How to declare downtime at the enterprise. Sample order for downtime due to the fault of the employer: design features. What should an employee do during downtime

Work processes are not always constantly stable and the reason for this is not always crisis phenomena. The lack of workload can also happen because the enterprise has not begun the modernization of production, when it is necessary to mount new equipment, for example, or other technological and technical changes. Properly 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 idle time in the Labor Code of the Russian Federation in article 72.2. A simple Labor Code of the Russian Federation defines it as a temporary suspension of work for various reasons. Several reasons have been named, and they can arise both through the fault of the employee and through the fault of the employer. And downtime also happens through no fault of the employee and employer, i.e. for reasons beyond the control of the parties.

The forced simple Labor Code of the Russian Federation allows you to draw up under certain circumstances. As examples of the reasons for which a forced downtime in an organization can be issued, the following can be given:

• equipment breakdown,
• modernization of the production line,
• reorganization of the entire enterprise,
• lack of raw materials for production,
• interruptions in the power supply of the organization,
• revocation of a license to operate,
• 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 the fault of the parties to the employment contract will not be at all.

The question of how to issue and pay for downtime due to the fault of the employer often arises in the field production activities, in an industry where, as a result of work, quite tangible products are created and it is their implementation that brings profit to the company. But it happens that such situations require registration in the usual few offices. For example, in case of serious accidents in the power grid and the impossibility of the operation of office equipment.

Often, in the event of such situations, employers try by all means not to pay employees for the time when they are not forced to work. For example, they are persuaded to write a statement about, forced to go to regular holidays etc. These actions are the subject of close scrutiny by the courts when such disputes come to trial. All points are evaluated - the reasons for the suspension of work, time periods, the possibility and reality of the resumption of work, documentation.

A downtime should not be confused with a flaw. If an employee does not stop working, and does not work out the normal length of the working day or shift, then we are talking about a flaw. This difference is very important for understanding by both the employee and the employer, because the amount received by the employee as payment depends on this difference. So, according to Art. 155 of the Labor Code of the Russian Federation in case of non-fulfillment of labor standards, non-fulfillment of labor duties precisely through the fault of the employer, remuneration is made in an amount not lower than the average wages employee, calculated in proportion to the actual hours worked.

And here a lot of litigation arises, where employees are trying to convince the court that there is a defect due to the fault of the employer in order to receive the average wage in full. At the same time, payment for forced downtime due to the fault of the employer is cheaper for the enterprise than ascertaining 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 there are situations when it is unambiguously and indisputably the fault of the employer in the suspension of work. But it also happens that the accusations against the employer, who failed to provide work for his employees, are quite controversial.

Question from practice

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

Answer prepared in collaboration with the editors

Answered by Nina Kovyazina
Deputy Director of the Department of Medical Education and personnel policy in health care of the Ministry of Health of Russia

Downtime due to the fault of the organization is paid on the basis of the time sheet. The amount of payment for this downtime due to the fault of the organization cannot be less than 2/3 of the average salary of an employee (part 1 of article 157 of the Labor Code of the Russian Federation).

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

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

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The Labor Code calls the economic situation one of the reasons for the objective difficulties. Here the line is quite thin. Courts, for example, often interpret the impossibility of work due to the lack of orders as a risk entrepreneurial activity, which clearly falls on the shoulders of the employer. Those. exactly the order of conduct commercial activities leads to the impossibility of work due to economic reasons.

Business risks also include:

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

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

There are court cases where employees dispute downtime at the enterprise through the fault of the employer, introduced in relation to laid-off workers. Those. the employer notifies the employee of the upcoming reduction and at the same time issues a downtime order. The courts take the side of the workers and motivate their decisions by the fact that in this case missing one of the main features - temporality.

In other words, the employer was unable to prove that he had intentions to re-employ workers, layoffs that this situation is temporary. Thus, downtime due to the fault of the employer cannot be unlimited, endless. It's always strict certain period time.

But according to the Appellate ruling of the Moscow City Court dated July 2, 2013 in case No. 11-20513 / 2013, the downtime on the eve of the liquidation of the enterprise was found to be justified. Thus, the line when employee downtime occurs due to the fault of the employer, and not for other reasons, is unsteady.

This tool can be used by the employer and as a fight against objectionable employees - to 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 requirements to recognize the order as illegal and not 2/3 of the average salary will be recovered in favor of him, but average earnings in full. And, as we see, the courts approach the study of evidence on this topic very scrupulously.

Simple due to the fault of the employer - how to apply: a step-by-step algorithm

The will of the employer alone is not enough here. This is evidenced by the court decisions taken in favor of the workers. The organization must have documents substantiating its reasons. These can be memos, reports, acts fixing the facts of lack 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 draw up a 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 the conclusions drawn from the analysis judicial practice.

