusal of an employee to work in the event of failure to provide individual and collective protective equipment in accordance with established standards (Part 6 of Article 220 of the Labor Code of the Russian Federation). The acquisition by the employer at his own expense and provision of such means free of charge to employees, as well as control over the correct use of protective equipment is the direct responsibility of the employer. Therefore, a period of downtime caused by such a reason must be considered as downtime caused by the fault of the employer.
4. The employee’s inability to perform work duties in connection with the strike (Part 6 of Article 414 of the Labor Code of the Russian Federation). For workers who did not participate in the strike, but due to the strike were unable to perform their work and who declared in writing the start of downtime due to this, compensation was established for downtime through no fault of the employee.
Downtime Prevention Measures
In accordance with labor legislation, 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 an employee without his consent for a period of up to one month to a job not stipulated by the employment contract with the same employer. However, such a transfer is only permissible 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. disasters of a natural or man-made nature, industrial accident, industrial accident, fire, flood, famine, earthquake, epidemic or epizootic, or any exceptional cases that threaten the life and normal living conditions of the entire population or its parts. The second condition: such a transfer without the employee’s consent is possible only taking into account his qualifications, since a transfer to a job requiring lower qualifications is possible only with the employee’s consent.
In addition, if there is downtime for the employee 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 place of work - until this employee leaves to work.
Finding an employee at the workplace
Downtime is a temporary forced suspension of work. If the employee is not on vacation, on a business trip, or absent for another valid reason, then he is required to be at the workplace, not participating in the production process. Even if the downtime continues for a long time, the employee is obliged to report to work on time every day and be 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 during downtime. But it should be remembered that in this case we are not talking about providing vacation. The employee must be ready to come to work and begin performing work functions at the first request of the employer. If an employee is absent from work without the consent of the employer, then his absence can be regarded as absenteeism with all the ensuing consequences.
Registration of downtime 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 unaware of the fact of downtime (for example, due to equipment breakdown and other reasons that make it impossible for the employee to continue performing his job function), the employee is obliged to notify the immediate supervisor or other representative of the employer about the start of the downtime.
The legislation does not establish in what form the employee must do this (written or oral). 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 of receiving such a message the employer has obligations to pay for downtime, which is important. Otherwise, for example, if the employee is subject to a piecework wage system, his failure to comply with labor standards due to downtime will require additional evidence of the absence of his guilt. In the absence of such evidence, payment of the standardized part of the salary will be made in accordance with the volume of work performed in accordance with Art. 155 Labor Code of the Russian Federation.
A necessary condition for paying for downtime is to determine the beginning and end of the downtime period. In this regard, it is advisable to document the fact of downtime, for example, draw up a corresponding act ( application 2) or send a memorandum ( application 3) the head of the organization. These documents must indicate the date and time the downtime began, its duration, reasons for occurrence, etc.
These documents will serve as the basis for the employer to issue a downtime order. There is no unified form of order for downtime. It is drawn up in free text form on the order form 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 order for downtime 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 workers to be present at the workplace or to exempt workers from being present at the workplace. This will allow you to subsequently avoid conflicts on this issue (for example, if the employee states that he received verbal 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 any additional guarantees for certain categories of workers when declaring 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 must be reflected in the working time sheet, which is maintained according to unified forms No. T-12 or No. T-13, approved. Resolution of the State Statistics Committee of Russia dated 01/05/04 No. 1. In column 4 of form No. T-13 or in columns 4 and 6 of page 2 of form No. T-12 the alphabetic or numeric downtime code is reflected. Please note that depending on the reasons for the downtime, a different code is entered on the timesheet.
Expert opinion
Orlova E.V., deputy General Director of JSC "ASM Audit"
Please note: Federal Law No. 287-FZ dated December 25, 2008 amended Art. 25 of the Law of the Russian Federation dated 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 authority in writing about the suspension of production within three working days after making a decision on this (the same as when introducing 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.
