How to register forced downtime during chemical treatment. How to register downtime due to the employer’s fault - payment procedure, sample orders and acts. Temporary transfer to another job in case of downtime

It happens that things go very badly at an enterprise. In this case, work has to be stopped, but the employees cannot be left anywhere. Therefore, an order is issued regarding downtime due to the fault of the employer; a sample relevant at this time will be given in the article. Properly executed downtime will not lead the employer to court. Therefore, the preparation of all documents must be approached as carefully and responsibly as possible.

Downtime calculation

There are few rules on downtime in the Labor Code of the Russian Federation. According to Article 72, Part 2, you can find out that downtime is a stop (temporary) due to a technological, technical, economic or organizational nature. And according to Articles 22 and 56, the employer must provide all its employees with employment in accordance with the contract. If this obligation is not fulfilled, the employer is obliged to make payments during downtime.

According to Article 157 of the Labor Code, in case of downtime due to the fault of the employer, employees receive no less than 2/3 of average salary. And if the reasons for downtime do not depend on the employer, then payment should be no less than 2/3 of the amount tariff rate(salary) of the employee. But if the downtime was due to the fault of the employee, then this time is not paid. When drawing up an act of downtime due to the fault of the employer, a sample of which is given in the article, it is important to take into account all the subtleties and pay attention to judicial practice in order not to make mistakes.

Incorrect identification of downtime type

There are three types of downtime according to the Labor Code:

1. Due to the employee's fault.
2. For reasons beyond the control of the employer or employee.
3. Due to the employer's fault.

Payment for downtime depends on its type. In practice, determining the cause of downtime is sometimes quite difficult. But this issue must be resolved, since incorrect identification of the reason for the downtime will affect the employer. According to the court's decision, he will have to compensate for moral damages and make additional payments. And if the employee contacted labor inspection, then penalties will be imposed.

What are the reasons for downtime?

List of reasons for downtime:

1. Consolidation, liquidation or division of divisions of a company are organizational reasons for the downtime of an enterprise.
2. Modernization, complete or partial replacement of equipment, breakdown - technological reason.
3. Implementation of new production methods or improvement of old ones.
4. The difficult financial situation of the employer, non-compliance with the contract by contractors, financial crisis- these are economic reasons.

The main criterion for downtime at an enterprise (the registration algorithm and payment depend on its type) due to the fault of the employer is his inaction, deliberate or accidental neglect of business risks. In this case, the employer must himself prove the absence or presence of downtime circumstances.

Very often, entrepreneurs refer to the fact that downtime occurs due to a significant deterioration in the economic well-being of the company. And they naively believe that the reason does not depend either on them or on the workers. This is not true, arbitrage practice shows that in a difficult economic situation at an enterprise there is always a culprit.

Reasons for downtime beyond the control of the parties to the contract

If we rely on judicial practice, we can identify several reasons for downtime, for which there are no culprits:

1. Weather conditions - high or low temperatures, smoke, etc.
2. Malfunction of the equipment on which the employee works (in the absence of intentional damage). If the breakdown occurred due to the fault of the employee, then he will be responsible for the downtime.
3. Orders of government bodies.

These are reasons in which downtime is not the fault of the employee or employer. In all other cases, there is a culprit, and he needs to be identified.

Lack of necessary documents

The HR department at the enterprise must prepare a set of documents that will confirm the legality of introducing the downtime mode. Information can be gleaned from judicial practice: when deciding to establish a downtime regime, the employer must keep in mind that there must be documents confirming the need to introduce this provision. If they are not there, then the downtime may be recognized by the court as unfounded.

The enterprise must issue an order declaring downtime (a sample is given in the article). According to the Labor Code of the Russian Federation, no mandatory requirements to the contents of the documents. The employer independently decides how it is more convenient for him to do it. An order to declare downtime will also be required for accounting to record expenses for tax purposes. Since the employer must register and pay for downtime at the enterprise, it is necessary to identify the exact reason. If there is downtime due to the fault of the employee, then the employer does not have to pay anything.

What should be included in a downtime order?

If we turn to judicial practice, we can find out that the order declaring downtime must contain the following data:

1. End and start date of downtime at the enterprise. Moreover, a specific number may not be set if at the time the order was issued it was impossible to determine the total duration of the downtime. The employer should draw attention to the fact that the Labor Code of the Russian Federation does not set a deadline for its introduction.
2. The reason for downtime is of a technical, technological, organizational or economic nature. It is imperative to describe the circumstances that led to the downtime.
3. The culprit of the downtime is the employee, the employer, or indicate that the reasons do not depend on the parties to the employment contract.
4. Professions and positions, personal data of employees (or structural divisions of the organization) for which downtime has been declared.
5. Amount of payment to employees during downtime. There must be a reference to the norms of the Labor Code of the Russian Federation.
6. It is imperative to indicate whether employees must be present at their workplaces. If necessary, you must indicate the name in the order structural divisions or data of employees who are allowed not to go to work on idle days.

This is all the data that must be indicated in the order declaring downtime. And it is imperative to recognize the downtime that has arisen due to the fault of the employer, if this is actually the case.

What documents can serve as a basis?

Labor legislation does not impose requirements for documents that may serve as the basis for issuing an order. It all depends on the kind of document flow in the organization. To issue an order, you can use one of the following documents:

1. A report or memo from the head of a department who is competent in organizing and monitoring work.
2. Downtime record sheet - the form of this document is not established by law. As a rule, this sheet contains the date and time of the start and end of downtime, personal data of employees and reasons.
3. Downtime report drawn up by the heads of the structural unit. It must indicate the duration and reasons, position and personal data of the employees.

The employer must keep in mind that in case of actual downtime (without issuing an order) and non-payment, the court will be on the side of the employee. The company is obliged to issue an order and make payment.