Step 1. Issue an order. The order must show:

• specific dates for the introduction of downtime and its end. There may be no end date only if it is difficult for the employer to determine the circumstances with which the temporary cessation of work is associated;
• downtime reason and an indication of the fault of the employer;
• names of employees with their positions and structural divisions for 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 the presence of employees for whom this regime has been introduced, at workplaces. It should be remembered here that if this circumstance is not specified in the order, then by default, employees must be present at their workplaces. This follows from the interpretation Labor Code that downtime is not included in the period of rest time, although workers at this time are not loaded with work. Therefore, if it is more profitable for the employer to have employees absent from work, then this opportunity must be expressly stated in the order.

As with any other orders regarding employees, they must familiarize themselves with the downtime order by affixing a signature. There is no unified order form.

Step 2 Notify the employment service of the introduction of downtime. But this is not necessary in all cases, but only when the entire enterprise is suspended. The applicable law in this case is par. 2 p. 2 art. 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1 “On employment in Russian Federation» .

The notice of termination of the enterprise's activity must be sent within three working days from the moment when the decision was made. The form of the message is not approved, respectively, you can report this fact in a free form.

Step 3 Reflect the fact of downtime in . For such cases, there is a special letter and number designation - simple due to the fault of the employer, according to the Labor Code of the Russian Federation, it is necessary to fix it in the report card, since this period is included in working hours.

Note, that there is judicial practice, where the “non-reflection” of downtime in the time sheet even entails the illegality of its introduction ( Appeal ruling of the Supreme Court of the Republic of Sakha (Yakutia) dated February 3, 2014 in case No. 33-321/2014).

Idle time due to the fault of the employer: how is it paid

Art. 157 of the Labor Code of the Russian Federation answers this question - at least two-thirds of the average wage of an employee. The easiest way to do this is with the formula:

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

Average earnings are calculated not just by calculating the arithmetic average, but in compliance with the norms labor law – Art. 139 of the Labor Code of the Russian Federation, Decree of the Government of the Russian Federation of December 24, 2007 No. 922 "On the peculiarities of the procedure for calculating the average wage".

It should be noted that the 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 forbidden to worsen the position of an employee 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 fault of the employer

As we have already discussed above, an employee cannot stand idle without a deadline. The employer is sometimes aware of the end of downtime in advance, and sometimes information about the situation that affects the lack of work is not known in advance. Depending on this, the order either indicates a specific period, or indicates the wording with reference to the event. Such an event, for example, may be the fulfillment of contractual obligations by suppliers and contractors. In this case, an additional administrative act will be required to end the downtime, with which employees must also be notified. In any case, in terms of 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 should be indicated in the documentation.

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

In the section on the procedure for registration, we indicated that in the case when the enterprise completely temporarily suspends work, it is necessary to report this to the employment service. Often, territorial divisions develop their own form of communication, but notification in a different order will not be a violation. For example, you can report like this:

« In connection with the modernization of production, by order of LLC "____" dated 08/01/2019 No. 12, employees of LLC "_____", with the exception of administrative staff, were sent to downtime due to the fault of the employer from August 3, 2019 to September 20, 2019. ».

The notification is made on the letterhead of the enterprise signed by the sole executive body.

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

Such downtime is recorded if the employee has lost his workload due to his own fault, for example, due to the employee’s illegal actions, work equipment has broken down. Downtime due to the fault of the employee should not be confused with e th suspension from work, the reasons for which may be:

• lack of mandatory medical examination;
• non-passing by the employee of training and testing of knowledge on labor protection;
• requirement of regulatory or judicial authorities.

Downtime due to the fault of the employee is drawn up similarly to downtime due to the fault of the employer. That is, on the basis of service or memos about the fact of a breakdown, an appropriate 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 idle time of the employee for this reason will not be paid.

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

Forced downtime for uncontrollable reasons

Reasons for the temporary suspension of work s and reduction of working hours in the absence of guilt of both the employee and the employer, there may be natural phenomena, man-made disasters. Recent times there was a practice to announce this type of downtime in offices and industrial premises during periods of abnormal summer heat, when there are no air conditioning systems.

Practical situation

How to make a simple

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

Answered by Alena SHEVCHENKO,
lawyer, expert of the magazine "Kadrovoe delo"

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

Downtime - 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). At the same time, the employer can declare downtime for all or several employees ...

The full version of the answer is available after free

The procedure here is similar. The difference will be only 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 independent reasons

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

Salary / number of working days in the month of downtime x 2/3 x number of working days without work

If there are difficulties with calculations, then various examples of calculations are given in reference systems.

Thus, payment for downtime due to the fault of the employer is made in the highest amount, therefore, the evidence base must be collected most thoroughly. Attention should also be paid to fixing the differences between downtime and underperformance, because this directly affects the costs of the enterprise for staff payments. Up-to-date knowledge of how the forced downtime is paid due to the fault of the employer must have professional staff personnel services.

And the heads of the enterprise should remember that any attempts to legalize illegal actions when fixing 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 observed.