There is no direct liability for the employer’s failure to fulfill this liability obligation. However, the employer may be required to
administrative liability under Art. 19.7 “Failure to submit information (information)” of the Code of Administrative Offenses of the Russian Federation: for failure to submit or untimely submission to a state body (official) of information (information), the submission of which is provided for by law, which entails the imposition of an administrative fine: for legal entities (employer) - in the amount of 3000 rub. up to 5000 rub. for officials (managers) - in the amount of 300 to 500 rubles.
With regard to documenting downtime, there is a practice of maintaining downtime sheets, downtime reports or other similar documents designed to record the specific downtime of each employee. A unified form for such documents has not been established, therefore the employer has the right to develop it independently, including the mandatory 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 downtime, its causes and those responsible (if identified). They can calculate the employer's losses from downtime, in particular the amounts to be paid to employees during the period of downtime, salary taxes on them, depreciation charges for idle fixed assets, utility costs for mothballed premises, etc.
A downtime record sheet or other similar document is usually signed by the head of the idle structural unit, since he is responsible for correctly indicating the downtime period and its culprits. The document containing the calculation of losses incurred by the employer is also signed by the responsible accountant.
Code entered in the time sheet depending on the reasons for downtime
Under the code you must indicate the duration of the downtime. If the downtime did not last the entire working day, but only part of it, then additional lines are entered into the timesheet in order to reflect exactly how much time the employee was idle.
Payment for the period of temporary incapacity for work during downtime
NA No. 3‘2007 Issues of payment for temporary disability during downtime are regulated by Federal Law dated December 29, 2006 No. 255-FZ “On the provision of benefits for temporary disability, pregnancy and childbirth to citizens subject to compulsory social insurance.” According to paragraph 7 of Art. 7 of this Law, temporary disability benefits for a period of downtime are paid in the same amount as wages are maintained 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 higher than the amount of benefits that this employee would receive according to the general rules for calculating benefits.
NA No. 2'2009Federal Law No. 216-FZ dated November 25, 2008, which approved the budget of the Social Insurance Fund of the Russian Federation for 2009, established the maximum amount of temporary disability benefits (with the exception of benefits paid in connection with an industrial accident or occupational disease) for full calendar month in 2009 – no more than 18,720 rubles.
creative simple
ON 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 does not constitute idle time during which creative workers, media workers, cinematography organizations, television and video crews, theaters, theatrical 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, theatrical and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, features of labor activity which are established by the Labor Code of the Russian Federation, approved. by Decree of the Government of the Russian Federation dated April 28, 2007 No. 252, do not participate in the creation or performance (exhibition) of works or do not perform.
The specified time can be paid in the amount and in the manner established by the collective or labor agreement, local regulations.
By the way
In the first quarter of 2009, Monti LLC (the employer) committed a number of violations of labor legislation: sending a number of employees on “forced” (“administrative”) unpaid leave; introducing part-time work for a five-day work week in the form of a part-time work week (four days) for individual workers actually at the initiative of the employer.
Thus, according to the order dated January 19, 2009 No. 25 “On the work of Monti LLC in times of crisis” (hereinafter referred to as the Order), in order to preserve the production and economic activities of the company in the conditions of the negative impact of the financial crisis in order to save the wage fund in the period from 19 January to December 31, 2009, directors in 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 of part-time work with their consent time (at the rate of one day of vacation per week or an incomplete four-day working week).
Based on the Order, the employees listed in this document, who chose to take unpaid leave, submitted monthly applications to the General Director with a request to provide them with “administrative” leave for 4 specific days of the corresponding month (at the choice of such employee).
In particular, the statement of process engineer A. recorded a request for “administrative” leave on February 5, 12, 19 and 26, 2009, and in the statement of equipment repairman M. - on February 4, 11, 18 and 25, 2009, respectively .
In these documents, the employees did not indicate the reasons (circumstances) for granting “administrative” leave. Meanwhile, indicating the reason (circumstances) in this case is aimed at protecting the interests of the employee. The only legal reason for such leave can be family circumstances and other valid reasons. However, an analysis of the text of the Order allows us to establish something else: this is a financial crisis and the need to save wages.