Should the employee be in his place?

The Labor Code makes no mention of workers being present at their places during declared downtime. But there is a nuance - downtime is included in working time (according to Article 91, Part 1 of the Labor Code) time. Rest time is regulated by Article 107 of the Labor Code. Therefore, the employee cannot use the downtime at his own discretion and leave the workplace.

And absence from the workplace without the permission of the employer is regarded as absenteeism. But the order declaring downtime contains a clause that specifies whether workers may not go to their workplaces. Therefore, in order to avoid disputes, this point must be clearly stated in the order. Otherwise, the employee may even be fired for absenteeism.

Issuance of an order by an unauthorized person

It must be taken into account that the downtime order must be signed only by the head of the enterprise or an authorized person. If it is signed by an unauthorized person, the order and downtime are illegal. If you turn to judicial practice, you can find many cases. For example, when an order was issued with the signature of the director of the organization. And after a thorough study, it turned out that he did not have the authority to do this, since bankruptcy management had previously been introduced at the enterprise. And only the bankruptcy trustee has the right to issue an order.

All employees must be familiar with the order. If the employee refuses to familiarize himself with the order, then it is necessary to draw up an act, which is signed by the commission. When drawing up, it is imperative to rely on a sample order to declare downtime. How to compose it correctly is discussed in our article.

Notification of the employment service and transfer of workers

If there is a need to suspend production, the employer must notify the employment service. But this should be done only in cases where all production is stopped, and not individual structural units of the enterprise. The employment service must be notified within three days after the decision to stop production was made. The message form is free, unified and not approved for this type of notification.

What should you do if an employee for whom downtime is declared is transferred to another job? Some employers practice transferring an employee to another job (without consent). In this case, the employer refers to Article 72.2 part 3 Labor Code. But you cannot resort to such a measure, since the transfer is permitted only in case of emergency circumstances - they are all listed in the second part of Article 72.2 of the Labor Code.

Incorrect registration of time sheets

According to Article 91 it can be found out that working time- this is the period during which the employee fulfills his job responsibilities in full compliance with the terms of the employment contract and rules internal regulations at the enterprise. Working hours also mean other periods that are regulated by federal laws and various legal acts. At the same time, the employer is assigned responsibility - he must keep records of the time worked by each employee.

According to the order for downtime caused by the employer, the accounting sheet must be filled out on the basis of sheets and acts of downtime, and official notes. The use of unified forms NT-12 and NT-13 is allowed; they were approved by a special resolution of the State Statistics Committee of the Russian Federation in 2004. It is necessary to indicate a digital or alphabetic downtime code and its duration. If the type of downtime is incorrectly indicated and a dispute arises, the court has the right to require the employer to accrue wages to the employee for the entire downtime.

Forced sending of an employee on leave without pay

If an enterprise issued an order for downtime due to the fault of the employer according to the model given in the article, and at the same time sent employees on unpaid leave, then this can be regarded as a violation of the law. There are two types of unpaid leave:

1. The employer is obliged to provide the employee.
2. The employer can provide.

The difference is only in one word. But in both cases, the initiative to provide remains exclusively with the employee; he must voluntarily express his will. There is no mention in the legislation that an employee can be sent on leave without pay at his request, but due to reasons that do not depend on him.

Back in 1996, the Ministry of Labor issued a clarification stating that unpaid leave should be provided to employees only at their personal request. good reasons or family circumstances. The best way out of the situation would be to draw up an order for downtime due to the fault of the employer (a sample is given in the article), as well as actions in accordance with labor legislation. Otherwise, controversial situations with employees may arise, which are resolved in the courtroom.

No order to end downtime

If the order for downtime due to the fault of the employer (a sample is given in the article) contains an end date, then when it occurs, the validity of the document is terminated. But if there is no end date, it is open, then at the end of the downtime it is necessary to issue a corresponding order, which must indicate:

1. Date of resumption of work.
2. Professions and positions, personal data of employees, names of departments of the enterprise starting work.

All employees must be familiar with the order upon signature. This will allow you to avoid future conflict situations. Every employer should know how to properly register downtime at an enterprise in order to prevent disputes with employees from arising in court.

To pay for downtime and account for payment amounts, it is necessary to draw up the appropriate documents, in particular an order for downtime due to independent reasons. A sample order can be downloaded from the link below.

What is simple?

The legislator pays little attention to downtime, and its concept is given in the article of the Labor Code, which regulates the procedure for temporarily transferring an employee to another job. In accordance with the officially defined concept, downtime should be considered a temporary suspension of work for reasons of an economic, technological, technical or organizational nature.

The reasons for downtime can be very diverse:

• edition authorized body non-normative act entailing suspension of the organization’s activities;
• equipment malfunction;
• license revocation;
• weather.

It is simply impossible to provide a complete list of circumstances that can cause downtime at an enterprise. But it is worth paying attention to the fact that they can become a reason for declaring downtime only if they are temporary in nature.

How to arrange a simple one correctly?

The legislator did not pay attention to this issue at all. The registration process was formed by trial and error based on the general norms of labor legislation.

The registration of downtime for reasons beyond the control of the parties should begin by drawing up an act that reflects the event or circumstance that caused the downtime.

• the reason for the downtime;
• the circle of employees for whom downtime is introduced;
• downtime period (start and end dates (times);
• amount of payment for the period of inactivity.

If the employer does not need the presence of employees at the workplace and he is not against employees not going to work, this should also be indicated in the order.

If the employer was unable to determine the end date of the downtime, the order may indicate the period of downtime as: “until the causes of the downtime are eliminated.” In this case, when those very reasons are eliminated, it will be necessary to issue a new order to end the downtime.

Download the order for downtime due to independent reasons.