The main norms of the Labor Code of the Russian Federation governing downtime are Art. 72.2 of the Labor Code of the Russian Federation " Temporary transfer to another job”, which defines downtime, and Art. 157 "Payment for downtime." It follows from these articles that simple- this is a temporary suspension of work for reasons of an economic, technological, technical or organizational nature. One of the types of downtime is due to the fault of the employee, and its obvious difference from downtime due to the fault of the employer or due to circumstances beyond the control of the parties is unpaid. Without a doubt, this is due to the guilt of the employee in the occurrence of downtime.

But there is already a disadvantage legal regulation- Guilt is not defined. Note that the concept of "guilt" is very often mentioned in the Labor Code of the Russian Federation, but only in Art. 233 "Conditions of occurrence liability parties to the employment contract" refers to guilty unlawful behavior expressed in the form of actions or inaction. With regard to downtime, it remains unclear how the employee's guilt should be expressed - in the form of direct intent or also negligence, in the form of only action or inaction can also be considered guilty.

Perhaps the legislator did not specify the concept of employee guilt in relation to downtime precisely for the breadth of interpretation, depending on the specific situation. And it is unlikely that the behavior of an employee guilty of idle time should be exclusively illegal.

Therefore, it is quite logical to consider that the fault of the employee can be expressed both in actions (he broke the equipment) and in inaction (did not perform the manipulations necessary in accordance with technological process resulting in equipment failure). Also, guilt can take the form of both intent (deliberately spoiled the materials) and negligence (accidentally). Of course, more often downtime due to the fault of the employee arises through his negligence. It is difficult to imagine that an employee deliberately creates a situation in which he not only loses his wages, but also runs the risk of being dismissed altogether for deliberate violation of labor duties.

Another question: for what reasons downtime may occur due to the fault of the employee. It is unlikely that economic and technological reasons are applicable here. The economic reasons for downtime (deterioration in demand, lack of funding, etc.) are more often of an external nature or depend on the employer (did not conclude contracts in a timely manner, did not renew the license, brought the enterprise to bankruptcy). Technological reasons (changes in the parameters and location of production, changes in logistics, etc.) depend on the initiative of the employer.

But for organizational reasons, downtime due to the fault of the employee may well arise: for example, the responsible employee did not prepare the team’s departure to the facility in a timely manner (did not draw up documents, did not organize travel, etc.), as a result of which he himself was left idle for some time and other employees too. Or the employee, erroneously motivating his actions with self-protection of labor rights, simply refused to do the work (for more details, see below).

There is no doubt about the possibility of downtime due to the fault of the employee due to technical reasons (equipment breakdown, car accident due to the fault of the employee, etc.).

It should also be noted that the actions (inaction) of the employee, which caused downtime due to the fault of the employee, can at the same time be the basis for imposing disciplinary action.

Difference from suspension

Sometimes the employer does not know what to do in a certain situation - whether to declare the employee idle due to his fault or to remove him from work. The employer may not pay due attention to the difference between these actions, since there are some differences between the legal instruments in question. similarity:

1. the economic consequences are the same - both for the time of guilty downtime (part 3 of article 157 of the Labor Code of the Russian Federation), and for the time of suspension from work for general rule(part 3 of article 76 of the Labor Code of the Russian Federation) the employee does not receive wages;
2. when an employee is suspended from work, most often, there is his fault in the occurrence of reasons for dismissal (but some reasons for dismissal may also arise due to the fault of the employer - part 3 of article 76 of the Labor Code of the Russian Federation, and in connection with the requirement of state bodies - paragraph 7 of part 1 article 76 of the Labor Code of the Russian Federation);
3. in both cases, the reason for downtime due to the fault of the employee and the reason for suspension from work can simultaneously be the basis for imposing a disciplinary sanction.

1. to declare downtime due to the fault of the employee is the right of the employer. Suspension from work is in most cases a duty (simple "by agreement" is also allowed - part 4 of article 73 of the Labor Code of the Russian Federation);
2. in Art. 76 of the Labor Code of the Russian Federation (and some other norms, for example, Article 212 of the Labor Code of the Russian Federation) lists specific reasons for suspension from work (state of intoxication, failure to undergo training, medical examination, instruction, etc.). The reasons for downtime due to the fault of the employee are defined in general terms (technical, organizational, see above for details);
3. the employee is obliged to inform the employer about the beginning of downtime and the reasons that caused it (part 4 of article 157 of the Labor Code of the Russian Federation). And the employee is not obliged to report the circumstances for suspension from work - the employer must identify them independently;
4. suspension from work is regulated in more detail - a separate article is devoted to it. 76, on the basis of which the employer suspends the employee only for the period of the circumstances that gave rise to the suspension. It would be logical for the legislator to indicate the same with respect to downtime, but this has not been done.

Understanding this difference will help avoid mistakes when declaring employee downtime instead of suspension from work, as well as in the reverse situation (suspension instead of employee fault downtime). It must be borne in mind that if the employee’s guilty action (forgot to renew his driver’s license, did not appear for a medical examination, etc.) is the basis for suspension from work, then it is the norms of the Labor Code of the Russian Federation on suspension from work that are subject to application. Other reasons that are not included in the list of reasons for suspension from work and meet the criteria of Part 3 of Art. 72.2 of the Labor Code of the Russian Federation may be the basis for declaring downtime due to the fault of the employee.

