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RULES
ABOUT REGULAR AND ADDITIONAL HOLIDAYS
(Published on the basis of the Decree of the Council of People's Commissars of the USSR of February 2, 1930 - protocol N 5/331, p. 28)
(as amended by the Decrees of the NCT of the USSR dated 13.08.1930 N 267, dated 12/14/1930 N 365,
dated 19.01.1931 N 21, dated 31.01.1931 N 32, Resolutions of the All-Union Central Council of Trade Unions dated 02.02.1936 (Minutes N 164), Resolutions of the Council of Ministers of the USSR dated 06.12.1956 N 1586,
Decrees of the State Committee for Labor of the USSR, the Presidium of the All-Union Central Council of Trade Unions of December 29, 1962 N 377/30, Order of the Ministry of Health and Social Development of the Russian Federation of March 3, 2005 N 190)
I. Right to leave
1. Every employee who has worked with this employer for at least 5 1/2 months is entitled to receive regular leave.
The next vacation is granted once during the year of work of the employee with this employer, counting from the date of entry to work, that is, once in the working year.
The right to the next regular leave on account of the new working year arises for the employee after 5 1/2 months from the end of the previous working year.
Employees who joined this employer in 1929 or earlier are granted leave in compliance with Art. 87.
If an employee is transferred at the suggestion of a labor authority or a commission attached to it, or at the suggestion of a party, Komsomol or professional organization from one enterprise or institution to another, without interruption in work, then the length of service giving the right to leave shall include the time worked at previous employer - provided that the employee, at his own request, did not receive compensation for unused vacation during this time.
(Part five was introduced by the Decree of the NCT of the USSR of 31.01.1931 N 32)
Example. The employee entered the plant on February 3, 1930. On July 18, 1930, he receives the right to the next vacation on account of the year of his work, i.e. until February 3, 1931. He will receive the right to the next vacation on account of the second year of work until February 3, 1932 on July 18, 1931, etc.
2. There may be cases when an employee leaves before the end of the working year for which he has already received leave. In these cases, when calculating, the employer has the right to deduct from wages for unworked vacation days.
Withholding is not allowed if the employee is dismissed due to: a) liquidation of an enterprise or institution or its individual parts, reduction of staff or work, as well as reorganization or temporary suspension of work; b) admission to active military service; c) business trips in accordance with the established procedure to a higher education institution, a technical school, a workers' faculty, a preparatory department at a higher educational institution or training courses at a higher education institution or a workers' faculty; d) transfer to another job at the suggestion of a labor body or a commission attached to it, as well as a party, Komsomol or professional organization; e) found out unfitness for work.
The paragraph is not valid on the territory of the Russian Federation. - Order of the Ministry of Health and Social Development of the Russian Federation of 03.03.2005 N 190.
This entire article applies regardless of whether the leave is used after 5 1/2 months of work or before this period - in advance (Article 12).
Example. The worker entered on January 15, 1931. From July 15, he received full leave, and on August 15, 1931, he resigned of his own free will. The employer can withhold wages from him for 5 days, since the employee received 12 days of vacation for 12 months of work and did not complete 5 months of them.
3. If the employee left before the end of the working year for which he had already received leave or full compensation, then the new employer has a 5 1/2-month period of work, giving the right to leave, is calculated as follows:
a) if, upon dismissal, a deduction was made for all unworked vacation days, then a 5 1/2-month period is considered from the date of receipt by a new employer;
b) if, upon dismissal, the employer, having the right to deduction, actually did not make it at all or partially, then the 5 1/2-month period begins when the employee has worked for the new employer for one month for each unworked vacation day for which wages remained unreserved (and with an 18- or 24-day vacation from the previous employer - one month for every one and a half or two days);
c) if at the time of dismissal the employer did not have the right to deduction, then the 5 1/2-month period begins after the expiration of the working year for which the leave or full compensation was received from the previous employer; in this case, the one-year period also includes the time of a break in work after dismissal, as well as the time spent at work that does not give the right to leave (temporary, seasonal, etc.).
Example 1 (to item "b"). The employer, dismissing the employee on August 15, 1931, had the right to withhold wages from him for 5 unworked days of vacation, but in fact withheld it only for 2 days (since the employee fell ill the rest of August). On September 1, 1931, the worker went to a new employer. 5 1/2-month period for a new vacation will begin for him only on December 1, 1931 and will expire on May 15, 1932.
Example 2 (to item "c"). On October 1, 1931, the employer dismissed an employee who had served with him since March 1, 1931 and had already used his vacation to reduce staff. On October 15, 1931, the worker went to a new employer. 5 1/2-month period for a new vacation will begin for him only on March 1, 1932 and will expire on August 15, 1932.
4. In the 5 1/2-month period of work, giving the right to the next vacation, the following are counted:
a) actual hours worked;
b) the time when the employee did not actually work, but the employer was obliged, by law or a collective agreement, to retain his position and earnings in whole or in part (including the time paid by the employer for involuntary absenteeism in case of improper dismissal and subsequent reinstatement at work);
c) the time when the employee, while retaining his position, actually did not work, but received benefits from the insurance fund (illness, injury, pregnancy, childbirth, quarantine, caring for a sick family member).
The rest of the time during which the worker did not actually work is not counted to the worker.
Example. The worker entered the workshop on March 5. From April 1 to April 15, he was ill and received an allowance from the insurance fund during these days; on the days of May 1 - 5, he was called for a short-term collection in the territorial part; from June 1 to June 10, he did not go to work for reasons recognized by the employer as valid, but without payment for the missed time. The right to leave for such an employee arises after 5 1/2 months and another 10 days, i.e. August 30th.
5. Not applicable. - Decree of the State Committee for Labor of the USSR, the Presidium of the All-Union Central Council of Trade Unions of December 29, 1962 N 377/30.
6. The receipt of leave or compensation for it must be noted by the employer in the pay book and work list - in accordance with the established forms of these documents. The same mark must be entered in the certificate issued to the employee upon dismissal.