Downtime notification

Orders on the introduction of downtime and on its end (if one was issued) must be familiarized to the employees in respect of whom downtime is introduced, against signature. If employees were not at work during the downtime period, then the end of the downtime should be notified in advance.

If the introduction of downtime affects the entire enterprise as a whole, it will have to be reported to the employment service. The notification can be drawn up in any form and sent to the employment service no later than three days after the issuance of the downtime order.

But the need to notify the trade union organization is not provided for by law.

How is downtime paid at an enterprise?

Having analyzed Art. 157 of the Labor Code of the Russian Federation, we can conclude that downtime can occur due to the fault of the employer, the fault of the employee, and also for reasons beyond the control of either party. Payment for downtime depends on the factor of guilt and its subject.

The amount of payment for downtime caused by the employer should not be less than 2/3 of the average wages.

If the introduction of downtime is not the fault of either the employee or the employer, then it is paid in an amount that should not be less than 2/3 of the employee’s salary or tariff rate. An employment contract or industry agreement may provide for a larger amount of downtime pay.

But downtime caused by the employee’s fault is not paid.

There are situations when things at an enterprise are not going as well as we would like, and we have to temporarily suspend work. What should be done with the employees in this case? Declare simple! To ensure that the introduction of downtime does not result in legal disputes, it is necessary to prepare all documents correctly. Let's study what mistakes employers make in such situations.

It is no secret that the norms of the Labor Code of the Russian Federation on downtime are few. According to 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. By virtue of Art. 22, 56 of the Labor Code of the Russian Federation, the employer is obliged to provide employees with work stipulated by the employment contract. If this obligation is not fulfilled, the legislator imposes liability on the employer in the form of payment for downtime.

According to Art. 157 of the Labor Code of the Russian Federation, downtime due to the fault of the employer is paid in the amount of at least 2/3 of the employee’s average salary. Downtime due to reasons beyond the control of the employer and employee is paid in the amount of at least 2/3 of the tariff rate, salary ( official salary), calculated in proportion to the downtime. Downtime caused by the employee is not paid.

With a rather "modest" legal regulation downtime, personnel services are forced to turn to judicial practice in order to avoid mistakes when registering downtime and to protect the employer from legal disputes. Let's look at what mistakes employers most often make when declaring downtime.

1. The type of downtime is incorrectly defined.

The Labor Code of the Russian Federation distinguishes three types of downtime: due to the fault of the employer, for reasons beyond the control of the employer and employee, and due to the fault of the employee. Depending on the type of downtime, the Labor Code of the Russian Federation provides for different amounts of payment for downtime. In practice, it can be difficult to establish whether the employer is at fault, or whether downtime arose for reasons beyond the control of either party to the employment contract. In case of incorrect determination of the type of downtime and the amount of payment, the employer will be forced, according to a court decision, not only to make additional payments, but also to reimburse moral injury, and if the employee contacts the labor inspectorate, he will also have to pay a fine.

For your information. There is no exhaustive list of reasons for downtime in the Labor Code of the Russian Federation. It can be:

— liquidation, merger or division of the company’s structural divisions (organizational reasons);

— introduction of new or changes existing methods production of products (technological reasons);

— breakdown, replacement or modernization production equipment(technical reasons);

— financial crisis, difficult financial situation of the company, violation of contractual obligations by counterparties (economic reasons).

The main criterion for downtime due to the employer's fault is that it is caused by the employer's guilty actions or inaction - both intentional and due to inept management and failure to take into account business risk. Moreover, the obligation to prove the existence of these circumstances rests with the employer (clause 17 of the resolution of the Plenum of the Supreme Court Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”).

Often, employers refer to the introduction of downtime due to the deterioration of the economic situation in the organization, believing that the reason did not depend on any of the parties to the employment contract. However, this opinion is wrong. Judicial practice does not support it.

Arbitrage practice. The Vladimir Regional Court, in its appeal ruling dated October 31, 2013 in case No. 33-3566/2013, noted that the negative financial position society (lack of orders) is a financial (commercial) risk in relations between entities entrepreneurial activity, therefore, refers to the direct fault of the employer.

Arbitrage practice. The Tula Regional Court, in its cassation ruling dated November 10, 2011 in case No. 33-3848, noted that a decrease in demand for manufactured products, the purchase of raw materials at inflated prices, and a decrease in production volumes are the fault of the employer.

Then the question arises: what will relate to reasons independent of the will of the parties? Let us turn to judicial practice and explanations of officials. According to them this is:

- issuance of orders government agencies(decision of the Moscow City Court dated July 15, 2010 in case No. 4g/2-5685/10);

— extreme weather conditions (see, for example, the recommendations of the Ministry of Health and Social Development on the organization of work and rest regimes in conditions of extreme temperatures and smoke dated 08/06/2010);

- breakdown of the machine of the employee who uses it, but is not to blame for its breakdown. For an employee who breaks a machine, the reason for downtime will be his culpable actions (letter of Rostrud dated May 12, 2011 N 1276-6-1).

2. There are no documents confirming the need for downtime

The HR department must put together a package necessary documents, which will confirm the legality of the introduction of downtime.

Arbitrage practice. The Moscow Regional Court, in its ruling dated November 1, 2011 in case No. 33-24455, emphasized that when making a decision to impose downtime, the employer must keep in mind that there must be commercial, accounting and other documents confirming the need to declare downtime. Otherwise, the court may find it unfounded.

3. Downtime is not documented

Labor legislation does not contain mandatory requirements for the content of documentation drawn up during downtime. Therefore, the employer decides for himself how best to do this. In any case, a demurrage order must be issued. By the way, the accounting department will need it to account for expenses for profit tax purposes.

Arbitrage practice. Since the amount of payment for downtime depends on the reason for its occurrence, each case of downtime must be documented, establishing its cause (definition Supreme Court Republic of Sakha (Yakutia) dated 02/03/2014 in case No. 33-321/2014, appeal ruling of the Kemerovo Regional Court dated 01/30/2014 in case No. 33-73-2014).