How to arrange

Downtime registration usually begins from a memorandum or service (explanatory) note manager about the occurrence of downtime and its causes (Example 1).

Example 1

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Then it is recommended to issue simple act(Example 2). He must fix the date and time of the downtime, its causes, conclusions about the fault of the employee. The same act can also serve as the basis for disciplinary action.

Example 2

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Then published downtime order with reference to previous documents (reports, memos, act, see Example 3). The order should indicate that downtime is declared until the causes of its occurrence are eliminated (during the repair of equipment, the purchase of new materials to replace damaged ones, etc.) or on a specific date - so that the employee clearly understands when he can continue to fulfill his labor function.

Example 3

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If in the order to declare downtime, its period was determined not by a specific date, but as “until the causes of downtime are eliminated”, then it is advisable to issue an announcement about the end of downtime separate order "On the end of downtime", referring to the elimination of the causes of downtime (Example 4).

Example 4

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When a downtime is declared due to the fault of an employee, the question arises, should the employee be present at the workplace if the downtime lasts several days or more? And what should an employee do during downtime?

In this case, since the downtime arose through the fault of the employee, it is logical to indicate in the same order that during downtime (if possible due to the employee’s competencies), he must take measures to eliminate the causes of downtime while at the workplace. It is necessary to indicate what exactly the employee should do: organize the repair of a damaged car, equipment, order new materials, reorganize a disrupted trip, etc.

An employee may object that since his time is not paid, then he does not have to do anything. But the Labor Code of the Russian Federation does not speak of the right of an employee to do nothing during a period of downtime due to his own fault. Therefore, we believe that it would be quite legitimate to involve an employee during downtime to eliminate the causes of downtime that arose through his own fault.

If the employer allows the employee not to be present at the workplace during the idle period, this must also be indicated in the order.

What the court says

Now let's look at a few examples of judicial practice: where the rules on downtime due to the fault of the employee were applied correctly, and where the employer made mistakes.

Downtime instead of suspension

In the appeal ruling of the Supreme Court of the Republic of Bashkortostan dated September 12, 2013 in case No. 33-11182 / 2013, the employee tried to cancel through the court the order to declare him downtime due to the fact that he refused to undergo mandatory internships and instructions. The court of first instance dismissed the claim, considering the order to be lawful. But the appeal satisfied the employee’s claim, revealing the error of the district court: the employee’s refusal to undergo instruction in acquiring practical skills and techniques for the safe performance of work is the basis for removing the employee from work under Art. 76 of the Labor Code of the Russian Federation, and not the announcement of downtime due to the fault of the employee. For this reason alone - due to the employer's confusion between downtime due to the fault of the employee and suspension from work - the employee won the case and also received average earnings for the period of the wrong order.

The Court of Appeal also criticized the disputed document in another aspect, stating that “the order (instruction) of the employer is a legal act and must contain a clear and understandable wording for the employee. At the same time, it is not clearly and unambiguously seen from the content of the disputed order until what time the employer declared downtime - on a specific date or until the employee eliminates the reasons for the downtime.

A similar situation is described in the decision of the Tyndinsky District Court of the Amur Region dated February 11, 2016 in case No. 2-184/16. Employee recovering from illegal dismissal, declared idle because it did not pass necessary training. The court noted that the employer did not prove the creation necessary conditions for them to receive training. And the announcement of downtime due to the fault of the employee, even if the employee had refused to study, is unlawful in this situation, since Art. 72.2 of the Labor Code of the Russian Federation.

In another judicial act - the decision of the Kolpinsky District Court of St. Petersburg dated December 5, 2016 in case No. 12-162 / 2016 - a case is described when the employer made two mistakes at the same time. Declared downtime for the employee due to the refusal to undergo a medical examination, while passing a medical examination was not mandatory. The mistake was discovered by the state labor inspectorate, and the employer was held accountable.

Self-defense of labor rights is not easy

The mentioned judicial act describes a very interesting situation. The plaintiff worked remotely as the organization's chief accountant. The employer owed her wages for more than 15 days. On this basis, she filed an application for the suspension of work in the manner of Part 2 of Art. 142 of the Labor Code of the Russian Federation. The employer, in response, issued an order to declare downtime to the employee through her fault due to the fact that she unreasonably refused to perform her job duties. But the court did not recognize this period as downtime due to the fault of the employee and recovered from the employer the average earnings of the plaintiff for the period while she was not working and was waiting for her salary to be paid.

When self-protection of labor rights becomes idle

There are situations when the self-defense of labor rights can turn into downtime (the appeal ruling of the Lipetsk regional court dated October 18, 2012 in case No. 33-2104/2012).

The plaintiff, working as a plastics welder, refused to work in self-defense of labor rights, citing unsafe working conditions and disagreement with the increase in labor standards. The employer announced unpaid downtime to the plaintiff through her fault in connection with the refusal to perform work.

