(more details in her lectures)
Article 100. Working hours
The working time regime should provide for the length of the working week (five-day with two days off, six-day with one day off, a working week with days off on a sliding schedule, part-time work), work with irregular working hours for certain categories of workers, the duration of daily work ( shifts), including part-time working days (shifts), start and end times of work, time of breaks in work, number of shifts per day, alternation of working and non-working days, which are established by internal labor regulations in accordance with labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, and for employees whose working hours differ from the general rules established by a given employer - an employment contract.
Features of the working hours and rest time for transport, communications and other workers with a special nature of work are determined in the manner established by the Government of the Russian Federation.
Article 101. Irregular working hours
Irregular working hours are a special work regime, according to which individual employees may, by order of the employer, if necessary, be occasionally involved in the performance of their labor functions outside the established working hours. The list of positions of employees with irregular working hours is established by a collective agreement, agreements or local regulations adopted taking into account the opinion of the representative body of employees.
Article 102. Working in flexible working hours
When working in flexible working hours, the beginning, end or total duration of the working day (shift) is determined by agreement of the parties.
The employer ensures that the employee works the total number of working hours during the relevant accounting periods (working day, week, month and others).
Question No. 29. Legal regulation of rest time. Types of rest time
According to Art. 106 of the Labor Code of the Russian Federation, rest time is the time during which the employee is free from performing work duties and which he can use at his own discretion.
An essential feature of rest time is the employee’s use of it at his own discretion. This feature makes it possible to distinguish between rest time and time off from work for certain purposes (for example, for treatment for temporary disability, for study by in-service students, etc.).
The right of citizens to rest is enshrined in Part 5 of Art. 37 of the Constitution of the Russian Federation, which states that a person working under an employment contract is guaranteed the duration of working hours, weekends and holidays established by federal law. holidays, paid annual leave.
The Labor Code of the Russian Federation and other (including local) normative legal acts specify the constitutional right to rest, fix the types of rest time, their duration and the procedure for providing them.
Types of rest time are: breaks during the working day (shift); daily (between shifts) rest; weekends (weekly uninterrupted rest); non-working holidays; vacation (Article 107 of the Labor Code of the Russian Federation).
Break for rest and food is provided to the employee during a working day (shift) lasting no more than 2 hours and no less than 30 minutes. This break (in practice it is often called a lunch break) is not included in working hours and is not paid.
The time for granting a break and its specific duration are established by internal labor regulations or by agreement between the employee and the employer.
At jobs where, due to production (work) conditions, it is impossible to provide a break for rest and food, the employer is obliged to provide the employee with the opportunity to rest and eat during working hours. The list of such work, as well as places for rest and eating, are established by the internal labor regulations (Article 108 of the Labor Code of the Russian Federation).
Daily rest (break between shifts) determined by internal labor regulations or shift schedules, its duration depends on the duration of daily work and breaks for rest and food.
The minimum duration of daily rest between shifts, as a rule, should be (together with the break time for rest and food) no less than twice the duration of work in the shift preceding the rest. In two- and three-shift work, this is ensured by the fact that the transition from one shift to another occurs after a day off.
Weekends (weekly rest)– these are days off from work in the calendar week (Articles 110, 111 of the Labor Code of the Russian Federation). With a 5-day work week, employees are given 2, and with a 6-day work week - 1 day off. The duration of weekly uninterrupted rest must be at least 42 hours. The general day off is Sunday. The second day off in a 5-day working week is established by a collective agreement or internal labor regulations. Both days off are usually provided in a row.
For employers whose work suspension on weekends is impossible due to production, technical and organizational conditions, for example due to the continuous nature of production or the need for continuous service to the population, days off are provided on different days of the week in turn to each group of employees in accordance with the internal labor regulations of the organization .
Annual non-working holidays. In accordance with Art. 112 of the Labor Code of the Russian Federation, non-working holidays in the Russian Federation are: January 1, 2, 3, 4 and 5 - New Year holidays; January 7 – Christmas; February 23 – Defender of the Fatherland Day; March 8 – International Women's Day; May 1 – Spring and Labor Day; May 9 – Victory Day; June 12 – Russia Day; November 4 is National Unity Day.
