In Art. 105 of the Labor Code of the Russian Federation states that when performing work of a special nature, as well as work that has a different intensity of labor during the working day (shift), the working day can be divided into parts. But at the same time total duration hours of work must not exceed daily work. The division of the working day into parts should be carried out by the employer by issuing a local regulatory act, adopted taking into account the opinion of the elected trade union body of this organization. The content of the current legislation makes it possible to single out the following legally significant circumstances, the proof of which makes it possible to recognize the division of the working day into parts as legitimate and justified.

Firstly, it is required to prove the issuance of an order to divide the working day into parts by an authorized representative of the employer in compliance with the procedure for taking into account the opinion of the trade union operating organization. The authorized representative of the employer when issuing this order is a person who has such powers in accordance with the constituent documents.

The issuance of a local regulatory legal act on the division of the working day into parts without going through the procedure for taking into account the opinion of the trade union of the organization, as well as the refusal to take into account the motives set forth in such an opinion, are the grounds for its recognition as invalid in court.

Secondly, it is required to prove the legitimacy and validity of the publication of a local regulatory act on the division of the working day into parts. The law connects the introduction of this mode of work with the special nature of work or with a change in the intensity of labor during the working day (shift). In this connection, an order can be recognized as legal, which indicates the specific features of the work that necessitate the division of the working day into parts. The special nature of the work may be due to the inability to perform labor obligations during the working day. For example, it is very difficult to remove service premises in the presence of employees. In this connection, the working day for cleaning the premises can be divided into parts. The first part of the working day can take place before the start of work in the organization, and the second - after it ends.

The legal basis for dividing the working day into parts is the change in the intensity of labor during the working day (shift). In this connection, the order to divide the working day into parts, which specifically indicates the intervals of the working day (shift) that require the most intensive work, can be recognized as legal. A typical example of the use of this basis is the work of urban passenger transport.

To recognize the order of the authorized representative of the employer as justified, the special nature of the work, requiring the division of the working day into parts, or a change in the intensity of work during the working day (shift) must be confirmed by relevant, acceptable, reliable and sufficient evidence. In this case, instructions on the work duties performed by employees, information on the flow of passengers during the working day can be used as evidence.

Thirdly, the division of the working day into parts is the establishment by order of the employer of a break or breaks during the working day (shift), the duration of which exceeds two hours. A break during the working day, not exceeding two hours, in accordance with Art. 108 of the Labor Code of the Russian Federation is recognized as a break for rest and food. Therefore, the establishment of a break during the working day lasting more than two hours is recognized as the division of the working day into parts.

When dividing the working day into parts, daily accounting of working time is also used, since Art. 105 of the Labor Code of the Russian Federation obliges the employer to ensure that the established norm of hours is observed by employees with this mode of work on a daily basis. Therefore, any excess of this norm should be recognized as work outside the normal working hours.

Thus, the following conclusions can be drawn.

Working time is the procedure for distributing the work of the enterprise during the day, calendar week, month.

The procedure for distributing working time during the day provides for the number of work shifts, the start and end time of work in each shift, the time of breaks (for eating, technological, etc.), irregular working hours, flexible schedule work, alternation of working and non-working days, division of the working day into parts, part-time work (shift).

For certain categories workers may be set irregular working hours, in which it is allowed to perform work in excess of the established length of the working day. In this case, the work performed is not considered overtime.

For certain categories of employees or teams of subdivisions of enterprises, both when hiring employees and subsequently, a flexible (sliding) work schedule can be established. At the same time, the time of the beginning and end of the working day is determined by agreement between the employee and the administration.

In order to use equipment more efficiently and increase output, or if the duration of the production process exceeds the allowable duration of daily work, it is allowed to introduce 2, 3 and 4-shift work.

Labor legislation provides for three main types of accounting for working time: daily, weekly, summarized. For each of these types, the hours worked for each working day are taken into account.

In a number of cases at work (where this is necessary due to the special nature of work, and also if the intensity of work is not the same during the working day (shift), the working day can be divided into parts so that the total length of working time does not exceed the established duration of daily work. . Such a division is made by the employer on the basis of a local regulatory act adopted taking into account the opinion of the elected trade union body of this organization.

Work in such conditions is compensated, as a rule, by an increased payment established by agreement of the parties.

Time relax

The concept and types of rest time

Rest time is understood as the time during which the employee is free from the performance of labor duties and which he can use at his own discretion.

The types of rest periods are:

Breaks during the working day (shift);

Daily (between shifts) rest;

Days off (weekly uninterrupted rest);

Non-working holidays;

Vacations.

Breaks during the working day (shifts)

Breaks during the working day are divided into:

Break for rest and meals;

Break for heating and rest;

Breaks for feeding the child (for women with children under one and a half years old);

Technological breaks (for persons working on certain types of equipment, machinery, office equipment, etc.).