The court refused the plaintiff to recognize the order on idle time as illegal, since the working conditions corresponded to those established by law, and the change in labor standards was also carried out within the framework of legal regulations. The court concluded as follows: in itself, the statement of self-defense of labor rights and the use of such self-defense in the form of non-compliance with the rules of internal work schedule, non-fulfillment of labor duties in the absence of grounds for this is not an obstacle to issuing orders to declare downtime due to the fault of the employee.

Cancellation of disciplinary action and downtime

The cancellation of the disciplinary sanction does not entail the illegality of downtime (appellate ruling of the Perm Regional Court dated July 1, 2015 in case No. 33-6645). It was found that in non-working hours the plaintiff company car stuck in the snow, when pulling out the car, it was damaged. The employer sent the car for repair, imposed a disciplinary sanction on the driver and declared him downtime due to the fault of the employee while the car was being repaired.

The employee managed to cancel the order to impose a disciplinary sanction on formal grounds - in connection with violations of the procedure by the employer. The court refused to cancel the downtime for the employee, since the reasons for the downtime and the plaintiff's fault are documented, the cancellation of the disciplinary sanction on formal grounds does not entail the unlawfulness of the downtime declared to the employee through his fault.

What conclusions can be drawn from judicial practice? Practice confirms that employers often do not see the difference between downtime due to the fault of an employee and suspension from work, they confuse the reasons for downtime and the reasons for suspension from work. This leads to sad consequences for the employer: not only the cancellation of the order, but also the collection of average earnings for the period of illegal downtime.

An interesting situation is when an employee exercises self-defense of labor rights. If these actions of the employee are justified, then downtime due to the fault of the employee is unlawful. And if the employee did not have a reason for self-defense of labor rights, the time of his idleness can be declared downtime due to the fault of the employee.

Above, we talked about the relationship between disciplinary action and downtime due to the fault of the employee. But last example practice shows that these measures of influence on the employee are connected only by the reasons for their application. Failure to comply with the procedure for imposing a disciplinary sanction and its cancellation does not "automatically" entail the illegality of downtime. The reverse statement will also be true: the cancellation of an incorrectly executed downtime will not entail the cancellation of a lawfully imposed disciplinary sanction.

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

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

Legislative regulation of downtime due to the fault of the employer

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

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

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

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

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

Idle time until reduction due to lack of confidence

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

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

Downtime on the eve of liquidation

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

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

Reduction of position as a reason for downtime

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

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

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

If the organization is going through hard times, then instead of reducing staff or leaving at your own expense, you can arrange a simple one.
How to do it? What should be taken into account? How is downtime paid? We will consider these and other questions in the article. By the way, not all answers can be found in the Labor Code.

How to make a simple

Downtime is a temporary suspension of work. Its reasons can be not only of an economic nature, but also of a technological, technical or organizational nature (part 3 of article 72.2 of the Labor Code of the Russian Federation).

Downtime for economic reasons, as a rule, does not depend on either the employer or the employee. True, the judges have a different opinion. They believe that the negative financial position of the company (lack of orders) is a financial (commercial) risk in relations between business entities, therefore, it refers to the direct fault of the employer (Appeal ruling of the Vladimir Regional Court dated October 31, 2013 No. 33-3566 / 2013). In any case, the employer must prove the existence of circumstances justifying the employer (see, paragraph 17 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2).

Technical downtime may occur:

• due to the fault of the employer (if the employer, having all the necessary details, deliberately delays repair of equipment),
• due to the fault of the employee (broke the machine),
• for reasons beyond the control of either the employee or the employer (repairs cannot be started due to late delivery of spare parts).

Depending on the type of downtime, the Labor Code of the Russian Federation provides for various amounts of downtime payment. It is not always possible to determine whether the employer is at fault or whether the downtime arose for reasons beyond the control of either party to the employment contract. Moreover, there is no exhaustive list of reasons for downtime in the Labor Code of the Russian Federation.

Quite often, accountants do not understand the difference between undertime and downtime. It's two different concepts, and they are regulated by different articles of the Labor Code. In particular, with regard to the time of failure, this is the time for which the employee does not suspend work. It occurs when the employer does not provide employees with working hours, or when it does not depend on either the employee or the employer (for example, as a result of a natural disaster, meteorological conditions due to which the employee cannot get to work, and the employer - take it to work)

What documents to draw up when idle

Correct registration is a condition that unworked time will be paid as idle time. This procedure is not legally established. In practice, the introduction of downtime is usually formalized by a written order (instruction) of the employer. There is no standardized form for such an order. It is made up randomly.

