The nuances of the transfer to part-time work at the initiative of the employer. The introduction of a shortened working day

15.10.2019

Separate types activities, as well as circumstances in the enterprise, may require less time for employees to be at the workplace. The establishment of a reduced working day is regulated by the Labor Code, and some categories of employees have the right to require the employer to introduce such a working regime without the possibility of refusing such a requirement.

Table of contents:

The concept of part-time and reduced working time and its regulation

First of all, under the reduced working day in the modern business environment is meant the mode of work, respectively, with part-time work (NRW). At the same time, the legislation regulates two separate modes works:

Reduced working hours;
incomplete work time.

The difference between such concepts lies in the fact that the establishment of a reduced working day is prescribed in without fail for certain categories of workers and at the same time it is the norm of working time for them. In particular, the reduced duration of work is applied on a mandatory basis for minors, disabled people, as well as people working in or in training. Such restrictions are regulated by the provisions of Art. 92 of the Labor Code of the Russian Federation.

Part-time work is a concept when total time performance job duties employees is less than the statutory standards. Legal regulation such a mode of labor is provided by the provisions of Art. 93 of the Labor Code of the Russian Federation. At the same time, this mode of labor activity can be applied simultaneously with a reduced duration of work.

Example: minor working 1 hour a day for one working week, performs his duties for reduced working hours due to his belonging to a special category of workers, and for NRT, since the total time of his work during the term is less than the statutory standards.

Important fact

When working on a reduced working time, wages cannot be set below the minimum if the working time is at the level of established standards. At the same time, NRT work provides for remuneration in accordance with the hours worked, days worked, or the amount of work performed. As a result, the total earnings of an employee may be below the legal minimum wage.

Types of part-time work

Part-time work differs from flexible work or irregular work hours in that employees maintain a strict schedule. There are three separate mechanisms for introducing part-time work:

The introduction of an incomplete shift while maintaining the size of the working week;
Introduction of a shorter working week while maintaining the duration of the shift;
Establishment of a part-time work week while reducing the duration of the shift.

In this case, a reduction in the duration of a working shift can be introduced both for all shifts and for individual working days in a week.

The procedure for establishing a shortened working day

The NRT regime is established by agreement between the employee and the employer and can be included in the terms of an employment contract, or regulated by an already existing contract. Moreover, if employment provides for NRV, the employer, in the absence of the employee's consent to work in such a regime, may simply not conclude an employment contract. With already working employees, setting a reduced working day is permissible only if the employee agrees to such changes in the working hours.

At the same time, there are a number of situations in which the initiative to install such work schedule may be one-sided.

Thus, some categories of employees who may need more free time, may require the employer to set them a part-time working week or a shorter working day. These persons include:

Guardians, guardians and parents of a child under the age of 14, or a disabled child under the age of 18;
Persons who are forced to care for a sick relative.

Also, the employer is obliged to satisfy the requirements of employees for their entry to work in the NRT mode, if they are in. At the same time, such employees retain state social insurance benefits.

The employer himself can set the NRT regime for the entire staff or individual employees if a threat looms over the organization. In such a situation, he is obliged to notify employees of changes in the work schedule no earlier than two months before changing such a schedule. If employees refuse to work under the new conditions, the employer has the right to dismiss them due to a reduction in staff, with the payment of all due benefits and within the time limits specified by law. In this case, the employer must notify the trade union body without fail.

Important fact

In addition to the trade union, the employer must also notify the employment center of all cases of establishing an NRV for employees. The absence of such notification may lead to administrative liability and the payment of a fine by officials, as well as directly by the legal entity-entrepreneur.

Separate nuances of working on a reduced schedule

When an employee works in NRT mode, any work that the employer requires or asks to perform in excess of the established schedule is considered overtime and is subject to additional payment, regardless of whether the total weekly or monthly total amount of work is included in the statutory standards.