According to Art. 128 of the Labor Code of the Russian Federation, leave without pay can be granted to an employee for family reasons and other valid reasons upon his written application. In this case, the duration of this leave is determined by agreement of the parties.
It seems that family circumstances and other valid reasons mean social needs that have arisen in the personal life of the employee, therefore the initiative to provide this leave must 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 leaves 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 leaves without pay at the initiative of the employer,” approved. Resolution of the Ministry of Labor of Russia dated June 27, 1996 No. 40, which to this day has retained its legal force (to the extent that does not contradict the Labor Code of the Russian Federation), emphasizes: “forced” leaves without pay at the initiative of the employer are not provided for by labor legislation.
Thus, the Labor Code of the Russian Federation does not give the employer (Monti LLC) any reason to shirk the performance of their duties, in particular from providing work and timely payment in full, even in cases of financial difficulties, including during an economic downturn in conditions of the financial crisis.
In addition, by granting such “administrative” leave, the employer infringes on the labor rights of employees provided for in Art. 157 Labor Code of the Russian Federation. The situation that arose in Monti LLC should be regarded as nothing other than downtime due to the fault of the employer, subject to payment in the amount of at least two-thirds of the employee’s average salary (Part 1 of Article 157 of the Labor Code of the Russian Federation).
Let us remind you: if employees, through no fault of their own, are unable to fulfill the duties stipulated by the employment contracts concluded with them, the employer is obliged to pay for 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 a specific list of circumstances (reasons) beyond the control of the employer and employee under which Part 2 of Art. 157 Labor Code of the Russian Federation.
In fact, on the initiative of the employer, based on 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 to the provision of unpaid leave, due to economic reasons, which does not comply with the standards of Parts 1 and 5 of Art. 74 Labor Code of the Russian Federation. At the same time, employees were not offered to enter into additional agreements to employment contracts providing for amendments to such a mandatory condition for inclusion in the employment contract as working hours and rest time, which does not comply with the requirements of Art. 57 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 Labor Code of the Russian Federation.
The listed violations of labor legislation may result in the employer (Monti LLC) being brought to administrative liability in the form of a fine in the amount of 30,000 rubles. up to 50,000 rub. 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 liability does not exclude the possibility of bringing the head of the organization to such liability 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. Deputy General Director of JSC "ASM "Audit"
Annex 1
An example of an employee’s application for the start time of downtime
In any company, there may be cases when its activities are interrupted.
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Such interruptions are short-term in nature and may be associated with interruptions in the supply of raw materials, equipment breakdown, natural disaster, crisis situation, etc.
Resolving such situations requires some time. The considered problems can provoke a lack of work for company employees.
The legislator has provided for a procedure for establishing a break in the activities of a company to protect the interests of workers. Such a “break” in the Labor Code of the Russian Federation is referred to as “simple”.
Declaring downtime is considered as a method of maintaining production and employees during a period of temporary suspension of activity.
Its introduction raises many questions for the employer, for example:
- in what cases it can be declared;
- maximum permissible downtime periods;
- for how many employees;
- etc.
You can get answers to these questions in the current legislation of the Russian Federation.
General points
It should be noted that downtime is not always the employer’s fault. The legislation provides that it can arise through the fault of the employee, as well as due to reasons independent of the will of the parties.
In different situations, the process itself will be formalized differently, and the payment procedure will also be different, etc.
The employee's fault for downtime may be due to the breakdown of equipment and mechanisms, which entails the inability to work on it.
In general, many points remain unclear. The procedure is not regulated in detail by law. It is not explained and raises various questions.
How is downtime due to the fault of the employer paid at the enterprise?
The procedure for compensating downtime is defined in Art. . This norm stipulates that in situations where he is educated through the fault of the employer, the employee receives at least 2/3 of the average salary.
If the downtime occurs for reasons that do not depend on the employee and the employer, then the worker is paid no less than 2/3 of the salary.
When the employee himself is to blame for downtime, he does not receive payment. So, if we are considering suspension of work for reasons that depend on the employer, then we should focus on the concept of “average earnings.”