Based on judicial practice, the order should reflect:

— start and end dates of downtime. A specific end date may not be indicated if at the time the order is issued it is impossible to determine the duration of the downtime (labor legislation does not establish deadlines for its introduction);

- the reason for the downtime. Here you should indicate the nature of the reason: economic, technological, technical or organizational; describe the specific circumstances that led to the downtime;

— through whose fault the downtime occurred (the employer, the employee, or for reasons beyond the control of the parties);

- position (profession), full name. employees or names of structural divisions of the organization in respect of which downtime is declared;

— the need for the presence at the workplace of workers for whom downtime or permission not to go to work is declared (indicating specific full names, positions (professions), structural divisions or the organization as a whole).

Labor legislation also does not impose requirements for documents that serve as the basis for an order. Depending on the document flow in the organization, these may be:

— an official (report) note from the head of the structural unit whose competence includes the organization or control of the relevant work;

- downtime record sheet. Its form is not established by law. Usually it contains the date and time of the start and end of the downtime, full name. and positions (professions) of workers and reasons for downtime;

— an act of downtime, which is drawn up by the heads of idle structural units; it reflects the reasons and duration of downtime, positions (professions) of employees, etc.

By the way, it should be borne in mind that if there was actually downtime, but the employer, in violation of the law, did not issue an order to announce it and did not pay for downtime accordingly, this will not prevent the court from making a decision in favor of the employee.

Arbitrage practice. A division of the organization did not function due to a shortage of components, and SMS messages were sent to employees and calls were made to Cell Phones that there is no need to go to work. The Lipetsk Regional Court, in its appeal ruling dated October 2, 2013 in case No. 33-2607/2013, agreed with state inspection labor, which issued an order obliging the employer to recognize work time specified in the messages, downtime and pay employees for downtime.

4. The downtime order does not indicate whether workers should be present at their workplaces

The Labor Code of the Russian Federation does not contain a requirement for the mandatory presence of workers at workplaces during downtime. But since the downtime period refers to working time (Part 1 of Article 91 of the Labor Code of the Russian Federation), and not to rest time (Article 107 of the Labor Code of the Russian Federation), employees cannot use it at their discretion and leave their workplaces. Their absence from work without the permission of the employer can be regarded as absenteeism. However, a stay-at-home order may allow employees not to report to work. To avoid disputes, the order must clearly indicate whether workers are required to be present at work or not.

Arbitrage practice. The Orenburg Regional Court, in an appeal ruling dated June 27, 2013 in case No. 33-3812/2013, confirmed the legality of the dismissal under subsection. "a" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation in connection with the absence of an employee from the workplace during downtime.

5. The order for downtime was issued by an unauthorized person

The order to declare downtime must be signed by the appropriate person (the head of the organization or another authorized person). If an order is issued by an unauthorized person, the announcement of downtime may be considered illegal.

Arbitrage practice. As the Khabarovsk Regional Court emphasized in the appeal ruling dated July 20, 2012 in case No. 33-4009/2012, the director of the organization is not authorized to issue an order for downtime after the introduction of bankruptcy management. In such a situation, only the bankruptcy trustee can do this.

6. Workers were not familiar with the order establishing downtime

Employees for whom downtime has been declared must be familiar with the downtime order. In case of refusal to familiarize, an act is drawn up and signed by the commission.

7. The employment service was not notified of downtime associated with the suspension of production

The employer is obliged to notify the employment service about downtime if it is associated with a suspension of production. At the same time, as Rostrud explained in letter dated March 19, 2012 N 395-6-1, we are talking about the suspension of production as a whole, and not of individual units or equipment. This must be done within three working days after the decision is made to suspend production (declaring downtime) (paragraph 2 of Article 25 of the Law of the Russian Federation of April 19, 1991 N 1032-1 “On Employment of the Population in the Russian Federation”). Since the unified form of the message has not been approved, it can be compiled in free form.

8. An employee who was declared idle was transferred to another job without his consent

Some employers, referring to Part 3 of Art. 72.2 of the Labor Code of the Russian Federation, they practice transferring an employee who has been declared idle to another job without his consent. It should be remembered that such a transfer is allowed only if the downtime is caused by emergency circumstances listed in Part 2 of Art. 72.2 Labor Code of the Russian Federation.

Arbitrage practice. As the Moscow City Court indicated in its appeal ruling dated June 6, 2012 in case No. 11-9038, from an analysis of the norms of Art. 72.2 of the Labor Code of the Russian Federation it follows that the transfer of an employee to another position is allowed if the downtime is caused by a natural or man-made disaster, industrial accident, industrial accident, fire, flood, famine, earthquake, epidemic or epizootic, and in any exceptional cases threatening life or normal living conditions of the whole population or part of it. Since the court did not establish such circumstances, the employee’s transfer was declared illegal.

9. The time sheet for the downtime period is not completed or is completed incorrectly

According to Art. 91 of the Labor Code of the Russian Federation, working time is the time during which an employee, in accordance with the internal labor regulations and the terms of the employment contract, must perform labor duties, as well as other periods of time that are in accordance with the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation refer to working time. The employer is required to keep records of the time actually worked by each employee.

Based on orders, memos, acts or sheets of downtime, a work time sheet is filled out. You can use standardized forms N T-12 or N T-13, approved by resolution Goskomstat of Russia dated 01/05/2004 N 1, which for this purpose should be approved by order on the organization. In the appropriate columns, you must indicate the alphabetic or numeric code of downtime (due to the fault of the employer - “RP” or “31”, as well as the duration of unworked time (in hours, minutes)).