Labor legislation of the Russian Federation guarantees state assistance systemic organization labor rationing, namely the authorized government bodies establish labor standards, which are a guaranteed minimum, from which employers can only deviate in the direction of improving the situation of employees (Article 159 of the Labor Code of the Russian Federation).
However, the deterioration of the position of workers is not always illegal and is carried out with the aim of oppressing their rights. For example, during periods of economic downturns, organizations try to cut their costs. One of the items of expenditure is the remuneration of employees. According to this article, employers optimize costs different ways, for example, they carry out mass layoffs or, in order not to resort to such drastic measures, they change the mode of operation, i.e. introduce part-time work.

It should be noted that, and accordingly, a decrease in earnings is not the most popular measure in relation to employees. Moreover, employees can start a lawsuit, and the obligation to prove the legitimacy of their actions rests with the employer. Hence, it is very important not to make mistakes that will subsequently become the cause of litigation.

In order to minimize the reasons for employees to go to court and correctly reduce working hours in the organization, the employer should adhere to the following procedure:

1. Try to carry out the procedure for reducing working hours by agreement with employees. If an agreement with employees is reached, an additional agreement is signed to the employment contract, which indicates the new working hours and the new wage, with the obligatory indication of the date from which the innovations begin to apply.
2. If it was not possible to agree with the employees, and such an outcome is more realistic, it is necessary:
- prepare justifications for reducing working hours, tk. in court, you will have to prove that there were objective reasons for reducing working hours;
- the employer must notify employees in writing of upcoming changes in working hours, as well as their reasons, no later than two months before the start of the new working conditions;
- the employer issues an order on the optimization measures taken, as well as on the approval of a new staffing table. In the text of the order, it is imperative to indicate for which period the reduced working time is introduced. It should be noted that labor legislation does not contain requirements for a maximum limit for reducing working hours, therefore, the employer can independently set such a limit;
– if, after carrying out the above procedures, the employee does not agree with the new requirements, the employer in writing must offer him another available job as a vacant position or a job corresponding to it. If the employee does not agree with the proposed options, then the dismissal procedure is carried out not according to paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation (general rule), but in connection with the downsizing.

In practice, it is not entirely clear how to implement this procedure, because. the employer is obliged to notify the employee of dismissal due to a reduction in staff two months in advance, but it is not indicated anywhere whether the two-month period for warning the employee about the introduction of a new working hours regime can be counted in the term for notice of dismissal. In this case, there is a gap in the legislation. The way out of this situation can be an indication in the notice of the introduction of the reduced working time regime of information that if the employee before specific date does not agree to the new conditions, the employer initiates the procedure for his dismissal after two months from the date of receipt this notice. In this case, the provisions on the timing of notification, enshrined in Part 2 of Art. 180 of the Labor Code of the Russian Federation.
When transferring to part-time work, it is important to prove that these actions will help avoid mass layoffs of workers (paragraph 21 of the Resolution of the Plenum Supreme Court RF of March 17, 2004 N 2. Also, if employees have doubts about the correctness of the measures chosen by the employer, they have the right to apply for the protection of their interests to the prosecutor's office
It should be noted that the heads of organizations and other officials for violation labor law bear administrative responsibility.

The dilemma of the modern employer looks like this: reduce employees or their working hours? An experienced boss often chooses the latter. According to statistics, today every fifth officially employed citizen works on a reduced working week.

Any employment relationship by law must be formalized legally. AT Russian Federation such norms are determined by the Labor Code. It also enshrined the concept of a standard work week, the duration of which is 40 hours.

Regulation under the Labor Code of the Russian Federation

According to his 15th chapter, a shortened week is called one in which net working time is less than 40 hours for permanent and seasonal employees. At the same time, such a schedule must be legally issued by the employer.

Please note that exceeding this number of working hours is unacceptable according to the Labor Code.

The only exception is work on a shift system, where the duration of work and the schedule of exits are fixed in the employment contract.

Reduction of working time is not always a consequence of a crisis in the company. According to the Labor Code of the Russian Federation (Article 92), it is mandatory to install it in such cases:

An employee hired under an employment contract has not yet reached the age of 16. In this case, the maximum allowed number of working hours is 24.
For persons aged 16 to 18, the permissible number of working hours is 35.
For employees who have I and II disability groups, it is allowed to set up to 35 hours a week.
If working conditions have received 3 or 4 degrees of danger, permitted maximum amount hours - 35.
If the employee is a student in a working specialty - no more than half of the allowable time.