If a day off coincides with a non-working holiday, the day off is transferred to the next working day after the holiday. For the purpose of rational use by employees of weekends and non-working holidays, the Government of the Russian Federation has the right to postpone weekends to other days. Acts on such transfer must be published no later than the deadlines provided for in Part 5 of Art. 112 Labor Code of the Russian Federation.
Exceptional cases of attracting workers to work on weekends and non-working holidays. Work on weekends and non-working holidays is prohibited. Attracting workers to work on these days is allowed only in the cases specified in Art. 113 Labor Code of the Russian Federation.
Employees are recruited to work on such days with their written consent in the event of the need to perform unforeseen work, on the urgent completion of which the future normal operation of the organization as a whole or its individual divisions depends.
Involving employees to work on weekends and non-working holidays without their consent is permitted in the following cases:
1) to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, industrial accident or natural disaster;
2) to prevent accidents, destruction or damage to the property of the employer, state or municipal property;
3) to perform work the need for which is due to the introduction of a state of emergency or martial law, as well as urgent work in emergency circumstances, i.e. in the event of a disaster or threat of disaster (fires, floods, famine, earthquakes, epidemics) and in other cases, threatening the life or normal living conditions of the entire population or part of it.
Annual main leave is provided to all employees with preservation of their place of work (position) and average earnings. The right of employees to leave does not depend on the place of work, the job function performed, the form of ownership on the basis of which economic activities are conducted in the organization, or the term of the employment contract. The right to annual paid leave is enjoyed on a general basis by part-time workers in combined work (Article 286 of the Labor Code of the Russian Federation); employees who have entered into an employment contract for a period of up to two months (Article 291 of the Labor Code of the Russian Federation); workers engaged in seasonal work (Article 295 of the Labor Code of the Russian Federation); employees working under an employment contract for individuals (Article 305 of the Labor Code of the Russian Federation); homeworkers (Article 310 of the Labor Code of the Russian Federation). Persons serving a criminal sentence in the form of correctional labor have the right to basic leave of 18 working days. Other types of leave provided for by labor legislation are provided to them on a general basis (clause 6 of article 40 of the Penal Code of the Russian Federation).
Annual basic paid leave is provided to employees for a period of 28 calendar days.
Work time- the time during which the employee, in accordance with the internal labor regulations and the terms of the employment contract, must perform job responsibilities, as well as other periods of time that, in accordance with the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation, relate to working time (Article 91 of the Labor Code of the Russian Federation).
Other periods that, in accordance with the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation relate to working time, are considered idle periods, breaks for heating and rest, breaks for feeding a child, time spent on a business trip, time between shifts for rest during the period being on watch.
Normal working hours cannot exceed 40 hours per week. The normal duration cannot be changed by other regulations or agreement of the parties.
Local regulations may establish working hours for employees. At the same time, it must be remembered that collective agreements, agreements, and employment contracts cannot contain conditions that reduce the level of guarantees for workers in comparison with those established by labor legislation and other regulatory legal acts containing labor law norms. If such conditions are included in a collective agreement, agreement or employment contract, then they are not subject to application (Part 2 of Article 9 of the Labor Code of the Russian Federation).
State authorities of the constituent entities of the Russian Federation may adopt laws and other regulatory legal acts containing labor law norms on issues not falling under the jurisdiction of federal state authorities. At the same time, a law or other regulatory legal act of a constituent entity of the Russian Federation containing labor law norms should not reduce the level of labor rights and guarantees for employees established by the Labor Code of the Russian Federation or other federal laws.
2. Types (duration) of working time: a) normal working time; b) reduced working hours; c) part-time work
Labor legislation establishes the following types of working hours:
normal working hours;
reduced working hours;
part-time work.
Normal working hours are the duration of working hours applied if the work is performed under normal working conditions and the persons performing it do not need special labor protection measures. Article 91 of the Labor Code defines the limit of normal working time at 40 hours per week. Within these limits, the normal working hours are established by collective agreements and agreements. In cases where a collective agreement was not concluded or the condition on the duration of work was not included in the collective agreement, the maximum norm established by law - 40 hours per week - applies as the real standard of working time.