In order to maximize the observance of the labor rights of employees in this order(instruction) should indicate:

• in relation to whom a downtime is introduced (the entire organization, its branch, division, certain employee etc.);
• the reasons for the introduction of downtime (since, by virtue of clause 17 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, the obligation to prove the existence of reasons for the introduction of downtime rests with the employer);
• downtime start and end time;
• downtime pay (which cannot be less than two-thirds of the employee's average wage);
• where employees will be during downtime (at workplaces or will be exempted from the need to be present at work). It should be noted that the question of whether employees should be at the workplace during downtime due to the fault of the employer is not directly regulated by labor legislation. By virtue of Art. 107 of the Labor Code of the Russian Federation, downtime does not apply to rest time. Therefore, formally, employees should be at their workplaces during downtime due to the fault of the employer. However, it seems that the employer can issue an order (instruction) allowing employees to be absent from the workplace during this period.

In addition to the order, the following documents must be issued:

• simple acts - there is no unified form of the act, it is drawn up in an arbitrary form.
• a memo from the head of the department to the director of the company (part 4 of article 157 of the Labor Code of the Russian Federation). The note will indicate the date and time the downtime began, its duration (if known), the reasons for the downtime, etc.
• time sheet with marks of the downtime period. The company may apply unified form timesheet approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 N 1, or a form developed independently.

The following alphabetic or numeric codes are used to indicate idle time:

• "RP" or 31 - downtime due to the fault of the employer;
• "NP" or 32 - downtime for reasons beyond the control of the employer and employee;
• "VP" or 33 - downtime due to the fault of the employee.

The timesheet must indicate the length of unworked time in hours and minutes. It is also important to correctly designate the downtime period, because the amount of its payment depends on it.

The Labor Code of the Russian Federation does not contain the obligation of the employer to coordinate the order on the introduction of downtime with the trade union organization of the enterprise. But the employer will have to inform the employment service. This must be done in writing. Three working days are allotted for this after the decision on idle time is made (clause 2, article 25 of the Law of the Russian Federation of 04/19/1991 N 1032-1 "On employment in the Russian Federation"). Rostrud believes that it is necessary to notify the employment service only in case of suspension of production in the whole enterprise (Letter of 03/19/2012 N 395-6-1).

How to pay for idle hours

The Labor Code establishes certain amounts of payment for downtime. The company has the right to independently establish others, for example, increased amounts of payment. The legislation does not limit their size. The amount of payment can be prescribed in labor or collective agreements.

The procedure for paying for downtime depends on whose fault it occurred:

• Employer - at least 2/3 of the average salary of an employee is paid (part 1 of article 157 of the Labor Code of the Russian Federation),
• Employee - not paid (part 3 of article 157 of the Labor Code of the Russian Federation);
• Neither the employee nor the employer - at least 2/3 of the tariff rate or salary of the employee, calculated in proportion to the downtime (part 2 of article 157 of the Labor Code of the Russian Federation), is paid.

How to pay downtime due to the fault of the employer

If the downtime was due to the fault of the employer, it is paid in the amount of 2/3 of the average salary of the employee.

Average earnings should be determined in accordance with:

• from Art. 139 of the Labor Code;
• with the Regulation on the peculiarities of the procedure for calculating the average wage, approved by Decree of the Government of the Russian Federation of December 24, 2007 N 922 (hereinafter referred to as the Regulation on average earnings).
• If the downtime lasted several working days, the downtime payment is determined by multiplying the average daily earnings by the number of downtime days and by 2/3 (clause 9 of the Regulation on Average Earnings).

Consider the calculation of wages for downtime due to the fault of the employer.

Example 1 Engineer Petrov A.I. did not work from 08/01/2016 to 08/21/2016 (15 working days) due to downtime caused by the fault of the employer. Calculate the amount of payments due for downtime, provided that:

• downtime is paid on the basis of 2/3 of the average salary of an employee;
• The employee has a 40-hour, five-day work week. Salary - 24,500 rubles.
• the billing period from 08/01/2014 to 07/31/2015 (250 working days) the employee worked in full;

Payments for the billing period amounted to:

salary - 294,000 rubles. (24,500 rubles x 12 months);

bonuses - 10,000 rubles. in May 2015;

The salary for the billing period was 294,000 + 10,000 = 304,000 rubles.

The average daily wage of an employee is 1216 rubles. (304,000 rubles: 250 working days).

During downtime, you need to charge = 1216 x 15 slave. days x 2/3 \u003d 12,160 rubles.

By the way, payments in favor of employees for 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 paragraph 1 of Art. 210, Art. 217 of the Tax Code of the Russian Federation.

Payment for several hours of downtime

The procedure for calculating the average earnings for several hours of downtime depends on the method of accounting for the employee's working time - daily or summarized:

• if the employee has a summarized record of working time, the average earnings are determined based on the average hourly earnings (clause 13 of the Regulations on Average Earnings).
• when daily accounting of working time, it is necessary to calculate the average daily earnings (clause 9 of the Regulations on Average Earnings).

Example 2 The employee has a day-time record of working time, a 40-hour five-day work week. The salary of an employee is 30,000 rubles. How to pay for a few hours of downtime due to the fault of the employer?

Worker Trifonov A.V. On August 6, 2016, he could not start work for two hours due to the fault of the employer, who did not ensure the delivery of components on time.