Arbitrage practice. Failure to reflect downtime or its type in the work time sheet entails the illegality of declaring downtime (appeal ruling of the Supreme Court of the Republic of Sakha (Yakutia) dated 02/03/2014 in case No. 33-321/2014).

Incorrect indication of the type of downtime (due to the fault of the employer or for reasons beyond the control of the employer) in the timesheet and the corresponding incorrect payment for downtime in the event of a dispute entails the court's additional assessment of wages to the employee for downtime (cassation ruling of the Tula Regional Court dated November 10, 2011 in case No. 33-3848).

10. Mistakes were made when paying for downtime

Downtime caused by the employer is paid 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).

According to Art. 139 of the Labor Code of the Russian Federation, for all cases of determining the amount of average wages (average earnings), a uniform procedure for its calculation is established. To calculate the average salary, all types of payments provided for by the remuneration system that are used by the relevant employer are taken into account, regardless of the sources of these payments. In any mode of operation, the average salary of an employee is calculated based on the salary actually accrued to him and the time he actually worked for the 12 calendar months preceding the period during which the employee retains his average salary. In this case, a calendar month is considered to be the period from the 1st to the 30th (31st) day of the corresponding month inclusive (in February - to the 28th (29th) day inclusive).

Arbitrage practice. The Moscow Regional Court, in its ruling dated January 31, 2012 in case No. 33-2350, drew attention to the fact that when establishing the average daily wage, the total amount of payments is not divided by the number 29.4, since it is the monthly average calendar days and is used exclusively to determine the average daily earnings for paying vacations and paying compensation for unused vacations.

If the employer incorrectly determined the type of downtime (for example, he indicated downtime for reasons beyond the control of the employer and the employee, whereas in fact the downtime was due to the fault of the employer), then the court will correct it, while additionally charging payment for downtime (appeal ruling of the Vladimir Regional Court dated October 31 .2013 in case No. 33-3566/2013). This is why it is so important to determine the type of downtime correctly.

By the way, payments in favor of employees during downtime are not compensatory in terms of the terminology of the Labor Code of the Russian Federation (Article 164) and are subject to personal income tax on the basis of clause 1 of Art. 210, art. 217 Tax Code of the Russian Federation.

11. The employee was forcibly sent on leave without pay for the period of downtime

From Art. 128 of the Labor Code of the Russian Federation it follows that leaves without pay are divided into those that the employer can provide to the employee, and those that he is obliged to provide. But in both the first and second cases, the basis for granting such leave is the employee’s initiative and his voluntary expression of will. The possibility of sending an employee on leave without pay at the initiative of the employer, although based on the employee’s application, but due to circumstances related to the activities of the employing company, is not provided for by labor legislation.

On June 27, 1996, the Ministry of Labor of the Russian Federation gave clarification No. 6 “On leaves without pay at the initiative of the employer,” in which it indicated that such leaves can only be provided at the request of employees for family reasons and other valid reasons. “Forced” leaves without pay at the initiative of the employer are not provided for by labor legislation.

12. The employee is paid for downtime if he gets sick during this period

The question of whether it is worth paying for downtime if an employee is sick until recently led to numerous disputes. Specialists from the Federal Social Insurance Fund of Russia believed that benefits should not be accrued if the employee fell ill during a period of downtime (letter dated March 22, 2010 N 02-03-13/08-2497). However, the courts took a different opinion.

Arbitrage practice. The Presidium of the Supreme Arbitration Court of the Russian Federation, in Resolution No. 17762/09 dated May 18, 2010, indicated that the legislation in force at that time did not establish the dependence of the payment of benefits on when the employee fell ill (before the start of the downtime or after).

It is interesting that the point of view of the courts did not find support among legislators. From 01/01/2011 to the Federal Law of 12/29/2006 N 255-FZ "On Mandatory social insurance in case of temporary disability due to maternity" (hereinafter - Law N 255-FZ) changes were made. According to new edition part 7 art. 7 of Law N 255-FZ, a temporary disability certificate is paid only if the employee’s illness occurred before the organization declared downtime.

Arbitrage practice. In the ruling of the Constitutional Court of the Russian Federation dated January 17, 2012 N 8-О-О “At the request of the Levoberezhny District Court of the city of Lipetsk to verify the constitutionality of clause 5 of part 1 of article 9 Federal Law“On compulsory social insurance in case of temporary disability and in connection with maternity” it is stated: clause 5, part 1, art. 9 of Law No. 255-FZ, which excludes the assignment of temporary disability benefits to the insured person during downtime that occurred during downtime, is due to the intended purpose of this type of insurance coverage and in systemic connection with Art. 157 of the Labor Code of the Russian Federation cannot be considered as violating the constitutional rights of citizens.

13. Downtime announced simultaneously with layoffs without taking into account objective reasons

In accordance with Part 2 of Art. 180 of the Labor Code of the Russian Federation, upon termination of an employment contract due to a reduction in the number or staff, the employer is obliged to notify employees in writing under personal signature at least two months before dismissal. At the same time, from the day of notification of dismissal until the day of termination of the employment contract, the essence of the labor legal relationship between the employee and the employer does not change. The employer is obliged to provide the employee with work according to the specified labor function, pay wages on time and in full, etc.

Simple in meaning art. 72.2 of the Labor Code of the Russian Federation is a temporary measure due to the occurrence of certain circumstances that do not entail a reduction in the number of employees and termination of the employment contract. As we have repeatedly stated, the employer must have objective circumstances (of an economic, technological, technical or organizational nature) to issue an order for downtime in the organization (individual divisions of the organization).

Thus, carrying out measures to reduce the number or staff of the organization’s employees and notifying them about the upcoming

Dismissal does not constitute idle time in the sense in which this term

Used in Part 3 of Art. 72.2 Labor Code of the Russian Federation. If there are objective circumstances that caused the downtime, and the employer issued a corresponding order for downtime, then employees who were warned about dismissal due to a reduction in numbers or staff may also find themselves in downtime (Clause 2, Part 1, Article 81 of the Labor Code of the Russian Federation).