Shortened working hours mean working hours reduced compared to normal, when the reduction is carried out in accordance with the law or a collective agreement.
Shortened working hours are established:
for workers under the age of sixteen - no more than 24 hours a week;
for workers aged sixteen to eighteen years - no more than 35 hours per week;
for employees who are disabled people of group I or II - no more than 35 hours per week;
for workers engaged in work with harmful and (or) dangerous working conditions - no more than 36 hours a week in the manner established by the Government of the Russian Federation, taking into account the opinion of the Russian Tripartite Commission for the Regulation of Social and Labor Relations.
Until the corresponding legal act of the Government of the Russian Federation is adopted, the List of production facilities, workshops, professions and positions with hazardous working conditions, approved by the Resolution of the State Committee of Labor of the USSR and the Presidium of the All-Union Central Council of Trade Unions of October 25, 1974 N 298/P-22, is in force. Work in which gives the right to additional leave and shortened working hours 20.
All employees whose professions and positions are provided for in production and workshops in the relevant sections of the List, regardless of industry, have the right to a shortened working day. The right to a shortened working day or working time arises only if the employee actually performed work in hazardous conditions for a duration of at least half the working day established by the List for a given production, workshop, profession or position.
The Labor Code of the Russian Federation and other federal laws may establish reduced working hours for other categories of workers (teaching, medical and other workers). The employer has the right, at his own expense, to establish a shortened working week for other categories of employees.
Thus, establishing reduced working hours is the responsibility of the employer. When concluding an employment contract, the parties do not have the right to increase the working hours established by law.
Unlike reduced working hours, part-time working hours can be established by agreement between the employee and the employer, both upon hiring and subsequently.
Part-time working time is working time whose duration is less than normal. In the event that an employee, in accordance with the law, has the right to reduced working hours, time of shorter duration compared to the corresponding standard of reduced working hours will be considered incomplete.
At the same time, the employer is obliged to establish a part-time or part-time work week at the request of a pregnant woman, one of the parents (guardian, trustee) with a child under the age of 14 (a disabled child under the age of 18), as well as a person caring for a sick family member in accordance with a medical certificate issued in the manner established by federal laws.
Part-time work does not entail for employees any restrictions on the duration of annual basic paid leave, calculation of length of service and other rights. At the same time, the employee is deprived of the right to additional leave provided for in Article 116 of the Labor Code of the Russian Federation if he is assigned a part-time working day. If he is assigned a part-time working week, then the right to the specified additional leave is not lost.
Introduction
The predominant part of the relations between participants in the process of social organization of labor, which they enter into to achieve certain goals, satisfy various interests and needs, objectively needs appropriate ordering, the necessary stability, regularity and consistency, which is quite relevant in today's conditions. By entering on this basis into labor and related relations and participating in them, their subjects acquire mutual subjective rights and obligations guaranteed by the state, and their connection takes on a special legal form, becomes a legal relationship, where, at a certain period of time, issues of no small importance become important. relating to working time, which is the object of study in this course work.
Legal regulation of working time has great importance and special relevance, since during this time material and spiritual values are created, and this in turn is the basis for the well-being of the entire society and its individual members. That is, working time involves each employee working out the amount of work established for him in his own interests, the interests of the employer and society as a whole.
An analysis of the current labor legislation shows that in this context, a special role also belongs to the contract, which is a form of individual regulation of labor relations that allows taking into account the personal qualities of workers and specific features employers ( legal entities; individual entrepreneurs; citizens who are granted the right to conclude and terminate employment contracts with employees, etc.). It formulates not only the rights and obligations of the parties to these relations, but also generally determines the procedure and conditions for their implementation.
Thus, the object of research in the presented course work is the legal regulation of working time.
The purpose of the work is a scientific and applied analysis of legal aspects and problems related to working time.
To achieve this goal, the work sets tasks to study, analyze and solve such problematic issues as: the concept and meaning of working time; types of working time, its regulation; overtime work; working time regime, its use and accounting.