In all these cases, the period for which the leave or compensation was granted must be indicated (for example, "leave was used for the time before June 1, 1931"). If, upon dismissal of an employee, the employer has the right to withhold wages for unworked vacation days (Article 2), then a note is added in the employee’s documents: “the deduction for unworked vacation days was made in full” or “the wages for so many days of vacation remained undeducted” .
If the documents submitted by the employee do not indicate the use of leave from the previous job, the employer may require a relevant certificate from the employee or request it himself from the previous place of work.
II. Vacation duration
7. Regular leave for adult employees is provided in all cases for 12 working days, with the addition of days off falling on vacation time.
In the same amount, full additional leave is granted to employees employed in especially harmful and dangerous conditions, according to the lists of professions established by the CNT or the collective agreement, if these lists do not provide for leave of a different duration.
8. Employees with irregular working hours may be granted additional leave as compensation for workload and work outside of normal working hours.
The period of this leave in state institutions and enterprises and mixed joint-stock companies with a predominant participation of state capital cannot exceed 12 working days.
9. Minor employees who are under 18 years of age by the day the right to leave arises, as well as all students of factory and mining apprenticeship schools and schools of mass professions - the next vacation is granted in the amount of one calendar month (for example, from June 5 to July 5), but not less than 24 business days.
If these minors or students are allowed to work in the established order in especially harmful and dangerous professions listed in the lists of the CNT, then the next vacation is granted to them in total in the amount of one and a half calendar months, but not less than 36 working days.
III. Time and procedure for using vacation
10. Vacations are granted to employees at any time throughout the year in the order of priority established by the RSC, and in the absence of the RSC - by agreement of the employer with the relevant trade union body.
The order of granting holidays for each year is established no later than January 1 of this year (for 1931 - no later than January 25, 1931).
Vacation can be granted both sequentially to one employee after another, and simultaneously to all or some groups of employees (for example, if the suspension of the enterprise for repairs is inevitable).
In the event of an unexpected suspension of work in an enterprise or institution or in its individual parts (due to an accident, natural disaster, etc.), by decision of the RSC, vacations can be granted to all groups or some groups of employees at the same time, deviating from the previously established queue.
11. Holidays should not be confined exclusively to the 1st and 15th of each month, but should be distributed, if possible, evenly throughout the month.
12. When establishing a queue, leave may be provided for this or that employee before he has the right to leave (in advance).
Part two is excluded. - Decree of the NCT of the USSR of December 14, 1930 N 365.
Example excluded. - Decree of the NCT of the USSR of December 14, 1930 N 365.
13. Holidays for underage workers are granted (in the order of priority established by the RSC) according to the general rule in the summer. This does not deprive minors of the right to use leave at other times of the year.
14. There may be cases when an employee has the right to regular and additional leave at different times. In such cases, both holidays are granted to him at the same time in full within the time period determined by the RSC when establishing the general order of holidays. At the same time, the period of work for a new vacation on account of the next working year is calculated separately for the next and additional holidays.
Example. An employee who entered the plant on March 10, 1930, is transferred to a hazardous workshop from May 10. The right to the next vacation comes on August 25, and for an additional one - only on October 25. In order of priority, he is granted both holidays from October 1. The following year, he again has the right to new holidays; for the first vacation - August 25, and for the second - October 25.
15. Leave for a combined position is granted simultaneously with leave for the main position.
16. The employer is obliged to timely submit for consideration by the RKK (and in the absence of the RKK - for the consideration of the trade union) a draft distribution of the vacation queue.
The employer is also obliged to notify each employee of the start and end time of his vacation. Notification is made no later than fifteen days in advance by posting appropriate announcements in workshops, workshops, departments and other places of work.
Employees who receive leave on an individual basis (for example, when the period of leave is postponed) must be warned by written notice.
If, by decision of the RSC, leave is granted to a group of employees out of turn due to an accident, natural disaster, etc., then notification of employees about the time of their vacation must be made no later than two days in advance.
17. Regular or additional leave must be rescheduled or extended in the following cases:
a) in case of temporary incapacity for work of the employee, certified by a sick leave certificate (certificate of incapacity for work);
b) if an employee is involved in the performance of state or public duties;
c) in case of arrest of the employee;
d) in other cases provided for by special resolutions.
The employer has the right to require the employee to submit documents proving the impossibility of using the leave at the appointed time.
In addition, according to a special application of the employee, the vacation must be postponed even if the employer did not notify the employee in a timely manner of the time of his vacation or did not pay wages for the time of vacation before the start of the vacation.
18. If the reasons preventing the employee from going on vacation occurred before it began, then the new vacation period is determined by agreement between the employer and the employee.
If these reasons occurred during the employee's stay on vacation, then the period for returning from vacation is automatically extended by the corresponding number of days, and the employee is obliged to immediately notify the employer about this.
These days are paid by the employer if, by law or contract, he was obliged to pay the employee's wages during the performance of state or public duties or during the arrest.
When the vacation is extended due to temporary disability, the employer does not pay extra days.
Example 1. An employee went on vacation on September 15, for a period of a month. From October 1 to October 10, he was ill and received a sick leave and benefits from the insurance fund. His leave must be extended until October 25, without payment by the employer, since, thanks to the grant of the allowance, the additional days were already paid for when the leave was granted. But if the employee has not received a sick leave, the vacation cannot be extended.
Example 2. An employee, being on vacation, was summoned to court for 3 days by an expert. Vacation must be extended by 3 days with payment for these days according to average earnings.
19. Postponement of the entire vacation in other cases, except for those specified in Art. 17, is allowed by agreement of the employer and employee or by decision of the RSC, and the division into parts of the next vacation (including summarized) - by agreement of the employer and employee.
In the absence of these conditions, the transfer and division of leave is not allowed.
IV. Preservation of the position and earnings during the holidays
20. Dismissal of an employee who is on regular or additional leave is not allowed, except in the following cases:
a) complete liquidation of the enterprise or institution;
b) suspension of work in the enterprise or institution as a whole for a period of more than one month for production reasons;
c) the entry into force of a guilty verdict in a case directly related to work in a given enterprise or institution;
d) in the case when the dismissal is carried out in the order of cleaning the apparatus in the first or second category.