Daily (between shifts) rest

Duration of daily uninterrupted rest general rule should be at least twice the length of the working day before rest. An exception to this rule is allowed for persons working on a rotational basis, car drivers, ship crew navy(at least 12 hours).

Weekly uninterrupted rest. Weekend

The duration of the weekly uninterrupted rest must be at least 42 hours.

The duration of the weekly uninterrupted rest is calculated from the end of work shift on the eve of the day off and before the start of work on the next (after the day off) day.

With a summarized accounting of working time, the duration of a weekly uninterrupted rest must be observed only for the accounting period (for the specifics of the regime of working hours and rest time for civil aviation workers, see Order of the Ministry of Transport of Russia dated January 30, 2004 N 10).

With a five-day working week employees are given two days off per week, and with a six-day working week - one day off.

Providing days off per week is mandatory for the employer. Sunday is considered a public holiday. As a general rule, with a five-day working week, the days off are Saturday and Sunday, with a six-day week - Sunday.

If a weekend and a holiday coincide, the day off is transferred to the next working day after the holiday.

For persons working on a six-day working week or other regimes, Saturdays coinciding with public holidays are working days. Holidays are not carried over.

Article 262 of the Labor Code of the Russian Federation provides for the right of one of the parents of disabled children under 18 years of age (or persons replacing them) to provide four additional paid days off per month, which can be used by one of these persons or divided by them among themselves at their discretion.

Women working in countryside, at their request, one additional day off per month is provided without pay.

The general day off is Sunday. The second day off with a five-day working week, if it is not defined by law, is established by the internal regulations. Both days off are provided, as a rule, in a row.

With a five-day work week, the second day off is usually Saturday. If, according to the production conditions, it is impossible to provide a second day off on Saturday, then in accordance with the shift schedules and the rules of the internal work schedule another day of weekly rest is established.

In organizations in which the suspension of work is impossible due to production and technical conditions or due to the need for constant continuous service to the population, as well as in other enterprises with continuous production, days off are provided on different days of the week in turn for each group of workers.

At some enterprises, significant differences in labor intensity are often recorded within one work shift. Depending on the field of activity and the profile of production, its scale and the number of employees involved, the enterprise may introduce a split labor day.

The concept of a divided working day, its legal framework

A split schedule is such an order of performance of work duties by an employee in which the shift is divided into specific time periods, between which there are breaks of a fixed duration. At the same time, the total number of hours actually worked per day should not exceed the standard norm.

In Art. 105 of the Labor Code of the Russian Federation are determined General terms actions of such a mode in the workflow. At the same time, the Labor Code of the Russian Federation does not regulate the maximum or minimum number of fractional parts of one labor shift, as well as their duration.

However, as practice shows, employers often prefer to divide the shift into two parts with a break of more than 2 hours. Also, if the direction of the enterprise involves more frequent shutdowns of the production process, then breaks are determined in greater numbers.

In order to identify whether the working day is fragmented, it is necessary to determine the nature of the break. So, a break for rest and eating for employees - a lunch break - is regulated by Art. 108 of the Labor Code of the Russian Federation. Based on the indicated article, if such a break lasts more than two hours, then the working day is considered divided. In this case, the employer in such circumstances must rely on Art. 105 of the Labor Code of the Russian Federation in the process of conducting further labor activity.

Cases in which the actual division of the working day into parts

The intensity of work during one work shift can be variable. For example, production involves a large number of orders in the morning, while in the evening there are single customers. The division of the shift in such circumstances was created for the convenience of the management apparatus and the employees themselves, who will be able to be at their workplaces only when necessary, that is, if there is a specific job. The main goal of dividing the working day is to optimize the distribution of time resources.

Representatives of this operating mode are many public utilities and transport organizations.

The conditions for the application of this mode of working time are described in Art. 105 of the Labor Code of the Russian Federation. These include:

• special direction of production;
• availability in manufacturing process intensity fluctuations during one working day;
• fixing such a provision in a local regulatory document, based on the approval of the trade union formation;
• the inability of the organization to work continuously throughout the working day. For example, if in the middle of the shift a certain amount of time is allocated for cleaning the office. In such circumstances, employees are granted a break.

The tenant does not have the right to apply such a regime at its own discretion. For the introduction of such a work schedule in an organization, good reasons are needed, as well as significant evidence that makes it impossible for another option to carry out activities. That is, the company must comply with the requirements of Art. 105 of the Labor Code of the Russian Federation.

Practice shows that in situations where disputes arise between an employer and a subordinate regarding professional relations, legal structures first of all require the provision of justifications for a divided work schedule.