In addition to these regulations, a shortened week may be established at the initiative of the employer for any other category of workers in accordance with the Federal Law of 2006.

The schedule for workers is once a month, quarter or year. The employer undertakes to clearly keep records of the working time of the subordinate, to draw up reports for the past quarter. According to the Labor Code of the Russian Federation, it is this indicator that is the basis for calculating the amount of wages, vacation pay, sick leave, severance pay, and the like.

Does the employer have the right to impose such a procedure?

Reducing working hours is a normal practice in Russia. According to article 92, the working week is reduced for people with disabilities, according to age, for harmful conditions labor, etc. In addition, the federal law from 2006 allows the employer to reduce time on their own initiative. It was he who initiated legal law reduce the production of employees, transferring them to a less stressful mode of work.

The duration of the working day, shift or week is initially fixed in the employment contract, which is concluded between the employees and the head of the company. It is possible to change the terms of the agreement under the circumstances enshrined in Article 74 of the Labor Code of the Russian Federation. All of them are directly related production process:

change technological process production, technology;
reorganization of production;
other changes.

The reduced working time in this case is an alternative to the reduction of personnel after the reorganization of the production process, as a result of which such a number work force is no longer needed to complete the tasks. If an employee refuses to transfer to new mode work, the employment contract with him can be terminated with subsequent material compensation.

The maximum allowable time reduction period is 6 months, the employer is also obliged to coordinate any large-scale personnel changes of this type with the trade union organization.

To whom is it required by law?

At the request of the employee, the manager can set him such a framework for work. According to article 93 of the Labor Code, the employer is obliged to arrange a part-time / shortened week:

for pregnant women;
if the employee has a child under the age of 14, one of the parents is allowed to apply;
one parent of a child with a disability under the age of 18;
if a subordinate takes care of a sick relative on a medical report;
if an employee has taken parental leave while retaining the right to receive state benefits, the rule applies to both parents or guardians in accordance with Article 256 of the Labor Code.

The employer can also make a reduction proposal, using the same provisions. Labor Code.

In addition, the management of the organization is obliged to change the cooperation agreement according to the age criterion: if the person carrying out labor activity is under 18 years of age or is receiving a retirement benefit.

Registration procedure

The shortened week involves the scrupulous preparatory work of the employer, consisting of several stages:

Necessary issue an order about upcoming changes in the mode of operation with legal and systemic justification. It is necessary to mark all the structural divisions that will be affected by the changes, to highlight the new mode of operation. There is no national standard form of the document.
Necessary notify employees. You can assign responsibility for notifying the team about upcoming changes. The official notice must take place at least two months before the planned changes in writing. Each employee must familiarize himself with the document against signature, this is the guarantee of the employer that in judicial order his decision to transfer to a reduced week will not be reversed. If a person refuses to sign a notice, it is enough to draw up in the presence of 2 more people
Necessary inform the job board no later than three working days after the introduction of changes in the work schedule. This is required by article 25 state law from 1991. In case of violation of this paragraph, a fine may be imposed on the organization.

Some of the nuances of the duration of working time and rest are analyzed in the following video:

The nuances of wages

A reduction in the duration of labor means a reduction in wages under any system of payment. Even if you received a fixed salary, its size should decrease in proportion to the new output.

With such a transition, employees are paid based on the hours worked or the amount of work performed, depending on the type of contract with the organization.

All other payments: sick leave, business trips, vacation pay, etc. remain the same amount specified in the contract. For the calculation unit, a fixed average daily wage is taken as for a normal working regime.

If the reduction in working hours did not occur at the initiative of the employer, but according to the law (Article 92 of the Labor Code), then the amount of wages does not change, despite the decrease in hours of activity.

Equal to forty hours. However, according to labor standards, some workers are entitled to reduced or part-time work. Despite the apparent similarity of the name, these concepts are not identical: they are used for different reasons and entail different consequences.

Part-time employment - what is it?