21. During the time the employee is on regular or additional leave, he retains his average earnings.
Payment of earnings is made on the eve of the start of the vacation.
22. If during the employee's stay on vacation his salary has changed, then the recalculation with the employee in connection with this change is not made, except in the case of an increase in the fixed rate or the salary of the employee paid by the time. The enterprise or institution is obliged to pay this employee the difference between the old and the new rate or salary for the time from the date of the pay increase.
Recalculation is made in all cases of detection of irregularities in the calculation of wages.
Note: Clause 22 has actually lost its force in terms of the procedure for calculating average earnings for paying vacation and paying compensation for unused vacation in connection with the publication of the Decree of the All-Union Central Council of Trade Unions of 02.02.1936 (Minutes N 164).
V. Accumulation of holidays and compensation for holidays
23. Not granting the next leave in the current year is allowed only if the granting of leave to this employee may adversely affect the normal course of work of the enterprise or institution.
In order not to grant leave, an agreement between the employer and the employee and the approval of this agreement by the pricing and conflict commission is necessary. In case of failure to reach an agreement between the employer and the employee, the issue is resolved by the RSC in a conflict order.
24. It is prohibited not to grant regular vacations for two consecutive years.
25. It is prohibited not to grant regular holidays to minors, as well as additional holidays in particularly harmful and dangerous professions - with the exception of cases of dismissal of an employee.
26. In addition to cases of direct non-provision of leave (Article 23), leave is considered not used (in whole or in part) due to the fault of the employer also in the following cases:
a) if the vacation remained unused due to the employer's failure to take measures to establish the queue of vacations;
b) if the vacation, which was subject to mandatory transfer, was not postponed for a new period.
27. In case of non-use of vacation (in whole or in part) due to the fault of the employer, the employee must be paid monetary compensation for unused vacation or next year the vacation must be extended for an unused period.
To summarize the leave, an agreement between the employer and the employee concerned is sufficient. The summation of vacation if the employer or employee does not agree, as well as any payment of monetary compensation for vacation (except in cases of dismissal) is allowed only by decision of the RSC.
An employee's refusal to use leave within the time period set for him without agreement with the employer, and if an agreement is not reached - without the permission of the RSC - does not give the employee the right to compensation or summation of leave.
28. Upon dismissal of an employee who did not use his right to leave, he is paid compensation for unused leave.
At the same time, employees who are dismissed for any reason and who have worked with this employer for at least 11 months, subject to offset in the period of work giving the right to leave, receive full compensation.
Employees who have worked from 5 1/2 to 11 months also receive full compensation if they leave due to:
a) liquidation of an enterprise or institution or its individual parts, reduction of staff or work, as well as reorganization or temporary suspension of work;
b) admission to active military service;
c) business trips in accordance with the established procedure to universities, technical schools, workers' faculties, preparatory departments at universities and training courses in universities and workers' faculties;
c) transfer to another job at the suggestion of the labor authorities or the commissions attached to them, as well as party, Komsomol and professional organizations;
e) found out unfitness for work.
In all other cases, workers receive proportional compensation. Thus, employees who have worked from 5 1/2 to 11 months receive proportional compensation if they leave for any other reasons than those indicated above (including voluntarily), as well as all employees who have worked less than 5 1/2 months, regardless of the reasons for dismissal.
29. Full compensation is paid in the amount of average earnings for the period of full leave.
Proportional compensation is paid in the following amounts:
a) with a vacation of 12 working days - in the amount of the daily average earnings for each month of work, subject to offset in the period giving the right to leave;
b) with a vacation of 24 working days and with a monthly vacation - in the amount of two days of average earnings for each month;
c) with a one and a half month vacation - in the amount of three days, and with a two-month vacation - in the amount of four days of average earnings for each month.
When calculating the period of work giving the right to compensation, section I of these Rules shall apply accordingly.
Example 1: A worker joins work on June 1, 1930 and leaves on March 1, 1931. He is entitled to receive compensation for 9 months of work, i.e. with a vacation of 12 working days - 9 days, with a vacation of 24 working days and a month's vacation - 18 days, with a month and a half vacation - 27 days, and with a two-month vacation - 36 days at the rate of daily average earnings.
Example 2. An employee went to work on March 1, and from June 1 he was transferred to a workshop with harmful working conditions. Upon dismissal on August 1, he will receive compensation: for the next vacation - for 5 months of work, and for the additional one - for 2 months, and only seven days' earnings.
30. Compensation for leave extended on the basis of a collective or written employment contract or on the basis of an entry in the passbook shall be paid according to the period of leave specified in the agreement or passbook.
In other cases of non-mandatory vacation extension, the employer is obliged to pay compensation in accordance with the generally established vacation period.
When summing up holidays, extended holidays are included in the calculation in all cases in full.
31. In the event of a combination of jobs, compensation for leave not used in a combined position is paid on a general basis.
32. Compensation for leave is paid at the end of the year of work, except in cases of dismissal of the employee.
33. In the event of the death of an employee, leave compensation is paid on a general basis.
VI. Final provisions
34. When paying wages or compensation for vacation, the average earnings are calculated in the manner prescribed by the Decree of the Council of People's Commissars of the USSR on July 25, 1935.
35. When calculating periods of work that give the right to proportional additional leave or to compensation for leave upon dismissal, surpluses of less than half a month are excluded from the calculation, and surpluses of at least half a month are rounded up to the full month.
35-a. In institutions and in the administrative apparatus of enterprises in the socialized sector (in the boards of trusts, associations, etc., but not in plant administrations), these Rules are applied with the following additions:
a) During each month, 8-9 percent of the entire staff of employees should go on vacation. In 1931, from May 15 to October 1, it is allowed to increase this rate to 12-15 percent (due to the incomplete readiness of resorts and rest houses for work throughout 1931). Deviations from these norms are allowed only in the bodies associated with the maintenance of seasonal work.
Simultaneous granting of holidays to all employees of the institution or its individual parts is allowed only in cases where this is caused by production conditions (for example, if work is unavoidably suspended for the duration of repairs).