Features of breaks during the division of the working day

Part-time employees are also entitled to breaks during the day for rest and meals. This is fixed in Art. 108 of the Labor Code of the Russian Federation. Such a provision is strictly obligatory for any managers, regardless of legal form organization, as well as the mode of the working day, assumed in the company.

A similar period for recuperation and lunch can be used by an employee at any time during the shift. The main requirement is the time period. So, a standard break should last more than half an hour and less than two hours. Such a pause is not taken into account when calculating wages, and is also not included in the total working time.

Based on Part 1, Part 2 of Art. 108 of the Labor Code of the Russian Federation, such a break can be attached to any break provided for by a fragmented labor regime.

Unpaid breaks between parts of the working day

Break periods for split work hours are not payable. At the same time, the number of parts into which one work shift can be divided, as well as the duration of each break between parts, is determined by the head of the company and is fixed in the local regulatory document. The ability of a manager to independently determine such a situation is fixed in Art. 8, art. 22, Art. 105 of the Labor Code of the Russian Federation.

The most common option is to divide one shift into two parts with one unpaid break lasting more than two hours.

There are also separate regulatory documents regulating private professions and the procedure for their work with a divided work schedule. In particular, separate rules provided for the following professions:

• drivers public transport(trams and trolleybuses);
• bus drivers operating on intercity routes.

It is important to remember that if the division of the working day is provided for by industry standards, then taking into account the provisions of such documents is necessary when drawing up local documents.

Existing split-time allowances

The fragmentation of one work shift causes inconvenience for subordinates who have to leave workplace to return in a few hours. Such circumstances are the reason for providing subjects with an additional payment for work under a fragmented labor regime.

The procedure for payments and the amount of additional charges is fixed by a local regulatory document or in a collective agreement. Also, in accordance with Art. 149 of the Labor Code of the Russian Federation, this question can be adjusted individually, that is, indicated in labor agreement with a specific subordinate.

It should be understood that the surcharge is compensation payments which are not included in the salary. The amount of such payments is determined based on the specific situation, the specifics of the activity and work of the employee himself. The size of the surcharge is determined as a percentage of the salary or rate of the subordinate.

Art. 149 of the Labor Code of the Russian Federation provides for the following additional payments to specific groups of employees:

• women working in the agricultural sector are entitled to an additional 30% of the established wage;
• citizens working in housing and communal organizations are also entitled to 30%;
• the management apparatus of Russian Railways - 30%.

In this case, the employer is not entitled to establish a smaller allowance in terms of volume. However, the amount of compensatory interest may increase, based on the desire of the employer.

For the issuance of a surcharge in a smaller amount, the employer may be liable. So, the employee has the right to file a corresponding complaint with the labor inspectorate. The regulation of this situation will be based in its own order on Art. 357 of the Labor Code of the Russian Federation.

If, upon inspection, the enterprise revealed relevant violations, administrative liability will be imposed on the employees of the company, based on Art. 5/27 of the Code of Administrative Offenses of the Russian Federation:

• for officials - from 1,000 to 5,000 rubles;
• for legal entities - from 30,000 to 50,000 rubles.

The procedure for issuing a divided working day

The algorithm of actions for the design of a fragmented working day is as follows:

1. Designing a local normative document, based on which the employer will be able to regulate the order of the working regime with divided working hours.
2. Providing a draft document to the trade union service. After consideration by the trade union of the project, a decision is made.
3. Approval of the document, its official publication.
4. Providing subordinates with the opportunity to familiarize themselves with the document, having received their signature as evidence of the implementation of the specified action. Also, if necessary, employees should be explained the details and details of the new regime.
5. Drawing up additional agreements with subordinates. This document is designed to fix a divided work schedule in relation to each employee in particular.

So, the employer does not have the right to single-handedly decide on the use of such a working regime. He also needs to get the consent of the union, which must make sure that the adjustments made will not negatively affect the employees, and also do not violate their rights.

Dividing the working day into parts for drivers

The division of the working day, in particular, is typical for drivers of regular transport. This is due to the need for the driver to adapt to the bus schedule, which is determined by the head of the organization of passenger transportation. Thus, the working period, including all trips of an employee, may exceed the norm fixed by law. However, receiving an overtime allowance or is not possible due to the fact that:

• total overtime must not exceed 120 hours per year. Trips between cities are carried out daily;
• Art. 101 of the Labor Code of the Russian Federation, it is determined that the use of an irregular schedule only for a short-term need (for several days) is prohibited.

In these circumstances, the shift schedule is also a difficulty, since it is problematic to determine the normalized shift. In addition, work for two working shifts in a row is prohibited by law, but, as practice shows, there is a place to be. So, when the driver makes one trip, he waits for the required amount of time (often more than 2 hours), after which he makes a new trip.