If a dispute arises, the courts evaluate the circumstances that led to the downtime and find out whether it was caused by a temporary suspension of work.

Arbitrage practice. The Kemerovo Regional Court, in an appeal ruling dated January 30, 2014 in case No. 33-73-2014, confirmed the legality of the announcement of idle time during the period of notice of staff reduction, and indicated that the plaintiff was sent to idle time not because his position was subject to reduction, but due to reasons of an economic nature, about which the employer issued relevant orders.

Arbitrage practice. In turn, the Murmansk Regional Court, in its appeal ruling dated March 5, 2014 No. 33-377-2014, pointed out the illegality of declaring downtime, since the issuance of an order for downtime against the plaintiffs was not caused by a temporary suspension of work. The lack of work for the plaintiffs was permanent, without any signs of temporary suspension.

14. An order to end the downtime was not issued (if there is no end date for the downtime in the order)

If the order declaring downtime indicated a specific end date (for example, “declare downtime from 08/07/2014 to 08/18/2014”), then this order is terminated automatically. If the order declaring downtime was issued with an open date (i.e., at the time of its issuance it was impossible to determine the duration of the downtime), then the employer must issue an order to end the downtime, indicating:

— the date from which work resumes;

- position (profession), full name. employees (employees) or names of structural units (divisions) of the organization that begin work after downtime.

It is mandatory to familiarize the employees of the relevant departments with the order under a personal signature. This will help avoid controversial situations when employees do not show up for work and claim that the employer did not notify them of the end of the downtime.

Work processes are not always constantly stable and the reason for this is not always crisis events. Lack of workload can also happen because the enterprise has begun modernization of production, when it is necessary to install new equipment, for example, or other technological and technical changes. Correctly executed downtime due to the fault of the employer is beneficial, first of all, to the enterprise itself.

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Forced downtime

We will find the definition of downtime in the Labor Code of the Russian Federation in Article 72.2. Downtime is defined by the Labor Code of the Russian Federation as a temporary suspension of work for various reasons. Several reasons have been given, and they can arise either through the fault of the employee or the fault of the employer. And downtime also happens through no fault of the employee or the employer, i.e. for reasons beyond the control of the parties.

The forced downtime of the Labor Code of the Russian Federation allows it to be issued in the presence of certain circumstances. Examples of reasons why forced downtime in an organization can be issued include the following:

• equipment breakdown,
• modernization of the production line,
• reorganization of the entire enterprise,
• lack of raw materials for production,
• interruptions in the organization's power supply,
• revocation of the activity license,
• issuance of administrative acts prohibiting or suspending the work of the organization and even weather conditions.

And such circumstances can occur both through the fault of the employer and the fault of the employee. Or there will be no fault of the parties to the employment contract at all.

The question of how to register and pay for downtime due to the employer’s fault still arises more often in the field of production activities, in industry, where as a result of work, quite tangible products are created and it is their sale that brings profit to the company. But it happens that such situations require registration in ordinary, few offices. For example, in case of serious power failures and the inability of office equipment to operate.

Often, when such situations arise, employers try with all their might not to pay employees for the time when they are forced to be unloaded with work. For example, they persuade you to write a statement about, force you to go to next holidays etc. These actions are the subject of close attention of the courts when such disputes come up for consideration. All aspects are assessed - the reasons for the suspension of work, time periods, the possibility and reality of resuming work, documentation.

Downtime should not be confused with shortcomings. If an employee does not stop working and does not work normal duration working day or shift, then we are talking about shortcomings. This distinction is very important for both the employee and the employer to understand, because the amount the employee receives as payment depends on this difference. So, according to Art. 155 of the Labor Code of the Russian Federation in case of non-compliance with labor standards, non-compliance labor responsibilities It is through the fault of the employer that remuneration is made in an amount not lower than the average salary of the employee, calculated in proportion to the time actually worked.

And here a lot of legal disputes arise, where employees try to convince the court that it was the employer’s fault that there was a deficiency in order to receive the average salary in full. In this case, payment forced downtime due to the fault of the employer costs the enterprise less than stating the fact of shortcomings. This will be discussed further.

Forced downtime due to the fault of the employer under the Labor Code of the Russian Federation

Labor relations are very diverse, and situations arise when the employer is clearly and indisputably at fault for the suspension of work. But it also happens that accusations against an employer who failed to provide work for its employees are quite controversial.

Question from practice

How to pay for downtime caused by the fault of the organization?

The answer was prepared jointly with the editors

Nina Kovyazina answers,
Deputy Director of the Department of Medical Education and personnel policy in healthcare of the Russian Ministry of Health

Downtime caused by the organization is paid on the basis of a time sheet. The amount of payment for this downtime due to the fault of the organization cannot be less than 2/3 of the employee’s average earnings (Part 1 of Article 157 of the Labor Code of the Russian Federation).

If the organization uses unified forms of documents, then in the report card in form No. T-12 or No. T-13, opposite the name of the idle employee, indicate:

• The first line contains alphabetic or numeric idle codes:
• through the fault of the organization “RP” or “31”;
• for reasons beyond the control of the organization and employee, “NP” or “32”;
• through the fault of an employee “VP” or “33”;
• in the second line the number of hours and days of downtime.

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The Labor Code names the economic situation as one of the reasons for objective difficulties. The line here is quite thin. Courts, for example, often interpret the inability to work due to lack of orders as a business risk that clearly falls on the shoulders of the employer. Those. precisely the order of conduct commercial activities leads to the impossibility of work due to economic reasons.

Risks of commercial activity also include:

• bankruptcy of counterparties;
• liquidation of debtor enterprises;
• changes in exchange rates, etc.