1. The concept and meaning of working time
In its most general form, working time can be defined as the time intended for labor activity. Being a multifaceted category, the term “working time” is used in various fields of knowledge (law, economic theory, sociology, etc.). Labor law is related to working time as a legal phenomenon.
as a certain norm (measure) of workers’ labor. The standard working time is the established amount of working time that an employee must work during a calendar week and during a day;
as a set time during which an employee, in accordance with labor, collective agreements, internal labor regulations, is obliged to be at the workplace and perform his job duties. Worker also includes time of work performed at the suggestion, order or with the knowledge of the employer in excess of the established working hours ( overtime work, work on public holidays, holidays and weekends). Based on this provision, working hours include, for example, downtime, being late for work, etc. A different interpretation would deprive the employer of a legal basis for bringing an employee to disciplinary liability in the event of absence from work without good reason or use of working time for other purposes. Time intended not for performing work duties can be recognized as working time only in cases expressly provided for by the Labor Code: for example, additional special breaks (Article 135 of the Labor Code). As a rule, an employee performs his job duties directly at the workplace. An exception to this is, in particular, the work of homeworkers, the performance of work duties during business trips;
as actual time worked, during which the employee actually performed his job duties. This time does not always coincide with the established one, it can be either less or more than it: in particular, shortfalls in working hours can be caused by the employee’s illness, absenteeism, overtime - involving him in overtime work, working on weekends, etc. Shortage of working hours due to the fault of the employee (for example, due to being late for work) may lead to the application of disciplinary sanctions and other legal measures against him.
Legal regulation of working hours is of great importance. During working hours, material and spiritual values are created - the basis for the well-being of the entire society and its individual members. This time involves each employee working out the work set for him in his own interests, the interests of the employer and society as a whole. In addition, the length of working time also determines the length of rest time that remains for the employee after work and which he can use at his own discretion.
2. Types of working time, its regulation
2.1 Normal (maximum) working hours
According to Art. 110 of the Labor Code, the regulation of working hours is carried out by the employer, taking into account the restrictions established by the Labor Code and the collective agreement. Consequently, establishing specific working hours is within the competence of the employer. The Labor Code and the collective agreement establish restrictions (upper limits) on working hours, beyond which the employer has no right.
Working time is standardized by establishing norms for its duration throughout the calendar week and during the day. In accordance with this, the main standards of working time are the working week (the main measure of work duration) and the working day (work shift), which are calculated in hours and minutes.
Vary the following types(standard duration during the calendar week) working time: normal (maximum) working time (normal working time) and part-time working time.
In turn, normal working time includes full working time (full working hours) and reduced working hours (shortened working hours).
Full working time. In accordance with Art. 43 of the Constitution and Art. 112 of the Labor Code, full working time cannot exceed 40 hours per week. The full standard working time is its maximum value established by law, which applies to all workers who work under normal conditions. The specified norm cannot be increased by local regulations, employment contracts, except for cases expressly provided for in the Labor Code.
For workers engaged in work with harmful conditions labor, a reduced working time is established - no more than 35 hours per week.
The total duration of working hours, including the time of delivery of workers to the place of work underground and back to the surface, cannot exceed 37 hours 45 minutes per week.
The list of industries, workshops, professions and positions with hazardous working conditions, work in which gives the right to reduced working hours, is approved by the Government of the Republic of Belarus or an agency authorized by it.
Part 1 and 2 art. 113 of the Labor Code provide for upper limits on reduced working hours for workers in jobs with hazardous working conditions. Compared to the Labor Code and other legislative acts, the duration of these limits has been reduced by one hour. (According to the Labor Code, it was 36 hours and 38 hours 45 minutes per week, respectively.)
In accordance with the Procedure for applying the List, employees of organizations of various forms of ownership, whose professions and positions are provided for in the relevant sections of the List, have the right to reduced working hours and additional leave.
Workers whose professions and positions are provided for in the section “General professions of all sectors of the national economy” are granted reduced working hours and additional leave regardless of what production or workshop they work in, unless these professions and positions are specifically provided for in the relevant sections or subsections of the List.