Example. The institution has 200 employees. Consequently, during each month 16 - 18 employees must go on vacation. Since holidays must be provided evenly throughout the month, it is possible, for example, to provide holidays on the 3rd, 13th and 23rd or 7th, 17th and 27th, etc. - so that in each of these periods 5 - 6 employees go on vacation, and in just a month 16 - 18 employees.
b) Extension of vacation due to unused days off is prohibited.
c) It is prohibited to grant leave without pay, except in cases where they are provided for by special laws (for example, laws on the distribution of young specialists to work after graduating from universities and technical schools).
d) When going on vacation, the transfer of unfinished work to other employees is not allowed.
36. In cases where special regulations establish for certain categories of workers (in particular, for workers in areas with especially harmful climatic conditions) special rules for granting holidays, these Rules do not apply to the extent that they contradict these special regulations. In the rest of its part, these Rules are applied on a general basis.
Special Rules on additional holidays for especially harmful climatic conditions are attached (not given).
Note: Clause 36 has actually become invalid due to the publication of the Decree of the USSR State Labor Committee, the Presidium of the All-Union Central Council of Trade Unions of December 24, 1960 N 1353/28, which approved a new List of industries, workshops, professions and positions with harmful working conditions, work in which gives the right to additional leave and shortened working day, as well as the Decree of the USSR State Committee for Labor, the Presidium of the All-Union Central Council of Trade Unions of December 29, 1962 N 377/30, which approved the Instruction on the procedure for applying the said List.
37. For workers who joined this employer before July 16, 1929, a 5 1/2-month period of work, giving the right to leave with this employer in 1930, is considered from January 1, 1930.
For employees who entered between July 16, 1929 and January 1, 1930, the period is also considered from January 1, 1930, if they acquired the right to proportional leave or proportional compensation on the basis of a collective agreement in 1929. Otherwise, the period is considered from the day of employment.
For workers whose term of work, giving the right to leave for 1930, is considered from January 1, 1930, the working year in further work with this employer is considered from January 1 to January 1 (i.e. coincides with the calendar year).
Example. The worker, having worked at the factory for 2 years, in 1928 was on another vacation, and the vacation of 1929 was transferred to him in 1930. In 1930 he will receive a summarized vacation, and the period of work on vacation in 1930 January 1, 1930
Upon dismissal of his own free will on October 1, 1930, before using the vacation, the employee will receive full compensation for the vacation of 1929 and, in addition, proportional compensation for 9 months of work in 1930, counting from January 1.
38. When granting leave in enterprises and institutions in 1930 and compensation for them, these Rules do not apply to employees employed in them who, by the day these Rules come into force, have already used their leave for 1930 or are on leave for 1930 .
39. To employees who in 1930 were dismissed by the employer before the entry into force of these Rules and entered in 1930 to a new employer - these Rules apply as follows:
a) if the employee was dismissed with proportional compensation for the part of 1930, then the Rules apply to him on a general basis;
b) if the employee was dismissed after receiving full leave or full compensation for 1930, and for 1929 he also received the right to full leave or full compensation somewhere, then the period of work for a new vacation is considered from January 1, 1931;
c) if the employee was dismissed after receiving full leave or full compensation for 1930, and for 1929 he did not receive the right to full leave or full compensation anywhere, then the period of work for a new vacation is considered from the end of the year after starting work by previous employer.
Example. The worker first went to work on October 1, 1929. Since he worked in 1929 for only 3 months, he did not receive any leave or compensation for 1929. On April 1, 1930, he resigned with full compensation for 1930, and on June 1, 1930, he joined a new employer. The period of work for a new vacation will be considered only from October 1, 1930, when a year passes from the date of entry to work with the previous employer.
In accordance with paragraph 28 of the rules approved by the Decree of the NCT of the USSR dated April 30, 1930 No. 169, upon dismissal of an employee who did not use his right to leave, he is paid compensation for unused leave. At the same time, employees who are dismissed for any reason and who have worked with this employer for at least 11 months, which are subject to offset in the period of work, giving the right to leave, receive full compensation. If an employee worked for 11 months and was granted, for example, 10 days of annual basic paid leave (that is, he used his right to leave), then what compensation is due to such an employee upon dismissal?
Answer
Answer to the question:
1. First, the employee's length of service is calculated using all the required roundings, and only then the right to compensation is determined.
2. From the number of vacation days due to the employee, based on his length of service, the vacation (part) already granted for the given working year must be deducted. And the resulting difference upon dismissal is subject to compensation.
3. If the employee’s vacation is 28 days, then with the experience for the last working year of 11 months, he has the right to all 28 days of vacation, but since he has already used 10 days, he is entitled to receive monetary compensation only for 18 days (Article 127 of the Labor Code of the Russian Federation - compensation is paid only for unused vacation days)
Details in the materials of the System Personnel:
In order to correctly compensate for unused vacations upon dismissal, determine their number. Then multiply by the employee's average earnings. In the recommendation, we will reveal the algorithm of actions at each stage.
Calculation procedure
What should be taken into account when calculating the number of unused vacation days when calculating compensation for unused vacation upon dismissal
If an employee worked in the organization for less than 11 months in a working year, then for this year he is entitled to proportional compensation (). That is, the number of unused vacation days in this case, determine in proportion to the hours worked:
Question from practice: how to determine a period of half a month for calculating compensation for unused vacation
Upon dismissal, an employee who did not use his right to leave is entitled to monetary compensation for all unused holidays (, Rules on regular and additional holidays, approved).
When calculating periods of work that give the right to proportional or compensation for leave upon dismissal, surpluses of less than half a month are excluded from the calculation, and surpluses of at least half a month are rounded up to the nearest full month. Such a rule is established by the Rules approved.
At the same time, a period defined as half a month is considered as a period calculated in days, and is considered equal to 15 days in accordance with the Civil Code of the Russian Federation.
Thus, if an employee has worked in the organization for 14 days, that is, less than half a month, then he is not entitled to compensation for unused vacation.