Every month, the employee receives an additional payment for classiness in a fixed amount of 5,000 rubles.

In order to determine the average earnings for the downtime period, you need to calculate the average daily earnings of Trifonov A.V. (clause 9 of the Regulation on average earnings).

The employee's salary for the billing period is 420,000 rubles. [(30,000 rubles + 5,000 rubles) x 12 months].

The number of days worked for the billing period is 245.

The average daily wage of an employee is 1,714.29 rubles. (420,000 rubles: 245 working days).

Downtime hours will be converted to working days. We get 0.25 slave. days (2 hours: 8 hours/working days).

Pay downtime to Trifonov A.V. in the amount of 285.72 rubles. (2/3 x 1714.29 rubles x 0.25 working days).

How to pay downtime if no one is to blame

Example 3 Let's use the conditions of example 1, but let's assume that downtime is introduced for reasons beyond the control of the employer or employee.

In such a situation, downtime will be paid to Petrov A.I. in the amount of at least 2/3 of the salary, calculated in proportion to the downtime.

Let's say there are 21 working days in a downtime month. Since Petrov’s salary is set at 24,500 rubles, the bonus for May 2016 is 10,000 rubles, and the downtime period was 15 working days, she will receive 16,428.57 rubles during the downtime. ((24,500 rubles + 10,000 rubles): 21 x 2/3 x 15 working days).

The Labor Code does not prohibit, in the event of downtime, to transfer an employee to another job for up to one month without his consent (Article 72.2 of the Labor Code of the Russian Federation). Written consent is required only if this temporary job requires lower qualifications.

In such situations, the employee's remuneration is made according to the work performed, but not lower than the average earnings for the previous job. The provisions of Art. 157 of the Labor Code do not apply, since the employee is not “idle”, but works.

How to pay for intra-shift downtime? Based on the hourly part of the tariff rate (salary). How to determine hourly rate if the employee is paid?

The Ministry of Health of Russia recommends using the average annual number of working hours (Letter dated July 2, 2014 N 16-4 / 2059436). Their number in 2015 for employees with a 40-hour working week is 164.25 hours (1971 hours: 12 months).

Example 4 The employee is paid. The reason for intra-shift downtime does not depend on either the employer or the employee.

Worker Kotov V.V. was unable to complete the shift due to a sudden power outage. That is, on March 31, 2016, the employee was idle for 4 hours. His salary is 32,000 rubles. per month. The employee does not receive any other benefits.

The reason for downtime does not depend on the employer or the employee. The time of such downtime must be paid to Kotov V.V. based on the hourly part of the salary - 194.82 rubles. (32,000 rubles: 164.25 hours). For a downtime, an employee needs to accrue 519.52 rubles. (2/3 x 194.82 rubles x 4 hours).

How to pay a downtime for a part-time worker

Example 5 During the summer months, the organization was declared downtime. A number of employees of the organization carry out their activities as part-time workers. Should an employer pay salaries to part-time workers if they receive a salary at their main place of work?

Considering the provisions of Art. 287 of the Labor Code of the Russian Federation, the norms of Art. 157 of the Labor Code of the Russian Federation apply to part-time workers (Letter of Rostrud dated March 19, 2012 N 395-6-1). This conclusion is confirmed and judicial practice. In the Appellate Ruling of the Supreme Court of the Republic of Buryatia dated May 28, 2012 in case No. 33-1332, the court satisfied the claim for the recovery of wages for the time of forced downtime, additional payments for part-time jobs, vacation pay, compensation for moral damage, since there was a downtime in the work of the organization through the fault of the employer, and in accordance with Art. 157 of the Labor Code of the Russian Federation, downtime is payable by the employer.

All - learn how to design correctly labor Relations from admission to dismissal.

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How to draw up a sample order for downtime due to the fault of the employer, what features of registration of downtime due to the fault of the employer should be taken into account - we will talk about this in the materials of the article.

From the article you will learn:

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How to properly arrange a downtime due to the fault of the employer

Sample order for fill in in case of suspension of work. The definition of "downtime" is given in article 72.2 of the Labor Code of the Russian Federation, which lists many reasons that may arise both through the fault of the employer and the fault of the employee, as well as due to circumstances beyond the control of the parties. One reason for downtime is economic situation when work cannot be continued due to lack of orders. The courts interpret this circumstance as business risks, which also include:

• liquidation of debtor companies;
• bankruptcy of counterparties;
• currency fluctuations and so on.

In such cases, downtime is processed through the fault of the employer, and not for reasons beyond the control of the parties. Often, employees file an application for consideration of the case in court, wanting to challenge the downtime at the enterprise due to the fault of the employer, if it is introduced exclusively in relation to downsizing specialists.

Downtime due to the fault of the employer also includes reasons of a technical, technological, organizational nature. The line separating the downtime due to the fault of the employer or other reasons is quite unsteady. That's why it's so important to know how to issue a simple due to the fault of the employer. The will of the employer alone will not be enough.