If the List indicates certain indicators, types of work and production by categories of workers (for example, “workers”, “managers and specialists”, “workers, managers, specialists”, “workers”), the right to reduced working hours and additional leave is granted all employees of these categories performing work in accordance with technological documents, regardless of the name of their professions and positions.
The time worked in production, workshops, professions and positions with hazardous working conditions provided for in the List includes the days on which the employee was actually employed in these conditions for at least half of the working day. If the List contains the indication “permanently employed” or “permanently working”, the days on which the employee was actually employed full-time in these conditions are counted against the time worked in production, workshops, professions and positions with hazardous working conditions provided for in the List. a day established for employees of a given production, workshop, profession or position. Full-time work means performing work under the conditions provided for in the List for at least 80% of the working time. Working time also includes periods spent on preparatory, auxiliary, and routine repair work outside of one’s workplace in order to ensure that the employee performs the labor functions provided for in production and technological documents.
For workers whose professions and positions are not included in the List, but who on certain days perform work in production facilities, workshops, professions and positions with hazardous working conditions provided for in the List, a reduced working time is established on these days of the same duration as for employees permanently employed in this job, and additional leave is granted on the same basis as for employees whose professions and positions are provided for in the List.
In Part 2 of Art. 113 of the Labor Code specifies the provision of Part 1 based on the specifics of the labor of workers engaged in underground work, for example, miners, tunnelers, blasters, etc. Taking into account the additional time they have to go underground, deliver underground to the place of work and back to it surface to the 35 hours intended for direct work activity, they add 2 hours 45 minutes per week. As a result, the total working time of these employees is 37 hours 45 minutes per week.
2.2 Shortened working hours
Shortened (part-time) working hours are established by agreement between the employee and the employer, both upon hiring and subsequently.
The employer is obliged to establish a part-time or part-time work week: at the request of a pregnant woman, a woman who has a child under the age of fourteen (including one in her care) or who is caring for a sick family member in accordance with a medical report; disabled people in accordance with medical recommendations; when applying for a part-time job; other categories of workers provided for by the collective agreement or agreement.
The provision for part-time work is included in the employment contract when the employee is hired. The transition to part-time work during the period of employment is formalized by order (instruction).
In accordance with Art. 118 part-time work is a reduction in the norm of work duration, i.e. part of the established normal or reduced working hours. Part-time working hours are established as a general rule in accordance with Art. 118 and part 1 of Art. 289 of the Labor Code by agreement between the employee and the employer, both upon hiring and during the period of employment with this employer in the form of a part-time or part-time work week.
In Art. 289 does not limit either the circle of employers who have the right, by agreement with the employee, to establish part-time working hours, or the circle of persons to whom it can be established.
In practice, part-time work is established or canceled primarily at the request of the employee, if the employer, taking into account the interests of production, can satisfy such a request.
In Part 2 of Art. 289 of the Labor Code establishes exceptions to the general rule when the employer is obliged to establish a part-time working day or part-time working week.
In accordance with clause 1, part 2, art. 289 of the Labor Code, the employer is obliged to establish part-time working hours for the following: 1. pregnant woman, regardless of the stage of pregnancy (the state of pregnancy must be confirmed by a medical certificate); 2. a woman who has a child under 14 years of age (including those in her care); 3. a woman caring for a sick family member, in accordance with a medical report. In clause 1, part 2, art. 289 of the Labor Code determines that the employer is obliged to establish part-time working hours for a woman who makes such a request, provided that she is directly caring for a sick family member. Norm Art. 96 family members include: husband, wife, as well as children and parents of both spouses who are dependent on them and living with them. The need to care for a sick family member must be confirmed by a medical certificate.
Based on clause 2, part 2, art. 289 of the Labor Code, the employer is obliged to establish part-time working hours for working disabled people, regardless of the disability group and the cause of disability, in accordance with medical recommendations. An examination of long-term or permanent disability is carried out by the MREC (medical rehabilitation expert commission), which establishes the degree of disability, the group and causes of disability, draws up an individual rehabilitation program for a disabled person (conditions and types of work, work and professions available to them due to health conditions), checks the correctness of the use of disabled people at work in accordance with these conclusions (the Regulations on medical and rehabilitation expert commissions were approved by Resolution of the Council of Ministers of the Republic of Belarus dated December 31, 1992 No. 801). An individual rehabilitation program for a disabled person is a document mandatory for execution by the relevant government agencies, as well as enterprises, institutions and organizations, regardless of the form of ownership and management (Part 3 of Article 13 of the Law of the Republic of Belarus “On Social Protection of Disabled Persons in the Republic of Belarus” (as amended and supplemented in 2004)).