It is he who will influence the amount of compensation for downtime due to the fault of the employer. The concept of “average wage” is given in. How to calculate it? According to a single process approved by the Labor Code of the Russian Federation.
When making calculations, all types of payments that apply to the relevant employer are taken into account. Moreover, the source of their conduct is not taken into account.
The calculation is made using the same formula regardless of the employee’s working mode. Average wages are determined for the last 12 months that preceded the downtime period.
To make the calculation, all payments received by the employee are summed up and then divided by 12 (the number of months).
From the obtained value, 2/3 is calculated - this is the amount of wages for the period of downtime due to the fault of the employer.
Please note that in Art. 139 of the Labor Code of the Russian Federation, the legislator allows for the possibility of a different procedure for carrying out calculations, including a different period for calculating wages.
Such rules can be established in the local regulations of the organization. They will act if they do not worsen the worker’s situation in comparison with what is approved in.
What are the reasons
All reasons for downtime can be classified into three groups:
- arising through the fault of the employee;
- arising through the fault of the employer;
- arising due to circumstances beyond the control of the employee or employer.
We are interested in the second group of reasons - simple ones due to the fault of the employer. What are these circumstances? Let's consider the main ones:
| Removal from an employee's activities | Who was unable to undergo training or medical examination through no fault of his own |
| Suspension of an employee | Due to delay in compensation of his wages for more than 15 days |
| Strike | Which is recognized as legal for workers who did not take part in it, but are deprived of the right to perform a labor function |
| Refusal of an employee to perform a job function | Due to the lack of provision of personal and collective protection items |
| Refusal of a worker to perform job duties | If this is associated with a danger to his life and health |
| Suspension of work due to company reorganization | Liquidation of structural units, etc. |
| Administrative suspension of the functioning of an enterprise in cases | Approved in |
| Failure of the enterprise to fulfill obligations under agreements with counterparties | What caused the shortage of raw materials |
| Lack of demand for goods | — |
| Entrepreneurial risks | — |
Please note that the crisis, that is, negative economic processes, is also the fault of the employer. Workers must be compensated for downtime according to the rules of Art. 157 Labor Code of the Russian Federation.
Often, enterprises require employees to write applications without pay.
Please note that this is illegal. Providing this type of rest is allowed only by virtue of the will of the employee himself.
Registration of notification
We have already mentioned such a document as a notice of downtime, which is sent to the employment service. This obligation operates in accordance with the provisions of Art. 25 of Law No. 1032.
We remind you that it should be sent only when downtime is announced throughout the enterprise as a whole. The laws do not provide any requirements for the content of the notice.
It is formed in any form. The notification must include the following information:
A copy of the downtime order issued by the manager can be attached to this notice. Please note that individual employment centers have their own forms of this notice.
In this case, you need to prepare a document based on the approved example. Failure to provide this notice may subject the employer to action penalties.
Sample order
An order to declare downtime is a document, the preparation of which is not mandatory under the Labor Code of the Russian Federation.
But it is advisable to formalize it, since it addresses organizational issues, for example, those related to the process of compensating for downtime. It can also be used to notify all workers of the suspension of activities.
The order must include the following information:
| date | Start and finish idle time |
| Reason for downtime | Guided by those presented in the Labor Code of the Russian Federation |
| Whose fault was it that the downtime happened? | If it's already installed |
| , full name of workers or name of structural divisions of the company | In respect of which it is announced |
| Order | Downtime compensation |
| The need for workers to be present at work places | Those affected by downtime, or releasing them from this obligation |
You can specify an estimated end date for the downtime. If it is not terminated by this date, then the deadline may be specified in an additional order. It is also permissible to draw up an act for early termination.
Drawing up an application
An application for downtime is submitted by an employee when a reason for suspension of activities is identified. He must report it to his manager or employer.
This obligation is approved in Art. 157 Labor Code of the Russian Federation. Failure to comply is considered as non-compliance with labor discipline, which may become a reason for disciplinary action ().
The application must include the reason, the beginning of the downtime, and a signature.