Question from practice: is it necessary to round up to full days the fractional number of days for which compensation must be paid for unused leave associated with dismissal
When calculating the number of unused vacation days for which you need to pay compensation, you may get a fractional number of days. For example, if an employee needs to pay compensation for five months of work, the result is 11.67 days (28 days: 12 months × 5 months).
The legislation does not provide for a mechanism for rounding off the number of unused vacation days. Therefore, this issue is left to the discretion of the organization.
If an organization decides to round up, for example, to whole days, this should be done not according to the rules of arithmetic, but in favor of the employee ( ).
An organization may also choose not to round the number of unused vacation days to the nearest whole number. See more about this.
A question from practice: to how many digits after the decimal point can the fractional number of days for which it is necessary to pay compensation for unused vacation to a dismissed employee be rounded off
The legislation does not contain an unambiguous answer to this question; in practice, it is most often rounded up to two digits.
When calculating the number of unused vacation days for which you need to pay compensation, you may get a fractional number of days. For example, if an employee needs to pay compensation for 10 months of work, the result is 23.3333 days (28 days : 12 months × 10 months). At the same time, up to how many digits after the decimal point to round the fractional number of unused vacation days, the labor law does not say. At the same time, most accounting programs provide for rounding the fractional number of days to two decimal places according to the general rules of arithmetic.
). That is, the last digit in the fraction is rounded up, even if the preceding digit is less than five.
Compensation for unused vacation
Compensation for unused vacation associated with dismissal is the average salary of an employee (art. , Labor Code of the Russian Federation).
Regardless of whether the employee’s working time is recorded in days or he has a summarized record of working time, calculate the total amount of compensation for unused vacation associated with dismissal using the formula:
With respect and wishes for comfortable work, Elena Petrichenko,
Expert Systems Personnel
Hello, to determine for how many days compensation is due, do the following:
- Calculate the length of service for granting vacation in full months for the entire period of work in this company. Days of an incomplete month are discarded if there are less than 15 of them, or rounded up to a full month if there are 15 or more. Read more about the length of service for vacation here. Determine the total number of vacation days that the employee is entitled to for the entire period of work. Determine the total number of days of vacation granted for this period. Determine the amount of unused vacation (from the value in paragraph 2, subtract the value in paragraph 3) .
in accordance with Article 115 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), the duration of the annual basic paid leave of employees is 28 calendar days. According to Article 127 of the Labor Code of the Russian Federation, upon dismissal, an employee is paid monetary compensation for all unused vacations (regardless of the number of years worked for which vacations should be granted).
At present, by virtue of Article 423 of the Labor Code of the Russian Federation, the number of vacation days for which monetary compensation must be paid is determined in the manner established by the Rules "On regular and additional holidays" approved by the People's Commissariat of Labor of the USSR dated 04.30.30 No. 169. In accordance with paragraph 28 of these Rules, if the employee has worked for the employer for at least 11 months, subject to accounting for the period of work giving the right to leave, then the employee must be paid compensation for the full period of leave in the amount of average earnings (full compensation). In cases where the employee has worked for the employer for less than 11 months, then he is paid proportional compensation. Paragraph 29 of the said Rules establishes that proportional compensation is calculated in the amount of daily average earnings for each month of work, subject to accounting during the period of work giving the right to leave. The amount of compensation for each month worked is determined by dividing the number of days of annual basic paid leave (currently 28 days) by 12 (the number of months in a year). At the same time, the period of work, which is less than half a month, is not taken into account, and more than half a month is rounded up to the nearest whole month upwards.
Thus, the number of unused vacation days subject to compensation to the employee for each month worked can be determined by formula No. 1: 28/12 \u003d 2.33 paid vacation days. If several months worked are subject to compensation, then 2.33 should be multiplied by the number of months worked. The result is the number of unused vacation days to be compensated for the corresponding number of months worked. But in this case, the resulting number is not rounded to an integer.
The procedure for calculating the average wage (including for determining the amount of monetary compensation for unused vacation) is established in article 139 of the Labor Code of the Russian Federation. According to this article, to calculate the average wage, all types of payments provided for by the remuneration system (not having a one-time nature) used in the relevant organization are taken into account, regardless of the sources of these payments. The specific List of payments taken into account when calculating average earnings is approved by the Decree of the Ministry of Labor of the Russian Federation dated May 17, 2000 No. 38
The only valid regulatory document explaining the procedure for calculating compensation for unused vacation remains the Rules on Regular and Additional Leaves approved by the USSR NCT on April 30, 1930 No. 169 (hereinafter referred to as the Rules).
According to paragraphs 28, 29 and 35 of the Rules, an employee who has worked in the organization for 11 months, which are subject to offset in the period of work giving the right to leave, receives full compensation for unused vacation. The amount of full compensation is equal to the amount of vacation pay for a fixed duration.
Please note: even if the employee has not been on vacation for more than two years, which is prohibited by law (Article 124 of the Labor Code of the Russian Federation), upon dismissal, he is entitled to compensation for the entire period. After all, as already mentioned, compensation should be paid "for all unused vacations."
There is one more subtlety: employees with whom civil law contracts are concluded are not entitled to compensation for unused vacation, since the norms of the Labor Code do not apply to them.
Example 1
The employee was admitted to the organization on March 16, 2009, and leaves on February 8, 2010. During this period, he was on annual paid leave for 28 calendar days and on leave without pay for 17 calendar days. It is required to determine the number of calendar days of compensation for unused vacation upon dismissal.The period from March 16 to February 8 next year is 10 months and 23 days. Of the number of calendar days, unpaid leave cannot be included in the length of service giving the right to annual leave, 3 days (17 days - 14 days) (see Article 121 of the Labor Code of the Russian Federation.)