By agreement with the employer, certain categories of employees may work part-time. This is possible by reducing the number of hours worked per week (for example, from forty to thirty) or by reducing the number of days worked per week while maintaining their standard duration (for example, working eight hours from Monday to Thursday).

Payment under this schedule will be made either for hours worked or for the amount of work performed. It is worth emphasizing that this type of employment does not affect vacation or calculation, that is, vacation, seniority, sick leave, and other payments will be considered in the same way as with a full working day (week).

Who is eligible for part-time work?

You can apply for a transfer to a part-time schedule:

pregnant women;
raising a child under the age of fourteen;
employees raising a disabled child up to the age of majority;
employees caring for a sick family member.

The reduction of the week (day) is set by them upon their personal application, while the employer does not have the right to refuse, regardless of the nature of the work.

Part-time employment is also possible for employees raising children under three years of age, and with the preservation of the right to benefits.

Part-time work at the initiative of the employee can be set to certain period(for example, until the child reaches a certain age) or indefinitely.

As in the first case, payment will be made based on the hours (shifts) actually worked, while retaining the right to full leave and adding hours worked to the length of service.

Shortening the working day

Unlike part-time, a shortened day is set without fail, regardless of the desire of the employee or employer, to the following categories:

teachers and those working in hazardous and/or hazardous conditions- 36 hours;
disabled people of the first and second groups - 35 hours:
employees under the age of sixteen - 24 hours.

The working day is reduced by an hour for absolutely everyone working on the holiday, including if the holiday fell on a weekend and was postponed. In addition, a reduced day can be set for other categories of employees, for example, those working with materials infected with the immunodeficiency virus, doctors, and also in certain cases, for example, in summer months.

The payment for reduced working time is calculated as for full time worked. In other words, a reduced number of hours for these categories of employees is the norm, and only their shortfall will lead to the need to recalculate salaries.

Thus, the concepts of reduced and incomplete time are different from each other. The first is a variant of the norm, the second is the possibility of reducing it without saving earnings for unworked hours.

During the crisis, the introduction of part-time work in companies became very popular. AvtoVAZ, Evraz, KamAZ and a number of other enterprises have already taken this path. However, such a regime is not an unconditional right of the employer, and when implementing it, one should take into account the norms of legislation that establish both the rights of employees in such cases and the requirements for such a procedure.

The introduction of a part-time working day or week is permitted by Article 74 of the Labor Code. In accordance with it, the employer may not lay off people, but introduce a part-time regime for up to six months due to changes in organizational or technological working conditions (for example, changes in equipment and production technology) to prevent mass layoffs. "Temporary transfer to part-time mode, at the end of which employees are either reduced or returned to normal mode, can only be introduced in relation to the number of employees that meets the criteria for mass layoffs," says Alexei Ivanov, head of the HR consulting department at ACG Intercom -Audit".

To introduce a part-time work regime, the employer will have to prove a change in organizational or technological working conditions. The crisis itself does not apply to such circumstances. But if, for example, a structural reorganization of production occurs in connection with it, then it is possible to revise the mode of operation. Then you need to check whether the situation of workers will worsen compared to the established one. collective agreement and agreements, take into account the opinion of the trade union and issue an order on the introduction of part-time work for up to 6 months.

Employer at sufficient grounds shall have the right, on its own initiative, to establish a part-time working week or a part-time day both for all employees and for some of them. At the same time, if part of the employees is transferred to a shorter day, then such a decision must be reasoned in notifications sent in advance to employees. Employees should be aware of upcoming changes in working conditions at least two months before the date of the proposed changes. This decision must also be made by the employer, taking into account the opinion of the elected body of the primary trade union organization. In addition, from January 1, 2009, when a part-time work regime is introduced, the employer is obliged to inform the employment authorities about this within three days after the decision to carry out the relevant measures has been taken.

The introduction of part-time work is possible both with the consent of the employee, and without it. In the first case, no problems arise, the parties must sign an additional agreement to the employment contract establishing the changed working hours. In the second case, the employee is fired through a reduction if he did not agree to work in another job available to the employer.