The best solution is to use a split work schedule, since the mode of operation of drivers falls under the provisions of Art. 105 of the Labor Code of the Russian Federation.

The nuances of this mode of work for drivers are:

1. The break between parts of the work shift must begin no later than the first five hours from the beginning of the working day.
2. When the working time gap reaches more than 4 hours, the employee has the right to take a break in the first part of the shift. In this case, the duration of the break cannot be less than 15 minutes.
3. The time interval between the working parts should not be more than two hours. It does not take into account the legal break for food and rest for the subject.

So, for registration of such a mode of work, the employer must obtain the written consent of the driver. In other cases, the involvement of the subject in such activities is illegal.

Thus, a divided work schedule is used to optimize the use of working time. This is typical for enterprises that have strong fluctuations in the intensity of work. To draw up such a schedule, the employer needs to obtain the consent of the employees and the trade union body.

1. Article 105 of the Labor Code of the Russian Federation establishes the grounds for introducing the division of the working day into parts: the special nature of labor in organizations (for example, organizations, serving the population); production of work, the intensity of which is not the same during the working day (shift) (for example, urban passenger transport). It is possible to establish a division of the working day into parts, or a fragmented working day, subject to the condition that the total duration of working time cannot exceed the stipulated duration of daily work.

The legislation does not determine how many parts a working day can be divided into. In practice, the working day is divided into two parts with a break of more than 2 hours. It is possible to set more breaks. These breaks are not paid. The lunch break is included in the specified breaks.

2. The division of the working day into parts is introduced by the employer, taking into account the opinion of the elected body of the primary trade union organization.

The local normative act regulating the division of the working day into parts should provide for: the circle of employees for whom a divided working day is introduced; the length of the parts into which the working day is divided, the length of the break between them; the period for which a split working day is introduced (or the period is not indicated), etc. Since the regime in which the working day is divided into parts is inconvenient for the employee, the local regulatory act may provide for the payment of additional payments to the employee.

3. For some categories of workers, the division of the working day into parts is established by law. Regulations on the features of the regime of working hours and rest time for car drivers, approved. Order of the Ministry of Transport of Russia dated August 20, 2004 N 15, provides that bus drivers working on regular city, suburban and intercity bus routes, with their consent, the working day can be divided into two parts. A break between two parts of the working day is set no later than 4 hours after the start of work. The duration of the break between two parts of the working day should be no more than 2 hours, excluding time for rest and meals, and the total duration of daily work (shift) should not exceed the duration of daily work (shift). A break between two parts of the shift is provided at the place of deployment or a place designated for the parking of buses and equipped for drivers to rest.

Order of the Ministry of Communications of Russia dated September 8, 2003 N 112 approved the List of professions and positions of communication workers for whom the employer can establish a divided working day. It includes: heads of communication departments (including mobile communication departments) of groups 5, 6 and 7; telecom operators for receiving and issuing postal items and telegrams, as well as the organization of mail delivery; sorters of postal items and printed works in delivery communication organizations; postmen delivering mail, periodicals, telegram and Money; call center telephone operators; electricians of station equipment for maintenance of GTS and STS telephone repair bureaus; telephonists of the reference service of the reference and information center of the telephone network, etc.

Regulations on the peculiarities of working hours and rest time for tram and trolleybus drivers, approved. By order of the Ministry of Transport of Russia dated October 18, 2005 N 127, it is determined that, with their consent, the working day (shift) can be divided into two parts for drivers. A break between two parts of the working day (shift) is set no later than 4 hours after the start of work. The duration of the break between parts of the working day (shift) when dividing the working day (shift) into parts in daytime should be no more than 2 hours, excluding time for rest and meals, at night - no more than 6 hours, excluding time for rest and meals, and the total length of daily work (shift) should not exceed the duration of daily work (shift). A break between two parts of the shift is provided in a place equipped for drivers to rest.

The division of the working day into parts (Orlova E.)

Article placement date: 11/16/2015

Some types of work have different intensity during the working day. In those companies where such activities are practiced, a special mode of operation may be established, providing for the division of the working day into parts. This is done to ensure that certain categories of employees of the company more rationally and efficiently use their work time(taking into account the specifics of their work) and did not sit in the workplace, as they say, idly by.

Most often, a divided working day is introduced in communal and operational services, communications, transport, civil aviation, animal husbandry and others. We will tell you what features should be taken into account when establishing such an unconventional working time regime, its documenting and remuneration of employees whose working time is divided into parts.

The procedure for establishing the mode of dividing the working day into parts

The division of the working day into parts is one of the types of working hours (part 1 of article 100, article 105 of the Labor Code of the Russian Federation). In practice, it is commonly referred to as a "fragmented", "divided", "torn" or "discontinuous" working day.