In these cases, court decisions interpret such situations as downtime due to the fault of the employer, and not due to reasons beyond the control of the parties.

There are court cases where employees challenge downtime at the enterprise through the fault of the employer, imposed on laid-off workers. Those. the employer notifies the employee of the upcoming layoff and at the same time issues a downtime order. The courts side with the workers and justify their decisions by the fact that in this case one of the main features is missing - temporary.

In other words, the employer was unable to prove that it had intentions to re-employ the workers, laid off due to staff reduction that this situation is only temporary. Thus, downtime due to the fault of the employer cannot be unlimited or infinite. This is always a strictly defined period of time.

But according to the Appeal ruling of the Moscow City Court dated 07/02/2013 in case No. 11-20513/2013, downtime on the eve of the liquidation of the enterprise was recognized as justified. Thus, the line when employee downtime occurs due to the fault of the employer, and not for other reasons, is shaky.

This tool can also be used by the employer as a way to deal with unwanted employees - force them to write voluntary resignation letter , remove an objectionable employee, etc. The risk for the enterprise is that the employee will go to court with one of the demands to declare the order illegal and in his favor not 2/3 of the average earnings will be recovered, but the average earnings in full. And, as we see, the courts approach the examination of evidence on this topic very scrupulously.

Downtime due to the fault of the employer - how to register: step-by-step algorithm

The employer's will alone is not enough here. This is evidenced by court decisions taken in favor of workers. The organization must have documents justifying its reasons. It can be office notes, reports, acts recording facts of absence of work, accounting and other financial sources.

Documentation is further complicated by the fact that the law does not have a clear procedure for how to document downtime due to the fault of the employer. Therefore, here the employer will have to act in accordance with the customs of turnover and on the basis of conclusions drawn from the analysis of judicial practice.

Step 1. Place an order.

• The order must reflect: specific dates for the introduction of downtime and its end
• . There may not be an end date only in the case where it is difficult for the employer to determine the circumstances surrounding the temporary cessation of work; reason for downtime
• and an indication of the employer’s guilt; list of employees
• indicating their positions and structural units in respect of which this regime is introduced; link to the norm of the Labor Code of the Russian Federation
• with a description of how payment is made for forced downtime due to the fault of the employer; indication of the need for workers to be present

, in respect of which this regime has been introduced, in the workplace. It should be remembered here that if this circumstance is not specified in the order, then by default workers must be present at their workplaces. This follows from the interpretation of the Labor Code that downtime is not included in the rest period, although workers are not overloaded with work at this time. Therefore, if it is more profitable for the employer for employees not to be at work, then this possibility should be directly indicated in the order. As with any other orders regarding employees, they must familiarize themselves with the downtime order by signing it. Unified form

no order. Step 2. Notify the employment service about the introduction of the downtime mode. But this is not necessary to do in all cases, but only when the activity of the entire enterprise is suspended. The applicable rule of law in this case is.

para. 2 p. 2 art. 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1 “On employment in the Russian Federation”

A notice of termination of the enterprise's activities must be sent within three working days from the moment the decision is made. The form of the message has not been approved; therefore, this fact can be reported in free form. Step 3. Reflect the fact of downtime in

. For such cases, there is a special letter and number designation - downtime due to the fault of the employer; according to the Labor Code of the Russian Federation, it is mandatory to record it in the timesheet, since this period is included in working hours. Note, that there is judicial practice where “failure to reflect” downtime on the timesheet even entails the illegality of its introduction ().

Appeal ruling of the Supreme Court of the Republic of Sakha (Yakutia) dated 02/03/2014 in case No. 33-321/2014

Downtime due to the employer's fault: how is it paid? Art. 157 of the Labor Code of the Russian Federation answers this question

Average daily earnings x 2/3 x number of days without work

Average earnings are calculated not simply by calculating the arithmetic average, but in compliance with the norms labor law – Art. 139 Labor Code of the Russian Federation, Decree of the Government of the Russian Federation dated December 24, 2007 No. 922 “On the specifics of the procedure for calculating average wages”.

It should be noted that internal acts of the enterprise, including collective labor agreement , a different amount of downtime payment may be established, certainly higher than that established by law, since it is prohibited to worsen the employee’s position in comparison with the norms of the Labor Code of the Russian Federation.

Reference and legal systems provide quite a variety of examples of calculations, including how to pay for downtime due to the fault of the employer if the employee did not work for only a few hours.

How long can downtime be due to the employer's fault?

As we have already discussed above, an employee cannot stand idle without a deadline. The employer is sometimes aware of the end time of the downtime in advance, but sometimes information about the situation affecting the absence of work is unknown in advance. Depending on this, the order either indicates a specific period or indicates wording linked to the event. Such an event, for example, may be the fulfillment of contractual obligations by suppliers and counterparties. In this case, an additional administrative act on the end of the downtime will be required, with which employees must also be notified. In any case, regarding the timing, you need to remember that forced downtime according to the Labor Code of the Russian Federation is always a temporary suspension of work. And this time must be indicated in the documentation.

Notice of downtime due to the fault of the employer: sample

In the section on the registration procedure, we indicated that in the event that an enterprise completely temporarily suspends work, it is necessary to inform the employment service about this. Often, territorial divisions develop their own form of notification, but notification in a different manner will not constitute a violation. For example, you can report it like this:

« In connection with the modernization of production, by order of LLC "____" dated August 1, 2019 No. 12, employees of LLC "_____", with the exception of administrative personnel, were placed on idle time due to the fault of the employer from August 3, 2019 to September 20, 2019. ».

The notification is prepared on the enterprise's letterhead and signed by the sole executive body.