Agreement without amendments

Since the working time regime is established at the enterprise by a local act (for example, the Internal Labor Regulations), in order to change it, it is necessary to adopt a new version of the document, taking into account the opinion of the elected body of the primary trade union organization (Article 190 of the Labor Code). "The working time regime is reflected in the employment contract only when it differs from the general rules adopted by the employer for this employee. When the entire organization switches to part-time work, there is no need to make changes to it," says Ivan Mikhailov, an expert at the Legal Consulting Service GARANT .

When the entire enterprise is transferred to part-time work, then make changes to employment contracts with employees is necessary only if the provisions of the contract themselves duplicate the conditions of the Internal Labor Regulations on the establishment of a working time regime. If the contract contains only a reference to a local act, the contract does not need to be rewritten. "When the mode of part-time work is transferred separate division company (department, division), then such changes can be fixed either by adopting a local act in relation to the relevant division (for example, the Regulation on establishing the working hours of accounting employees), or by amending employment contracts with employees," says the leading legal adviser of FBK- Right" Andrey Shkadov.

Mode not for everyone

Obviously, a change in organizational or technological working conditions may not affect all structural divisions of an enterprise, especially if this enterprise is a diversified holding. "There are no obstacles to the introduction of a part-time regime only in relation to some structural divisions of the organization. At the same time, the employer must check with industry or territorial agreements on the criteria for mass layoffs," recalls Ivan Mikhailov.

If workers structural unit is not massive, short-term introduction of part-time work is impossible. In the absence of sectoral or territorial agreements that apply to this employer, the criteria for mass layoffs can be found in the Regulations on the organization of work to promote employment in conditions of mass layoffs (approved by Decree of the Government of the Russian Federation of February 5, 1993 N 99). But the introduction of part-time work only for some employees of different departments can be regarded as their discrimination.

The establishment of a part-time regime on an individual basis (in relation to individual employees) is allowed only by agreement of the parties (Article 93 of the Labor Code). "Based on our practice, we can say that in different situations relations between workers and employers are different. If employees understand that the employer is ready to continue their employment relationship with them, but on new conditions that suit them, they can meet him halfway, - Andrey Shkadov believes. “If there is a confrontation between employees and the employer and the parties cannot find a compromise, then it is impossible to unilaterally establish a part-time regime for several specific employees.”

Holiday pay stays the same

When working on a part-time working week, the employee is paid in proportion to the time worked by him or depending on the amount of work performed by him. Taking into account the literal interpretation of this norm, the reduction in wages should be proportional to the reduction in working hours. That is, if earlier a worker worked 40 hours a week and received, for example, 40 thousand rubles, then if the working time is reduced to 36 hours a week, he will receive 36 thousand rubles. "If the worker has a piecework system of remuneration, then he, as before, will receive wages depending on the amount of work performed, - Ivan Mikhailov points out. “It is clear that in less time, the employee will be able to complete a smaller amount of work.”

Article 93 of the Labor Code establishes the general rule that part-time work does not entail any restrictions for employees on the duration of the annual basic paid leave, calculation seniority and other labor rights. This means that it does not entail any changes for employees in relation to the mechanism for calculating vacation and sick pay. In both cases, the average earnings will be used.

Holidays for part-time employees are granted according to general rules. Their duration does not change. When determining the average earnings, the total amount of payments during the billing period is divided by the time actually worked (Article 139 of the Labor Code). Since both of these values will decrease, the amount of vacation pay will not change significantly.

When calculating benefits for temporary disability, calendar days, and not working days of the billing period, are taken into account (clause 15 of the Regulations on the peculiarities of the procedure for calculating benefits for temporary disability, for pregnancy and childbirth for citizens subject to compulsory social insurance). Therefore, the amount of sick leave will decrease. But this applies only to those who, before and after the introduction of part-time work, received less than 18,720 rubles. (maximum allowance in 2009). Employees who receive more will not notice changes in sick pay.

The part-time work regime is canceled after the expiration of the period for which it was introduced. There is no need to issue a special order for this. The cancellation of part-time work ahead of schedule is formalized by the order of the employer, which is adopted taking into account the opinion of the trade union.