Grounds for establishing such a regime

The division of the working day into parts is possible subject to the following conditions (Article 105 of the Labor Code of the Russian Federation):
- when performing work where it is necessary due to the special nature of the work;
- when carrying out work, the intensity of which is not the same during the working day (shift);
- the procedure and conditions for dividing the working day into parts should be established in the local regulatory act of the employer, taking into account the opinion of the elected body of the primary trade union organization (if any in the company).
In the event of a labor or tax dispute, the employer will have to prove the existence of objective reasons for dividing the working day into parts.
For example, the special nature of work may be associated with the inability to perform work duties during the working day. In particular, it is extremely difficult to clean office premises in the presence of employees, and therefore the working day for cleaning premises can be divided into parts. The first part of the working day can take place before the start of work in the organization, and the second - after it ends.
Based on the provisions of Art. 105 of the Labor Code of the Russian Federation, the employer must study the need for and reasons for the introduction of this mode of working time, the possibilities and methods of recording working time in this mode.

The essence of the regime

The mode of dividing the working day into parts is the division of the working day (shift), during which the employee works at this employer, into several parts, between which breaks of a certain duration are established, while the total duration of working time should not exceed the established duration of daily work.
Article 105 of the Labor Code of the Russian Federation contains only general conditions, which, however, are very important (reasons for the introduction of such a mode of operation, the duration of working hours when it is introduced). At the same time, the Labor Code of the Russian Federation does not determine the number of parts into which a working day can be divided, as well as their duration. In practice, the working day is divided into two parts with a break of no more than two hours. It is possible to establish a larger number of breaks (depending on the specifics of the work of certain categories of workers).
To determine whether the working day is divided into parts, it is necessary to establish the nature of the break in the middle of the working day. In most cases, such a break is a break for rest and meals, or the so-called lunch break, which is regulated by Art. 108 of the Labor Code of the Russian Federation. Based on this, in practice, it is concluded that if the break in the middle of the working day is more than 2 hours, then such a working day is considered divided into parts, but in order to establish it, the conditions specified in Art. 105 of the Labor Code of the Russian Federation.
This conclusion is confirmed by a number of regulatory legal acts at the federal level, which establish the features of working time and rest time for certain categories of workers, about which we are talking Further.

Note! Work when dividing the working day into parts (Article 105 of the Labor Code of the Russian Federation) does not apply to shift work(Article 103 of the Labor Code of the Russian Federation). These are different modes of working hours, regulated by different rules.