Thus, the employee is entitled to leave for a period of 10 months and 20 days. Since 20 days is more than 15 days, the length of service of the employee, from which the duration of the vacation is determined, is 11 months. In this case, the employee is entitled to compensation in full for 28 calendar days. Considering that he has already used his vacation, he has nothing to compensate upon dismissal. Employees who have worked from 5.5 to 11 months also receive full compensation if they leave due to:
- liquidation of an enterprise (institution) or its individual parts, reduction of staff or work, as well as reorganization or temporary suspension of work;
- admission to active military service;
- business trips in accordance with the established procedure to universities, technical schools, to preparatory departments at universities;
- transfer to another job at the suggestion of labor authorities or commissions attached to them, as well as professional organizations;
- found unfit for work.
Example 2
The employee was hired on March 1, 2008. He used 28 calendar days of annual basic paid leave in 2008. Dismissed on October 1, 2009 in connection with the liquidation of the enterprise. The length of service for calculating compensation for unused vacation will be 7 months. (from March 1 to October 1, 2009 inclusive). This is more than 5.5 months. Therefore, the employee is entitled to compensation for a full vacation, i.e. for 28 calendar days.An employee who has not worked in an organization for a period that gives him the right to full compensation is entitled to proportional compensation for calendar days of vacation. In this case, on the basis of paragraph 29 of the Rules, the number of days of unused vacation is calculated by dividing the vacation duration in calendar days by 12. Based on this, with a vacation duration of 28 calendar days, the amount of compensation will be 2.33 calendar days for each month of work included in the length of service, entitlement to leave.
The current legislation does not provide for the possibility of rounding the days of unused vacation to integers (2.33 days, 4.66 days, etc.).
In accordance with paragraph 8 of Article 255 of the Tax Code of the Russian Federation, for the purposes of taxation of profits, only that amount of compensation for unused vacation, which is calculated in accordance with generally established rules, can be recognized as expenses. Rounding up the number of days of unused vacation (from 4.66 days to 5 days) will lead to an overestimation of the amount of payments made in favor of the employee and to an underestimation of the tax base for income tax. Rounding down (from 2.33 days to 2 days) will result in the employee being paid less than what is required by law.
Rounding to integer values of the number of days of unused vacation is not performed in the calculations given as examples in the letters of Rostrud dated July 26, 2006 No. 1133-6, dated June 23, 2006 No. 944-6.
As a rule, the last month of vacation experience is incomplete. If 15 calendar days or more have been worked in it, this month of experience is rounded up to the full. If less than 15 days have been worked, the days of the month are not taken into account (Article 423 of the Labor Code of the Russian Federation, clause 35 of the Rules, letter of Rostrud dated 06/23/2006 No. 944-6).
Example 3
An employee of the organization was hired on September 27, 2008, and from May 4, 2009 he leaves of his own free will. It is required to determine for how many months he is entitled to compensation for unused vacation, if he has never been on vacation.According to paragraph 35 of the Rules and Article 423 of the Labor Code of the Russian Federation, when determining the number of vacation days for which the employee is paid compensation upon dismissal, it must be taken into account that if the employee has worked less than half a month, the specified time is excluded from the calculation, and if half or more than half a month has been worked, the specified period is rounded up to a full month. The period for granting leave is from September 27, 2008 to September 26, 2009. From 27.09.2008 to 26.04.2009 the employee completed seven months of work. The period from April 27 to May 4 is eight calendar days, which is less than half a month. Therefore, this period is not taken into account.
Thus, in this case, the total number of months for which the employee is compensated is seven. The number of days of unused vacation is calculated by the formula:
Kn \u003d Co x 2.33 days - Ko,
where Kn is the number of days of the main vacation that the employee did not take off by the time of dismissal; Co - the duration of the vacation period in full months; Ko - the number of days of the main vacation that the employee took off by the time of dismissal.
Example 4
The employee was hired on December 3, 2008 and fired on October 31, 2009. In June 2009 he was on basic leave for 14 calendar days, and in August 2009 he was on leave without pay for 31 calendar days. In total, the employee worked in the organization for 10 months and 29 days.Since the duration of the vacation at their own expense exceeded 14 calendar days per working year, the total work experience of the employee should be reduced by 17 calendar days (31 - 14).
The employee's vacation period will be 10 months and 12 calendar days (10 months 29 days - 17 days). Since 12 calendar days are less than half a month, they do not count.
Therefore, 10 full months are counted in the length of service giving the right to leave.
The employee took two weeks of the main vacation. You don't need to pay compensation for them. Thus, in the case under consideration, the employee is entitled to compensation for 9.3 calendar days (10 months x 2.33 days - 14 days).
Compensation upon dismissal is paid at the rate of two working days per month of work:
- employees who have concluded an employment contract for a period of up to two months (Article 291 of the Labor Code of the Russian Federation);
- seasonal workers (Article 295 of the Labor Code of the Russian Federation).
Example 5
A short-term employment contract was concluded with the employee for the performance of work from March 27 to May 5, 2009 inclusive. It is required to calculate the amount of compensation for unused vacation upon dismissal.For the period from March 27 to May 5, 2009 worked 1 month and 8 days. Since 8 calendar days are less than 15, they are not taken into account. Therefore, 1 month of work is counted in the length of service giving the right to receive compensation for vacation.
Since a short-term employment contract has been concluded with the employee, the rules of Article 291 of the Labor Code of the Russian Federation apply. Compensation for unused vacation will be 2 working days.
If an employment contract is concluded with an employee for an indefinite period, but for some reason it is interrupted before the end of the two-month period of work, the norms of Article 291 of the Labor Code of the Russian Federation cannot be applied.
Example 6
On November 2, 2009, an employment contract was concluded with the employee for an indefinite period. The employee quits at his own request from December 14, 2009. It is required to calculate the number of calendar days of compensation for unused vacation upon dismissal.The duration of work in the organization was 1 month and 12 days. Vacation compensation is due to any employee who has worked more than 15 calendar days.
The contract with the employee was concluded for an indefinite period, therefore, the rules established by Article 291 of the Labor Code of the Russian Federation for employees with whom a contract has been concluded for a period of up to two months cannot be applied. The amount of compensation is determined from the generally established vacation duration of 28 calendar days. The length of service giving the right to leave is 1 month. Therefore, the employee is entitled to compensation in the amount of
28 days / 12 months x 1 month = 2.33 days
In educational budgetary organizations, teachers and lecturers who leave after 10 months of the academic year are entitled to receive compensation for the full duration of the vacation of 56 calendar days. If a teacher leaves during the academic year, then he is entitled to proportional compensation at the rate of 4.67 days for each month worked.