Downtime due to the fault of the employee: how to register

Such downtime is recorded if the employee lost his workload through his own fault, for example, due to the employee’s unlawful actions, work equipment broke down. Downtime due to the employee’s fault should not be confused with by suspension from work, the reasons for which may be:

• lack of mandatory medical examination;
• failure of the employee to undergo training and testing of knowledge on labor protection;
• requirement of regulatory or judicial authorities.

Downtime due to the fault of the employee is processed similarly to downtime due to the fault of the employer. That is, on the basis of official or memos about the fact of a breakdown, a corresponding order is issued. The order must indicate that a temporary suspension of work is being announced due to the fault of the employee, and a link to Art. 157 Labor Code of the Russian Federation– then the employee’s idle time for this reason will not be paid.

INtime sheet it is also indicated that the employee was downtime due to his own fault; a special alphanumeric code is provided for this.

Forced downtime for reasons beyond our control

Reasons for temporary suspension of work s and reduction of working hours in the absence of fault of both the employee and the employer, there may be natural phenomena, man-made disasters. Recently, there has been a practice of declaring this type of downtime in offices and production premises during periods of abnormal summer heat, when there are no air conditioning systems.

Practical situation

How to arrange a simple

The answer was prepared jointly with the editors of the magazine " »

Alena SHEVCHENKO answers,
lawyer, expert of the magazine "Personnel Business"

Interruptions in the supply of equipment and components during a crisis are not uncommon. Not to mention the drop in demand for goods, accidents, etc. Because of this, many employers are forced to suspend production. To save jobs, they declare a shutdown. However, in order to enter a simple one, you need to follow a certain order. You will learn how to arrange downtime in the organization in the article.

Downtime is a temporary suspension of work (part three of Article 72.2 of the Labor Code of the Russian Federation). The reasons for such a suspension may be different: economic, technological, technical or organizational (table below). In this case, the employer can declare downtime in relation to all or several employees...

The full answer is available after free

The registration procedure is similar here. The only difference will be in the indication of the reason - in this case, beyond the control of the parties - and in the order of payment.

Payment for downtime due to reasons beyond our control

Art. 157 Labor Code of the Russian Federation– for independent reasons - at least two-thirds of the tariff rate, salary (official salary), calculated in proportion to downtime. You can use the formula:

Salary / number of working days in a month of inactivity x 2/3 x number of working days without work

If difficulties arise with calculations, the help systems provide various examples of calculations.

Thus, payment for downtime due to the fault of the employer is made at the highest rate, therefore the evidence base must be collected most thoroughly. Attention should also be paid to recording the differences between downtime and shortcomings, because this directly affects the company’s expenses for employee benefits. Must have up-to-date knowledge of how forced downtime due to the employer’s fault is paid professional staff personnel services.

And enterprise managers should remember that any attempts to give a legal appearance to illegal actions when recording and paying for temporary forced suspensions of work are fraught with losses greater than if all the requirements of the Labor Code of the Russian Federation are met.

One of the reasons for suspending the activities of an enterprise may be downtime due to the fault of the employer. To pay for downtime and account for payment amounts, it is necessary to correctly fill out the relevant documents.

What is simple?

The legislator pays little attention to downtime, and its concept is given in the article of the Labor Code of the Russian Federation, which regulates the procedure for temporarily transferring an employee to another job. In accordance with the officially defined concept, downtime should be considered a temporary suspension of work for reasons of an economic, technological, technical or organizational nature.

The reasons for downtime caused by the employer can be very diverse:

• refusal of the counterparty to fulfill the contract;
• modernization of production;
• untimely delivery of raw materials or supplies;
• reduction in production volumes.

It is simply impossible to provide a complete list of circumstances that can cause downtime at an enterprise. But it is worth paying attention to the fact that they can become a reason for declaring downtime only if they are temporary in nature.

How to register downtime due to the fault of the employer?

The legislator did not pay attention to this issue at all. The registration process was formed by trial and error based on the general norms of labor legislation.

You should start registering downtime by drawing up a report that reflects the event or circumstance that caused the downtime.

The order to declare downtime must indicate:

• the reason for the downtime;
• the circle of employees for whom downtime is introduced;
• downtime period (start and end dates (times);
• amount of payment for the period of inactivity.

If the employer does not need the presence of employees at work sites and is not against employees not going to work, this should also be indicated in the order.

If the employer was unable to determine the end date of the downtime, the order may indicate the period of downtime as: “until the causes of the downtime are eliminated.” In this case, when those very reasons are eliminated, it will be necessary to issue a new order to end the downtime.

Sample order for downtime due to the fault of the employer.

Downtime notification

Orders on the introduction of downtime and on its end (if one was issued) must be familiarized to the employees in respect of whom downtime is introduced, against signature. If employees were not at work during the downtime period, then the end of the downtime should be notified in advance.

If the introduction of downtime affects the entire enterprise as a whole, it will have to be reported to the employment service. The notification can be drawn up in any form and sent within three working days after the issuance of the downtime order.

But the need to notify the trade union organization is not provided for by law.

Time tracking

During the period we are considering, it is necessary to make notes on the downtime period in the working time sheet. The duration of "non-work" must be indicated in hours and minutes. Special codes are used to indicate downtime:

• “RP” or “31” - if the employer is guilty;
• "NP" or "32" - if no one is to blame;
• "VP" or "33" - if the employee is guilty.

How is downtime due to the employer's fault paid?

The legislator made payment for downtime dependent on who is to blame and whether it is to blame at all. And blaming an innocent person may entail additional costs if the employee wishes to appeal the employer’s decision in court.

If the introduction of downtime is not the fault of either the employee or the employer, then it is paid in an amount that should not be less than two-thirds of the employee’s salary or tariff rate. The amount of payment for downtime caused by the employer should not be less than two-thirds of average earnings. But the period of “no work” caused by the employee’s fault is not paid at all.