Unpaid breaks between parts of the working day

Breaks during working hours are not included and are not paid. The number of parts into which a working day can be divided, as well as the duration of unpaid breaks between these parts, are not established by the Labor Code of the Russian Federation. Therefore, the employer independently determines the working conditions for employees whose working day is divided into parts (parts 1, 2, article 8, paragraph 7, part 1, article 22, article 105 of the Labor Code of the Russian Federation). As a rule, these are two approximately identical parts with a break of more than two hours. At the same time, for certain categories of workers, the components of the regime for dividing the working day into parts are established by industry regulations. legal acts and industry agreements. For example:
- for crew members aircraft civil aviation (items 29 - 33 of the Regulations on the peculiarities of the regime of working hours and rest periods for crew members of civil aviation aircraft of the Russian Federation, approved by Order of the Ministry of Transport of Russia dated November 21, 2005 N 139);
- for drivers of trams and trolleybuses (clause 9 of the Regulations on the peculiarities of the regime of working hours and rest time for drivers of trams and trolleybuses, approved by Order of the Ministry of Transport of Russia of October 18, 2005 N 127);
- for bus drivers working on regular city, suburban and intercity bus routes (clause 13 of the Regulations on the peculiarities of the working hours and rest time of car drivers, approved by Order of the Ministry of Transport of Russia dated 20.08.2004 N 15);
- for railway workers working in the positions of specialists servicing service and special cars (clause 38 of the Regulations on the peculiarities of the working hours and rest time, working conditions for certain categories of railway workers directly related to the movement of trains, approved by Order of the Ministry of Railways of Russia dated 05.03 .2004 N 7);
- for metro employees directly related to passenger service, as well as in the production of work, the intensity of which is not the same during the working day (shift) (clause 17 of the Regulations on the peculiarities of the working hours and rest time for metro employees, approved by Order of the Ministry of Transport of Russia dated 08.06 .2005 N 63);
- for employees educational institutions with round-the-clock stay of students (clause 3.3 of the Regulations on the peculiarities of the regime of working hours and rest time of pedagogical and other employees of educational institutions, approved by Order of the Ministry of Education and Science of Russia dated March 27, 2006 N 69);
- for communications workers (Appendix 3 to the Regulations on the peculiarities of the working hours and rest time of communications workers with a special nature of work, approved by Order of the Ministry of Communications of Russia dated 08.09.2003 N 112);
- for workers caring for animals (clause 2.305 of the Rules for labor protection in animal husbandry, approved by Order of the Ministry of Agriculture of Russia dated February 10, 2003 N 49);
- for employees of Spetsstroy organizations of Russia (clause 7.14 of the Industry Agreement for Organizations federal agency special construction for 2014 - 2016, approved by the All-Russian Trade Union of Special Construction Workers of Russia, Spetsstroy of Russia on 11/19/2013);
- for employees of organizations of ground urban electric transport (clause 3.2 of the Industry Agreement on organizations of ground urban electric transport Russian Federation for 2015 - 2017, approved by the Council of the All-Russian Industry Association of Employers "City Electric Transport", the All-Russian Trade Union of Life Support Workers on November 20, 2014).
Remember also that the features of the regime of working hours and rest time, working conditions of certain categories of workers whose work is directly related to the movement Vehicle set by the federal government executive power that performs the functions of developing public policy and legal regulation in the field of transport, taking into account the opinion of the relevant all-Russian trade union and the all-Russian association of employers. These features cannot worsen the position of workers in comparison with those established by the Labor Code of the Russian Federation (part 2 of article 329 of the Labor Code of the Russian Federation).
If the division of the working day into parts is provided for by sectoral regulatory legal acts and agreements, their provisions must be taken into account when developing a local regulatory act of the employer.
At the same time, the presence of normatively fixed lists of professions and positions of employees, for which the division of the working day into parts can be established, does not exclude the possibility of applying this mode of working time to employees whose professions and positions are not reflected in these lists. However, there must be grounds for this (the organization conducts work in which division is necessary due to the special nature of labor, or work, the intensity of which is not the same during the working day (shift)) and the procedure for introducing the mode of dividing the working day into parts must be followed.
As follows from the provisions of Art. 105 of the Labor Code of the Russian Federation, the division of the working day into parts is carried out by the employer on the basis of a local regulatory act adopted taking into account the opinion of the elected body of the primary trade union organization.
The absence of an elected trade union body is not an obstacle to the introduction of a regime for dividing the working day into parts, however, if employees do not agree with such an introduction, they can file a complaint against the actions of the employer with the commission on labor disputes(if available in the company), state labor inspection or to court.

Break for rest and meals

Employees whose working day is divided into parts must, like other employees, be provided with a break for rest and food (part 1 of article 108 of the Labor Code of the Russian Federation). This norm is mandatory for all employers, regardless of the organizational and legal form and form of ownership, as well as the working hours established in the organization, the length of the working day (shift), etc. (Definition Supreme Court Republic of Komi dated 06/25/2012 N 33-2603AP / 2012).
The time provided for rest and meals can be used in any part of the working day, the main thing is that it should be at least 30 minutes and not more than 2 hours. Such a break is not included in working hours and is not paid (part 1 of article 108 of the Labor Code of the Russian Federation). A break for rest and meals can be provided in any part of the working day, it can be attached to one of the breaks between parts of the working day (parts 1, 2 of article 108 of the Labor Code of the Russian Federation).