Example 7
It is required to calculate the amount of compensation for unused vacation upon dismissal for 5 months to a teacher of a general education school.For 5 months of work, the teacher is entitled to proportional compensation at the rate of 56 days. / 12 months x 5 months = 23.33 days
Upon dismissal, full compensation for unused vacation is paid in the amount of full vacation if the employee worked for 11 months in the corresponding calendar year.
If by the day of dismissal the employee has worked less than 11 months, proportional compensation is calculated, the amount of which is 3.5 days for each month worked.
Example 8
It is required to calculate the amount of compensation for unused vacation upon dismissal for 10 months to a teacher of a general education school.For 10 months of work, proportional compensation is due at the rate of: 42 days. / 12 months x 10 months = 35 days
Article 127 of the Labor Code of the Russian Federation also provides, instead of receiving monetary compensation for unused vacation upon dismissal, the possibility of providing paid leave with subsequent dismissal, except in cases of dismissal on guilty grounds.
In this case, the day of dismissal should be considered the last day of vacation, in connection with which the vacation days granted upon dismissal should also be included in the length of service, on the basis of which the duration of the vacation provided is determined.
Example 9
The employee is dismissed from March 25, 2009 under clause 1 of part 1 of article 77 of the Labor Code of the Russian Federation "by agreement of the parties." In his application, the employee asks to provide him with unused leave for the last working year before dismissal (28 calendar days). On the day of dismissal, the employee worked 8 months and 9 days in the current working year. It is required to determine the length of service for granting vacation, the actual duration of the vacation and the date of dismissal.The date March 25, 2009 is not the day of dismissal, but the day preceding the start of the vacation. As of this date, the employee has worked 8 months and 9 days in the current working year. According to the rounding rules, 9 days are discarded (since 9 days are less than 15 days), therefore, leave must be granted for 8 months in the amount of:
28 days / 12 months x 8 months = 18.66 days
Leave is granted from March 26 to April 13, 2009. This means that it is April 13 that is the day the employee is dismissed, in connection with which, until April 13, 2009, the length of service giving the right to paid leave should be taken into account.
The period from the beginning of the working year to April 13, 2009 accounts for: 8 months. 9 days + 19 days = 8 months 28 days According to the rounding rules, 28 days make up a whole month (since 28 days are more than 15 days), therefore, the specified period accounts for 9 months of experience for vacation. Therefore, leave must be granted for 9 months in the amount of 28 days. / 12 months x 9 months = 20.99 days
The employer is obliged to keep records of the periods of time for which the employee is granted basic leave. The personnel service reflects these periods in the order (instruction) on granting leave to the employee, drawn up in the form No. T-6 (T-6a). On the basis of the order, marks are made in the employee's personal card (form No. T-2), in the personal account (form No. T-54, T-54a), in the note-calculation on granting leave to the employee (form No. T-60). All forms of these documents and instructions for filling them out are approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1.
Amount of compensation for unused vacation
The procedure for calculating compensation follows from clause 8 of the Regulation, approved by Decree of the Government of the Russian Federation of 11.04.2003 No. 213, and the decision of the Supreme Court of the Russian Federation of 13.07.2006 No. GKPI06-637.Based on these documents, the following formula can be derived:
Accounting
Compensation for unused vacation associated with dismissal is reflected in accounting as part of expenses for ordinary activities, namely as part of labor costs (clause 8 PBU 10/99).
| accounting entries (When you hover over the account number, a tooltip appears) |
|||
| Debit | Credit | Sum (rub.) | Content |
| amount of compensation | - accrued compensation for unused vacation associated with dismissal | ||
| amount of personal income tax | - personal income tax withheld | ||
| amount of insurance premiums | - insurance premiums for the amount of compensation are accrued |
||
| amount of compensation | - issued from the cash desk (transferred to the employee's account) compensation for unused vacation associated with dismissal | ||
If no compensation has been paid
An accountant may forget to calculate compensation, but after some time discover his mistake. To avoid the liability mentioned above, you should accrue compensation and try to pay it to the employee, even if he has already been fired.When paying compensation to an already dismissed employee, the amount is reflected in account 76 “Settlements with various debtors and creditors”. Account 70 “Settlements with personnel for wages” can no longer be used, since the employee no longer works in the organization.
(PFR, FFOMS, TFOMS, FSS, NSiPZ)
- Application. Rules on additional holidays for especially harmful climatic conditions (lost force)
Rules on regular and additional holidays
(approved by the People's Commissariat of Labor of the USSR on April 30, 1930 N 169)
(Published on the basis of the decision of the Council of People's Commissars of the USSR of February 2, 1930 - protocol N 5/331, clause 28.1)
With changes and additions from:
August 13, December 14, 1930, January 19, 31, 1931, October 22, 1942, December 6, 1956, March 21, 1961, December 29, 1962, March 3, 2005, April 20, 2010 G.
I. Right to leave
1. Every employee who has worked with this employer for at least 5 1/2 months is entitled to receive regular leave.
The next vacation is granted once during the year of work of the employee with this employer, counting from the date of entry to work, i.e. once a working year.
The right to the next regular leave on account of the new working year arises for the employee after 5 1/2 months from the end of the previous working year.
Employees who joined this employer in 1929 or earlier are granted leave in compliance with Art. 37 .
If an employee is transferred at the suggestion of a labor authority or a commission attached to it, or at the suggestion of a party, Komsomol or professional organization from one enterprise or institution to another, without interruption in work, then the length of service giving the right to leave shall include the time worked at previous employer - provided that the employee, at his own request, did not receive compensation for unused vacation during this time.
Example. The employee entered the plant on February 3, 1930. On July 18, 1930, he receives the right to the next vacation on account of the year of his work, i.e. until February 3, 1931. He will receive the right to the next vacation on account of the second year of work until February 3, 1932 on July 18, 1931, etc.