In accordance with clause 3, part 2, art. 289 of the Labor Code, the employer is obliged to establish a part-time or part-time work week when hiring part-time work. Part-time work in accordance with Art. 343 is allowed during free time from main work (on weekends and holidays, during compensatory days, breaks between shifts, at lunchtime and during vacation periods). In Art. 345 of the Labor Code establishes that the duration of part-time work cannot exceed half of the normal working time established by Art. 111–114 Labor Code (four hours a day or a full working day on a day off at the main place of work of this employee).
Work during students' free time full-time education higher education institutions is not considered a part-time job, but, as a rule, is carried out on a part-time basis.
Part-time work occurs when staffing table a portion of the salary is provided for a certain position (for example, half, a quarter).
Based on clause 4, part 2, art. 289 of the Labor Code, the employer is obliged to establish part-time working hours for other categories of employees provided for by the collective agreement or agreement.
These categories include, for example: women with a disabled child under the age of 18; persons combining work with studying in secondary schools; persons combining work with studying in evening and correspondence higher and secondary specialized educational institutions; persons who became ill and suffered radiation sickness; persons who took part in 1986–1989 in eliminating the consequences of the disaster in Chernobyl nuclear power plant and other categories of workers.
The condition for working part-time (Part 3 of Article 289 of the Labor Code) is in accordance with Art. 19 of the Labor Code is mandatory and is included in a written employment contract when hiring, and is also formalized by order (instruction). The order (instruction) for employment with part-time work indicates the period (definite, indefinite) of work, the duration of working hours and its schedule during the working day or working week (number of hours per day, working days), the beginning and end of the working day (shifts), payment procedure, etc. .
The order (instruction) is announced to the employee against signature (Article 25 of the Labor Code). When hiring a part-time employee, a probationary period may be established on a general basis.
In the course of work, the duration of previously stipulated working hours may be changed. The establishment or cancellation of part-time work during the period of employment can be carried out: by mutual consent of the employee and the employer (on the basis of a written agreement on the establishment or cancellation of part-time work); at the request of a category of employees (for example, those specified in Part 2 of Article 289 of the Labor Code); at the initiative of the employer in connection with production, organizational or economic necessity (except for the categories of workers specified in Part 2 of Article 289). In this case, the employer is obliged to notify the employee in writing no later than one month in advance, since changes essential conditions labor (Article 32 of the Labor Code). If the employee refuses to continue working under the new regime, the employment contract is terminated under clause 5 of Art. 35 TK.
For part-time workers, the employer, in agreement with the trade union, may divide the working day into separate parts with a break exceeding two hours, or with two or more breaks, including a break for rest and food, with a total duration of no more than four hours. In this case, the total working time should not exceed the established duration of daily work. Break times during the working day are not included in working hours.
For part-time workers, at their request, the employer, in agreement with the trade union and taking into account the interests of production, can establish a flexible working time regime (a form of organizing working time in which self-regulation of the beginning, end and total duration of the working day is allowed within certain limits.
Actual hours worked during part-time work are taken into account daily.
When working part-time, the duration of work is reduced, and workers are paid:
at time-based form remuneration - in proportion to the actual time worked at the tariff rates of the assigned categories (monthly rate). When standard tasks are established for part-time workers with time-based wages, payment is made based on the final results for the amount of work actually completed; in the case of a piecework form of remuneration - for the volume of output according to the norms and prices in force at the enterprise. .
In accordance with the Instructions for filling out forms of state statistical reporting on labor, approved by Decree of the Ministry of Statistics and Analysis of the Republic of Belarus dated September 17, 2001 No. 80, the payroll includes workers hired on a part-time or part-time basis. In the payroll, these employees are counted for each day as whole units, including non-working days of the week determined upon hiring. This number also includes employees transferred to part-time (weekly) work at the initiative of the employer.