Surcharge for dividing the working day into parts

The division of the working day into parts creates inconvenience for workers who are forced to leave the workplace and then return to work. This is offset by the establishment of additional payments to employees who perform labor function with this working hours.
When performing work in conditions that deviate from normal, the employee is paid appropriate payments. These conditions include, among other things, the regime of dividing the working day into parts. These payments may be provided for by legislation, a collective agreement, agreements, local regulations, an employment contract (Article 149 of the Labor Code of the Russian Federation). These payments are among compensation and are not taken into account in the amount of salary (Determination of the Supreme Court of the Komi Republic of 01/13/2011 N 33-8 / 2011). For example:
- for women (regardless of their place of residence) working in rural areas, where, according to working conditions, the working day is divided into parts (with a break of more than 2 hours), wages are provided increased by 30% (clause 1.7 of the Decree of the Supreme Council of the RSFSR dated 11/01/1990 N 298 / 3-1, Letter of the State Economic Committee of the RSFSR dated 12/12/1990 N 19-117, article 423 of the Labor Code of the Russian Federation);
- for employees of a number of organizations of housing and communal services, the sphere of consumer services for the population and artisans, an additional payment was introduced for working according to the schedule with the division of the shift into parts - in the amount of at least 30% tariff rate for the time worked in the shift (clause "h" clause 2.8.2.1 of the Sectoral tariff agreement in the housing and communal services of the Russian Federation for 2014 - 2016, approved by the Ministry of Regional Development of Russia, the All-Russian Industry Association of Employers "Union of Communal Enterprises", the All-Russian Trade Union of Life Support Workers 09/09/2013, paragraph "g" paragraph 2.8.2 of the Sectoral agreement on organizations in the field of consumer services for the population and artisans for 2014 - 2016, approved by the Russian Association of Employers in the field of consumer services and artisans "Rosbytsoyuz", the All-Russian Trade Union of Life Support Workers 15.11. 2013);
- for managers structural divisions railways, structural subdivisions of railway departments and separate structural subdivisions when working with the division of the working day (shift) into parts (with a break in work of more than 2 hours), an additional payment of up to 30% of the tariff rate (salary) for the time actually worked ( clause 4.4 of the Regulations on the remuneration of employees of branches of JSC "Russian railways"approved by the Decision of the Management Board of Russian Railways JSC dated April 15, 2004, Minutes No. 8 (Letter of Russian Railways JSC dated May 5, 2004 No. FA-4049)).
If the division of the working day into parts is provided for by an industry agreement, then the local regulatory act of the employer is developed taking into account the requirements of the relevant provisions. At the same time, the employer is not entitled to establish a smaller amount of additional payment than that provided for by the sectoral regulatory legal act or the sectoral agreement to which he has joined.
In practice, not all employers set employees an additional payment for dividing the working day into parts, mistakenly believing that the amount of such an additional payment for all categories of employees is not defined by law.
If the local regulatory act of the employer does not establish an additional payment for dividing the working day into parts, the employee may file a complaint with the GIT for the protection of his rights. Having considered the complaint, the GIT may issue an order to eliminate violations of labor legislation that are mandatory for the employer (Article 356, paragraph 6, part 1, Article 357 of the Labor Code of the Russian Federation). Based on the results of the audit, the employer may be held administratively liable for violation of labor laws. Officials threatens administrative penalty in the amount of 1000 rubles. up to 5000 rubles, legal entities- from 30,000 rubles. up to 50,000 rubles (part 1 of article 5.27 of the Code of Administrative Offenses of the Russian Federation).

Taxation of additional payments for dividing the working day into parts

Surcharges for dividing the working day into parts provided for in Art. 149 of the Labor Code of the Russian Federation, are compensatory in nature.
Such surcharges are labor law and other normative legal acts containing norms labor law, collective agreement, agreements, local regulations, labor contract:
- are taken into account for the purposes of taxation of profits as labor costs, subject to the requirements of paragraph 1 of Art. 252 of the Tax Code of the Russian Federation on the basis of paragraph 3 of Art. 255 of the Tax Code of the Russian Federation, and are also recognized as part of labor costs for the purpose of calculating tax when applying the simplified taxation system with the object of taxation "income minus expenses" (clause 6 clause 1, clause 2 article 346.16, clause 1 art. 252 of the Tax Code of the Russian Federation);
- subject to income tax individuals on the basis of paragraph 1 of Art. 209, paragraph 1 of Art. 210 of the Tax Code of the Russian Federation;
- are subject to insurance premiums to the Pension Fund of the Russian Federation, the FSS of the Russian Federation, FFOMS, as well as insurance premiums against industrial accidents and occupational diseases according to part 1 of Art. 7 federal law dated 24.07.2009 N 212-FZ "On insurance premiums in Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund "and Part 1 of Article 20.1 of the Federal Law of July 24, 1998 N 125-FZ "On Compulsory social insurance from accidents at work and occupational diseases.