2. There may be cases when an employee leaves before the end of the working year for which he has already received leave. In these cases, when calculating, the employer has the right to deduct from wages for unworked vacation days.
Withholding is not allowed if the employee is dismissed due to: a) liquidation of an enterprise or institution or its individual parts, reduction of staff or work, as well as reorganization or temporary suspension of work; b) admission to active military service; c) business trips in accordance with the established procedure to a higher education institution, a technical school, a workers' faculty, a preparatory department at a higher educational institution or training courses at a higher education institution or a workers' faculty; d) transfer to another job at the suggestion of a labor body or a commission attached to it, as well as a party, Komsomol or professional organization; e) found out unfitness for work.
This entire article applies regardless of whether the leave is used after 5 1/2 months of work or before this period - in advance (Article 12).
Example. The worker entered on January 15, 1931. From July 15, he received full leave, and on August 15, 1931, he resigned of his own free will. The employer can withhold wages from him for 5 days, since the employee received 12 days of vacation for 12 months of work and did not complete 5 months of them.
3. If the employee left before the end of the working year for which he had already received leave or full compensation, then the new employer has a 5 1/2-month period of work, giving the right to leave, is calculated as follows:
a) if, upon dismissal, a deduction was made for all unworked vacation days, then a 5 1/2-month period is considered from the date of receipt by a new employer;
b) if, upon dismissal, the employer, having the right to deduction, actually did not make it at all or partially, then the 5 1/2-month period begins when the employee has worked for the new employer for one month for each unworked vacation day for which wages remained unreserved (and with an 18- or 24-day vacation from the previous employer - one month for every one and a half or two days);
c) if at the time of dismissal the employer did not have the right to deduction, then the 5 1/2-month period begins after the expiration of the working year for which the leave or full compensation was received from the previous employer; in this case, the one-year period also includes the time of a break in work after dismissal, as well as the time spent at work that does not give the right to leave (temporary, seasonal, etc.).
In this case, the calculation is made on the average earnings at the time of the actual payment of wages or compensation.
35. When calculating periods of work that give the right to proportional additional leave or to compensation for leave upon dismissal, surpluses of less than half a month are excluded from the calculation, and surpluses of at least half a month are rounded up to a full month.
Information about changes:
37. For workers who joined this employer before July 16, 1929, a 5 1/2-month period of work, giving the right to leave with this employer in 1930, is considered from January 1, 1930.
For employees who entered between July 16, 1929 and January 1, 1930, the period is also considered from January 1, 1930, if they acquired the right to proportional leave or proportional compensation on the basis of a collective agreement in 1929. Otherwise, the period is considered from the day of employment.
For workers whose term of work, giving the right to leave for 1930, is considered from January 1, 1930, the working year in further work with this employer is considered from January 1 to January 1 (i.e. coincides with the calendar year).
Example. The worker, having worked at the factory for 2 years, in 1928 was on another vacation, and the vacation of 1929 was transferred to him in 1930. In 1930 he will receive a summarized vacation, and the period of work on vacation in 1930 January 1, 1930
Upon dismissal of his own free will on October 1, 1930, before using the vacation, the employee will receive full compensation for the vacation of 1929 and, in addition, proportional compensation for 9 months of work in 1930, counting from January 1.
38. When granting leave in enterprises and institutions in 1930 and compensation for them, these Rules do not apply to employees employed in them who, by the day these Rules come into force, have already used their leave for 1930 or are on leave for 1930 .
39. To employees who in 1930 were dismissed by the employer before the entry into force of these Rules and entered in 1930 to a new employer - these Rules apply as follows:
a) if the employee was dismissed with proportional compensation for the part of 1930, then the Rules apply to him on a general basis;
b) if the employee was dismissed after receiving full leave or full compensation for 1930, and for 1929 he also received the right to full leave or full compensation somewhere, then the period of work for a new vacation is considered from January 1, 1931;
c) if the employee was dismissed after receiving full leave or full compensation for 1930, and for 1929 he did not receive the right to full leave or full compensation anywhere, then the period of work for a new vacation is considered from the end of the year after starting work by previous employer.
Example. The worker first went to work on October 1, 1929. Since he worked in 1929 for only 3 months, he did not receive any leave or compensation for 1929. On April 1, 1930, he resigned with full compensation for 1930, and on June 1, 1930, he joined a new employer. The period of work for a new vacation will be considered only from October 1, 1930, when a year passes from the date of entry to work with the previous employer.
40. Canceled:
1) Decree of the NCT of the USSR of August 14, 1923 N 36 - Rules on regular and additional holidays ("News of the NCT of the USSR and the RSFSR", 1923, N 4/28);
2) clarification of the NCT of the USSR of August 28, 1923 N 56 on the interpretation of Art. 18 of the Rules on regular and additional vacations ("Izvestiya NKT USSR and RSFSR", 1923, N 4/28);
3) clarification of the NCT of the USSR of August 23, 1924 N 357/30 on the interpretation of Art. 12 - 14 of the Rules on regular and additional holidays ("Izvestia of the NKT of the USSR", 1924, N 31);
4) clarification of the NCT of the USSR dated October 24, 1924 N 446/38 on the procedure for calculating compensation for unused vacation and maintenance during the vacation ("Izvestia of the NCT of the USSR", 1924, N 43);
5) clarification of the NCT of the USSR dated June 16, 1926 N 132/350 on the duration of holidays for persons under 18 years of age and employed in professions that give the right to additional leave due to the harmfulness of work ("Izvestiya of the NCT of the USSR", 1926, N 24-25);
6) clarification of the NCT of the USSR dated April 30, 1929 N 155 on the duration of the vacation ("Izvestia of the NCT of the USSR", 1929, N 20-21).
41. Art. 1 of the Decree of the NCT of the USSR of February 21, 1928 on the working conditions of overgrown students of schools of factory and mining apprenticeships (Izvestia of the NCT of the USSR, 1928, N 11) excludes the word "vacation".
Agreed with the All-Union Central Council of Trade Unions.
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