FAQ
Downtime is a phenomenon that accompanies the work process for various reasons. However, the law pays little attention to this issue and regulates only certain aspects.
It is because of this that various questions and controversial issues arise in practice. Let's look at some of them.
Where should the employee be at this time?
Downtime means that workers do not perform their labor functions. However, this does not mean that they can be absent from the workplace.
This is also due to the fact that downtime can end at any time. Downtime is not a time of rest for a worker.
Therefore, employees must remain at the workplace, unless otherwise provided in local regulations or downtime orders.
Thus, workers will be released from the obligation to be at work during downtime, only by decision of the employer.
Designation in the working time sheet
According to this normative legal act, benefits for the period of downtime are reimbursed in the same amount as wages are maintained for this period, but not more than the amount of benefits that this worker would receive according to the general rules for their calculation.Labor legislation allows workers to be declared idle due to the fault of the employer. This procedure was supposed to give the latter the opportunity, under unfavorable circumstances, to suspend work processes and pay staff only 2/3 of average earnings. However, employers often use this opportunity not for objective reasons, but wanting to exclude unwanted or unnecessary employees from the company’s business processes. In this case, employees do not always agree with this formulation of the issue, because declaring downtime may be one of the steps taken by the employer in order to force the employee to resign. The law and the established practice of its application indicate that the employer’s will in itself to declare downtime due to his own fault is not enough.
Judicial practice pays attention to whether the employer has real circumstances that caused the announcement of downtime. Let us turn to court decisions that will allow us to draw conclusions about the employer’s risks in the event of downtime declared on his initiative.
Legislative regulation of downtime due to the fault of the employer
First, let’s figure out what the essence of such a legal instrument as declaring downtime due to the fault of the employer is. In the Labor Code of the Russian Federation, frankly speaking, the provisions on downtime are very meager; there is no separate article devoted to it. The definition of downtime is given 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 occurs due to the fault of the employer, the fault of the employee, as well as for reasons independent of the will of the parties. It is on the factor of guilt and its subject that payment for downtime depends: in the case of the employer’s fault or if the reasons do not depend on the will of the parties, downtime is paid at the rate of 2/3 of the employee’s average earnings. If the employee is at fault, 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, machinery, etc., necessary for the performance of the labor function. And this kind of circumstances, such as non-payment by counterparties, lack of orders, etc., belong to the category of business risks, and these risks lie entirely with the employer; shifting them to the employee is unacceptable.
But what’s interesting is that even if the employer declares downtime due to his own fault, he should still do this only if there are objective reasons. After all, payment of 2/3 of the average salary 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, beginning and period of downtime, either before the start of downtime or directly on the start day. The most logical way to do this is by issuing an appropriate order. It also begs the question, should an 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 employee’s presence during this period is not required or, moreover, is undesirable, this must be indicated in the downtime order.
As follows from practice, this is what actually happens.
The question also arises: should the declaration 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 reasons such as re-equipment of the enterprise, etc., then its period can be predicted and indicated in the order. If it is difficult to determine the duration of downtime in advance, you can announce it, for example, for a month, and then issue an order to extend it. If the reasons for declaring downtime no longer exist, nothing prevents you from issuing an order to stop it and inviting the employee to get acquainted and then return to work. You can issue an order with an open end date for downtime, indicating, for example, “until the end of the reasons for declaring downtime.”
Judicial practice on the reasons for declaring downtime due to the fault of the employer
Simple as being forced to quit
The employer declared the employee downtime, forcing her to make a decision on dismissal (Cassation ruling of the St. Petersburg City Court dated May 25, 2011 N 33-7694).
The situation when an employer offers an unsatisfactory employee to resign, even if there are no obvious legal grounds for this, happens quite often. In this case, the employer can use various methods of pressure on the employee, trying to put them into legal form.
In the example under consideration, the plaintiff, without any real reasons, was declared idle time with the preservation of 2/3 of her average earnings. She was allowed not to be present at the workplace, and her pass was blocked from the start date of the downtime. As a result, the plaintiff resigned by agreement of the parties, and then went to court with various demands, including invalidation of the downtime order and collection of underpaid amounts.