Important! The company must have official documents, on the basis of which it is possible to justify all the reasons for downtime. These can be acts, reports, memos, on the basis of which the fact of lack of work is recorded, accounting or other financial sources.

There are no clear instructions and procedures in the legislation on how to issue a downtime due to the fault of the employer. Therefore, here it will be necessary to act not only in accordance with the customs of circulation, but also on the basis of the conclusions drawn from the analysis of judicial practice.

How to arrange a downtime due to the fault of the employer and indicate the timing of the suspension of work

You can not stop work without specifying deadlines. There are situations when the employer does not know the exact timing of the end of downtime. In this case, the order for downtime due to the fault of the employer (sample) includes wording with reference to a specific event. For example, this may be the fulfillment of basic contractual obligations by suppliers or contractors.

It should be borne in mind that with this option, it will be necessary to draw up an additional administrative act on the end of downtime, employees should be familiarized with the document. If the end date for the suspension of work is precisely known, this is indicated when filling out a sample order for downtime due to the fault of the employer. In any case, it must be remembered that the suspension of work is forced and temporary, this should be clearly indicated in the documentation drawn up by the employer.

When an enterprise temporarily completely suspends work, this should be reported to the employment service. The notice shall indicate the reason for the suspension of work. The document is filled out on the letterhead of the organization and signed by the sole executive body.

How to draw up an order for downtime due to the fault of the employer (sample)

A sample order for downtime due to the fault of the employer is filled out first of all, if the enterprise is forced to temporarily suspend work, the document must reflect:

• the start and end date of the forced suspension of work. There may not be an exact end date if it is difficult for the employer to determine the end dates for the circumstances on the basis of which the temporary cessation of work occurred. At the same time, it is important to indicate that the suspension will last until the fulfillment of all obligations by suppliers, counterparties, the elimination of technical malfunctions, and so on;
• the reason for the downtime with an indication of the fault of the employer;
• the composition of employees by name, indicating their positions, as well as structural units, in respect of which the downtime regime has been introduced;
• references to the norms of the Labor Code of the Russian Federation with a description of how payment for forced downtime due to the fault of the employer will be made, in what amount and in what order;
• indicate the need for the presence of those workers in respect of whom the regime has been introduced at their workplaces.

It should be borne in mind that if the downtime order due to the fault of the employer does not contain a clause on the need for the presence of employees at the workplace, then they should go out by default, since the period of forced suspension of the organization is not included in rest periods, such a definition follows from the interpretation of the Labor Code. If it is beneficial for the employer to employees absent from work, this item must be included in the order, which is drawn up in any form, a unified form of such orders not developed. All employees should be familiarized with the document against receipt.

Sample order for downtime due to the fault of the employer

Sample order for downtime for independent reasons

An order for downtime for independent reasons (sample) is issued by the employer if the temporary suspension of work does not depend on the parties that have concluded labor contract, but occurred due to the fault of third parties, for example, due to an accident at a heating plant, water supply station, power plant, and so on.

In the order for a simple (sample) indicate:

1. the start date and end date of the temporary suspension of work, if the exact date cannot be named, introducing the wording: “Until the reasons that are the basis for the suspension of work are eliminated”;
2. reason;
3. a list of employees;
4. an indication of the need to be present or absent from the workplace.

If the period of temporary stoppage of work lasts for several days or weeks, the employer has the right to release the staff from the presence at the workplace. Such a decision is issued by order in any form. Moreover, in itself, the release of employees from the need to come to work does not relieve the employer of obligations to pay downtime in accordance with the current labor legislation (taking into account Article 157 of the Labor Code of the Russian Federation).

How is payment made when registering downtime due to the fault of the employer

Payment for downtime is made depending on the reasons for its occurrence (based on Article 157 of the Labor Code of the Russian Federation). If the temporary stop occurred due to the fault of the employee, the downtime is not paid (part 3 of article 157 of the Labor Code of the Russian Federation). If the suspension of work arose through the fault of the employer, then the entire period is subject to payment in a special manner. Simple arising for reasons beyond the control of the parties, you will have to pay, but the payment procedure will be different.

Downtime due to the fault of the employer is paid taking into account the third part of Article 157. Employees are charged at least 2/3 average salary. The calculation is made according to the following formula:

• Multiply the average daily earnings by 2/3 and multiply by the number of days without work.

Average earnings are calculated not just by calculating the arithmetic average, but taking into account the norms of labor law, article 139 of the Labor Code of the Russian Federation, Decree of the Government of the Russian Federation of December 24, 2007 under No. 922 “On the features of the procedure for calculating average wages”.

Note! internal regulations companies, including collective agreement, a different amount of downtime payment may be established, but it cannot be lower than the established amount at the legislative level. It is impossible to worsen the situation of workers in comparison with the norms of the Labor Code of the Russian Federation.

It must be taken into account that correct design sample downtime order through the fault of the employer, other documents confirming the reason for the temporary suspension of work will avoid many problems associated with litigation. Based on the documents drawn up, the employer will be able to confirm the legality of the temporary suspension of work.