Documenting

The procedure for introducing the mode of dividing the working day into parts includes the following algorithm of the employer's actions.
Step 1. We develop a draft local regulatory act that establishes the procedure and conditions for dividing the working day into parts (part 1 of article 8, paragraph 7 of part 1 of article 22, article 105 of the Labor Code of the Russian Federation).
This may be a special section of the internal labor regulations or a separate local regulatory act (for example, the regulation on the company's working hours).
This document must include the following information:
- categories, professions and positions of employees for which the division of the working day is introduced;
- the number of parts of the working day;
- duration, start and end time of each part of the working day;
- the number and duration of unpaid breaks during the working day;
- duration, start and end time of the break for rest and meals;
- the date from which the division of the working day into parts is introduced;
- the period during which this regime is valid, that is, the date from which the division of the working day into parts is introduced, and the period of its validity (if a certain period is established);
- the amount of additional payment to the employee for dividing the working day into parts;
- other conditions (if necessary).
Step 2. We get a reasoned opinion of the elected body of the primary trade union organization (if any).
If a trade union committee has been created in a company, then a local normative act (hereinafter referred to as LNA) is adopted taking into account its opinion (Articles 105, 372 of the Labor Code of the Russian Federation).
Step 2.1. We send a cover letter and a draft local normative act to the trade union committee.
It is advisable to send a local normative act to the trade union committee together with a cover letter. In the content cover letter it is necessary to state the reasons for the approval of the regime for dividing the working day into parts and ask the trade union committee to draw up a reasoned opinion.
It is important to record the fact that the trade union committee received the cover letter, since this body must send the employer a reasoned opinion on the draft local regulatory act in writing no later than 5 working days from the date of receipt of the draft local regulatory act (part 2 of article 372 of the Labor Code of the Russian Federation). Receipt can be noted on a copy of the cover letter.
Step 2.2. We get a motivated opinion of the trade union committee.
The trade union committee must send a reasoned opinion to the employer (in writing) according to the draft local regulatory act no later than 5 working days from the date of its receipt. If the trade union committee did not send a reasoned opinion to the employer in writing within the prescribed period or presented an unmotivated opinion, the employer has the right to approve the local normative act in the form in which it was presented.
Step 2.3. We take into account the motivated opinion of the trade union committee.
Step 2.3.1. If a written reasoned opinion reflects consent to the approval of a local regulatory act in the form presented, then after receiving it at title page of the local normative act, a mark is made in the upper left corner: "The opinion of the trade union committee is taken into account (minutes dated "__" _______ 2015 N __)", and the local normative act itself is approved by the head of the organization.
Step 2.3.2. If the written reasoned opinion does not contain consent to the approval of the local normative act in the form presented and the employer agrees with the amendments made, the local normative act is sent for revision, taking into account the comments made, and only after that it is approved with a note that the opinion of the primary trade union organization is taken into account.
Step 2.3.3. If the written reasoned opinion does not contain consent to the approval of the local regulatory act in the form presented and the employer does not agree with the amendments made, within 3 days after receiving the opinion, the employer must:
1) notify the trade union committee of the time and place of additional consultations;
2) conduct additional consultations;
3) draw up a protocol based on the results of consultations, indicating in it:
- (or) agreements reached on a local regulatory act;
- (or) the fact of failure to reach agreement of the parties on the disagreements that have arisen.
After the protocol is drawn up, the employer approves the local normative act and makes a note that the opinion of the trade union committee is taken into account. Taking into account the opinion of the trade union committee does not mean agreeing with it a local normative act. The employer has the right to listen to the motivated opinion of the trade union committee or resolve the issue at its discretion and approve the local regulatory act in the form in which it considers appropriate.
Step 3. We approve the local normative act.
The local normative act, which provides for the division of the working day into parts, must be approved by the head of the organization or other authorized official:
- or by affixing in the upper right corner on the title page of the local regulatory act the heading "I approve", the name of the position of the person approving the document, his signature, full name. and the date of approval (clause 3.16 of GOST R 6.30-2003, approved by the Decree of the State Standard of Russia of 03.03.2003 N 65-st);
- or by issuing an order for the organization that puts this document into effect (indicating the specific date of introduction, as well as the persons responsible for monitoring the implementation of such a local regulatory act).
With any method of approval, on the title page of the local normative act, in its upper left corner it is necessary to fix: "The opinion of the trade union committee is taken into account (minutes dated "__" _______ 2015 N __)" or "There is no elected body of the primary trade union organization."
Step 4. Introducing workers whose working day is divided into parts with a local normative act.
With the local regulatory act introducing the mode of dividing the working day into parts, the employer must familiarize the employees for whom such a mode has been introduced, against signature as when hiring (before signing employment contract), and in the event that appropriate changes are made to it (paragraph 10, part 2, article 22, part 3, article 68 of the Labor Code of the Russian Federation). If the employee does not comply with such a regime of working hours, it is the employer’s failure to familiarize himself with such a local normative act that exempts the employee from liability.
Step 5. We conclude with the employee an additional agreement to the employment contract on the division of his working day into parts.
Mode of working time and rest time (if for this employee it differs from general rules operating for this employer) is one of the conditions that are mandatory for inclusion in an employment contract (paragraph 6, part 2, article 57 of the Labor Code of the Russian Federation).
In this regard, the introduction of the mode of dividing the working day into parts in accordance with the approved local regulatory act is recognized as a change mandatory conditions an employment contract, which can be made by the employer only with the consent of the employee, that is, after making appropriate changes in writing to the employment contract concluded with him (Article 72 of the Labor Code of the Russian Federation).
That is, it is impossible to unilaterally divide an employee’s working day into parts. Thus, in additional agreement the employment contract must provide for conditions on a new regime for dividing the working day into parts, rest time and additional payment for such a regime.
For newly hired employees whose working day is divided into parts, the specified conditions related to the establishment of the regime for dividing the working day into parts will be initially included in the text of the employment contract when it is concluded.