The Court of Cassation concluded that the employee was illegally removed from work - both by order of downtime and actually not allowed to enter the workplace - and was 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 entire average earnings.
Downtime until redundancy due to lack of trust
The employee was placed on idle time until he was laid off in order to prevent him from accessing information systems in a situation of acute mistrust 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 demurrage order in court.
It all started with the fact that the employer issued an order about the upcoming reduction of some positions and divisions in the company, including the position of director of information technology. The same order ordered the director of the IT service to transfer all information on access and work in IT systems for the purpose of conducting an audit, and was also prohibited from accessing the company’s IT systems. However, a violation by the employee of this order was recorded, after which he was declared idle time with an “open” date - until further notice from the general director - and ordered not to go to work. At this time, the company, with the help of an external organization, carried out an audit of IT systems. However, even after the completion of the audit, the plaintiff was not allowed to work; the downtime lasted until his position was reduced 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, gave the following arguments. Thus, the defendant had no legal grounds for imposing downtime against 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 assessment by the court considering a 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 within his power to stop downtime and provide the employee with the opportunity to perform labor duties stipulated by the employment contract.
However, the plaintiff was actually suspended by the employer from performing his job function until his dismissal. The employer did not prove the inability to provide him with work in his position for the period of the IT systems audit. And even after the end of the audit, the company did not terminate 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, due to the groundlessness and illegality of the downtime, the court recovered in favor of the employee the difference between the payment for the downtime and his average earnings for the period of illegal downtime.
Downtime on the eve of liquidation
The workers failed to recognize the downtime they declared illegal, since the employer was facing liquidation (Appeal ruling of the Moscow City Court dated July 2, 2013 in case No. 11-20513/2013g).
A group of four workers filed a lawsuit to declare their downtime declared illegal and to pay them underpaid wages during the downtime. The situation in which they were declared downtime looked like this. The employer notified the employees of their upcoming dismissal due to the liquidation of the organization (clause 1, part 1, article 81 of the Labor Code of the Russian Federation). The employees were declared a downtime, which they did not agree with.
However, the court accepted the employer’s position on the legal introduction of downtime in relation to employees. Thus, the orders announcing it contained the following wording: “due to organizational reasons, expressed in a change in the organizational structure of the LLC, lack of work for certain positions established by the staffing table, with payment for downtime, exemption 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 a negative trend in business development, the defendant’s sole participant submitted a message to the Interdistrict Inspectorate of the Federal Tax Service of Russia No. 46 for Moscow about the liquidation of the LLC, on the basis of which information was entered into the Unified State Register of Legal Entities about the start of liquidation .
Thus, the court came to the conclusion that the employer had a legal reason for declaring downtime, since there were reasons of an economic and organizational nature in connection with the difficult financial and economic situation of the company and its upcoming liquidation. Under such circumstances, workers had no reason to consider downtime illegal.
Job reduction as a reason for downtime
An upcoming job reduction is not a reason to declare downtime. This conclusion was reached by the Samara Regional Court in Determination No. 33-2390 dated March 15, 2011.
Thus, at the enterprise where the plaintiff worked, organizational changes occurred: the work that he performed was transferred to another division, where the same positions as his were introduced. In relation to the plaintiff's position, a decision was made to reduce it, and vacancies were offered to him. The plaintiff initially agreed to the transfer, but then refused. After which he was declared downtime, which the plaintiff contested. The cassation court declared the removal of an employee during idle time 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 repairmen - colleagues of the plaintiff - has not changed; this work continues to be performed by the same number of mechanics, but transferred to another department due to changes in the staffing table. Despite the organizational changes that took place, the plaintiff’s labor function did not go away; there was an opportunity to provide him with work.
Thus, he was effectively suspended from work, since the employer had the opportunity to provide him with work and payment of appropriate wages. The employee’s consent to the transfer and subsequent refusal cannot serve as a basis for placing the plaintiff on downtime.
In addition, the beginning of the dismissal procedure for staff reduction in relation to the plaintiff is also not grounds for layoff, since such a dismissal procedure is not provided for by labor legislation. Accordingly, the order to remove the employee during downtime was declared illegal, and the company was charged with underpaid wages for the period of downtime.
A similar case is described in the Appeal ruling of the Samara Regional Court dated April 15, 2015 in case No. 33-4065/2015. Due to the fact that the enterprise that served Russian Railways had completed its component supply program and there were no requests for new supplies, the plaintiff was declared idle, and then notified of the upcoming procedure for reducing his position. 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 his average earnings.
Of interest in this case is how the court interprets the concept of downtime and expresses its opinion regarding its introduction for the period preceding the reduction of position. He points out that the use of the concept of “downtime” is associated with extraordinary circumstances that do not allow the employer to ensure the work of the organization. The plaintiff was suspended from performing his labor function citing an insufficient amount of work and a decrease in the volume of orders. Moreover, during the downtime period, the work that he was supposed to carry out in accordance with his job responsibilities was performed by other employees of the organization.
The court came to the conclusion 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 his obligation to provide the employee with work in accordance with the labor function he performs. Consequently, the plaintiff’s labor should be paid in an amount not lower than the average wage in accordance with Part 1 of Art. 155 Labor Code of the Russian Federation.
The following remark of the court is also interesting: the employer in this case was obliged to enter into an agreement with the employee to change the terms of the employment contract determined by the parties in writing. However, no such agreement was concluded between the parties, and therefore the plaintiff’s payment in the amount of 2/3 of the average salary in accordance with Art. 157 of the Labor Code of the Russian Federation is unfounded.
Also, orders for idle time were taken by the employer in relation to the plaintiff during the period of his warning about the upcoming dismissal, while organizational and staffing activities in the defendant’s company during the period of warning about dismissal to reduce the number or staff of the organization cannot be the basis for remuneration of the employee in the amount 2/3 of average earnings. The issuance of a downtime order during this period must be caused by a temporary suspension of work. If, due to staff reduction, the employer does not expect the possibility of ending the downtime, then there are no signs of a temporary suspension of work.
The downtime was declared not in order to provide the employee with the opportunity to actually perform labor duties in the previous or another position, but was due to the period of warning about the upcoming dismissal.
In accordance with these arguments, the employer's orders for idle time were declared invalid, and underpaid wages were recovered in favor of the employee.
As can be seen from the norms of the Labor Code of the Russian Federation on downtime and the given examples of judicial practice, downtime is a kind of economic instrument designed to protect the interests of both the employer and the employee in the event that the employer, for objective reasons, cannot conduct its business activities as usual.
In a normal situation, when the reasons for downtime are real and objective, the interests of the employee and employer are balanced as follows: the employee receives a kind of compensation of at least 2/3 of average earnings for unfavorable circumstances for him in the form of absence of work, and the employer gets the opportunity to save money and not pay wages in full for the employee’s forced inactivity. The courts in their arguments emphasize that downtime must be motivated by reasons of an extraordinary nature, and not simply by the desire of the employer. As we can see from the examples given, the court only in the situation of liquidation of the company considered it justified to introduce downtime in relation to employees precisely because liquidation is an extraordinary situation and caused by objective reasons: the decision of the founder of the legal entity and the unprofitability of the company.
In the case when idle time 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 interests of the employee are infringed - he is deprived of the right to work and the right to full payment for his work. This case can be called an unfair application of the downtime procedure.
The main signs of an employer’s dishonesty when declaring downtime to an employee are the following:
1) no stoppage of business processes in which an employee who is on idle time 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 the layoff of workers;
4) preventing an employee from accessing the workplace and other company resources in the event of a conflict situation between the employee and the employer.
Thus, when deciding to introduce 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 determined by the will of the employer that do not allow the employee to perform his job function: suspension of business processes in which the employee is involved, liquidation, bankruptcy of the company, etc.;
2) if it is intended to transfer the duties of an idle employee to his colleagues or to another department, idle time cannot be introduced, since in this case the employer has the opportunity to provide the employee with work (which, by virtue of Article 22 of the Labor Code of the Russian Federation, is the employer’s responsibility);
3) the introduction of downtime cannot be motivated by an upcoming reduction in the number or staff of an employee if it is possible to provide him with work for the period preceding the reduction.
In conclusion, we would like to add that the main risk of unjustified downtime is the employee challenging it in court and recovering the amounts “saved” by the employer, as well as legal costs and compensation for moral damage.
Downtime at the enterprise has become not uncommon, which is due to the difficult economic situation in the country. This is a temporary cessation of the production process for technological, organizational or other reasons.
The Labor Code of the Russian Federation clearly outlines the rights and obligations of the parties to an employment contract during downtime.
In the event of a temporary cessation of the production process, the employee is obliged to notify his immediate superiors, indicating the reasons (equipment breakdown, lack of raw materials, emergency situation).
The employer is obliged:
- Find out the reasons, identify the culprits.
- Predict downtime.
- Provide for the employment of employees during this period.
- Complete the necessary documents.
P termination of work is formalized by the head of the enterprise according to the Labor Code of the Russian Federation.
- Relevant acts are drawn up.
- An order is created to send the employee on downtime, indicating the reasons, period and payment.
- A corresponding entry is made in the working time sheet with symbols.
- If an employee is transferred to a new place, his written consent is drawn up (for a period of one month) and an order is issued.
- When the downtime is of a private nature, and one employee is subject to transfer to another position, it is enough to draw up memo.
Regardless of whose fault the production was stopped, the preparation of these documents is necessary. This will prevent possible conflict situations.
Busy during downtime
In accordance with the Labor Code of the Russian Federation, during periods of absence from work due to the fault of the enterprise, all employees must be in their places. Excommunication is regarded as a violation of discipline, and absence from work is considered absenteeism.
A verbal agreement with management is not acceptable. It is also a violation of the law to be sent on unpaid leave.
An employer may transfer an employee to another place without his consent, but subject to:
- for a period of no more than one month;
- the position provided corresponds to the qualifications;
- the state of health does not contradict the proposed work.
A transfer for a period of more than one month or on conditions of lower qualifications requires the written consent of the employee.
The salary for a temporary job should not be lower than the salary for the main position.
Pay during downtime
Due to the employer's fault. Payment takes place in accordance with the Labor Code of the Russian Federation. Must be at least 2/3 of average monthly earnings. This is only possible if the required documents are completed correctly. Any verbal agreements without written confirmation will deprive the employee of payments.
Lack of work due to force majeure. These include natural disasters, military actions, government decrees banning imports or exports, and epidemics. Payment for downtime is 2/3 of the salary. It infringes on the financial interests of employees, since the main amount consists of allowances, bonuses, and additional payments. Therefore, here you need to “keep your eyes open.” Business owners are in no hurry to admit their guilt during business downtime in order to save money. Sometimes proof of this fact is only possible through court. The economic crisis in the country, dishonesty of partners, interruptions in the operation of railways and other transport routes are not force majeure. These circumstances relate to financial risks that must be taken into account when doing business. This should in no way affect the interests of hired specialists.
Downtime due to the fault of the employee. In the event of broken equipment, an accident, or absence on site, he himself bears the material damage. Time not fulfilling a labor function is not paid.
Social guarantees during downtime
The following rights provided for by Russian legislation are retained:
- Payment of sick leave, maternity leave produced in the same volume and under the same conditions as under normal operating conditions.
- Downtime, properly documented, included in the total length of service and must be taken into account when calculating pension benefits.
- The employee retains his place, regardless of where he is currently working.
- The period is not reflected in the work book and is taken into account when calculating benefits, as it is included in the insurance period.
- The right to annual paid leave according to the approved schedule is retained.
- The downside is that the time of production stop is not included in the length of service for calculating an early retirement pension.
Downtime of an enterprise is an unpleasant phenomenon, but not fatal. Knowing your rights and obligations and having completed the documents correctly, you can survive this period with minor losses.