When determining the number accepted for calculating the average salary, employees hired (transferred) to part-time or part-time work are taken into account in proportion to the time actually worked in the following order.
The total number of man-days worked by these employees is determined, for which total number man-hours worked in the reporting month are divided by the established length of the working day. Then the number of employees is determined, for which the number of man-days worked is divided by the number of working days according to the calendar in the reporting month.
During the period of annual and other paid vacations, the same calculation procedure is maintained, the number of man-hours worked is taken conditionally.
Bonuses and remunerations for part-time workers are accrued in accordance with the existing regulations on bonuses, collective bargaining agreements, and agreements in force in the organization (for time-based wages - in proportion to the time spent, and for piecework wages - depending on output).
When sending part-time workers on a business trip average earnings and daily allowances are determined depending on the length of the working day on a business trip, which is established by agreement between the employer and the employee and is indicated in the order (instruction).
Information about part-time work work book the employee is not included, and part-time work does not entail restrictions on any labor rights for employees.
For employees working part-time, a break for rest and food is provided if the length of the working day (shift) exceeds four hours.
Along with a break for rest and food in accordance with Art. 135 of the Labor Code, an agreement, a collective agreement for certain categories of workers (including part-time workers) may establish additional special breaks (for example, for heating, for rest during loading and unloading operations), which are included in working hours.
Women who have children under the age of one and a half years and work part-time are given additional breaks to feed the child at least after three hours of work, lasting at least 30 minutes each. If there are two or more children under the age of one and a half years, the duration of the break is set at least an hour. The break for feeding the child is included in working hours and is paid according to average earnings.
At the request of a woman who has children under the age of one and a half years, and depending on the length of her working day (shift), it is allowed to: add a break for feeding the child to the lunch break; moving the break for feeding the child to the end of the working day, i.e. earlier completion of work compared to the duration of working hours established by the employment contract.
Part-time work does not entail restrictions on the provision of days off, public holidays and public holidays.
Part-time work does not entail any restrictions on the duration of labor and social leave.
Resolution of the Ministry of Labor of the Republic of Belarus dated March 20, 1995 No. 28 “On approval of the Procedure for applying the List of industries, workshops, professions and positions with hazardous working conditions, work in which gives the right to reduced working hours and additional leave”, with subsequent amendments and additions made by Resolution of the Ministry of Labor of the Republic of Belarus dated January 5, 2000 No. 2, establishes that days , in which the employee was actually employed in these conditions for at least half of the working day.
When recording “permanently employed” or “permanently working” in the List, the days on which the employee was actually employed full-time in these conditions are counted against the time worked in production, workshops, professions and positions with hazardous working conditions provided for in the List. established for employees of a given production, workshop, profession or position.
Full-time work means performing work under the conditions provided for in the List for at least 80% of the working time.
Study leaves for part-time work are provided on a general basis in accordance with Art. 208, 209, 211, 212 TK.
Workers studying on the job in secondary general education evening (shift) schools may be granted labor leave, at their request, in such a way that they can be used before the start of classes in schools.
Workers studying on the job at the direction (application) of the employer or in accordance with contracts concluded with them (for training, collective or labor) in secondary vocational schools in the evening (shift) form of education, in evening (shift) departments of secondary vocational schools, are provided with additional leave for preparing and passing exams for a duration of 30 calendar days during the year, while maintaining the average salary at their main place of work (Article 211 of the Labor Code).
Employees admitted to entrance examinations to higher and secondary specialized educational institutions are granted leave without pay. Those admitted to entrance examinations to higher educational institutions (including technical colleges) are granted a leave of at least 15 calendar days, and to secondary specialized educational institutions - at least 10 calendar days, not counting the time for travel to the location of the educational institution and back (Article 212 of the Labor Code).
The time spent working part-time is counted both in the total length of service and continuous experience work in their specialty, including: when assigning state pensions, when establishing salaries (rates) for education workers, health care workers, library workers and some other specialists, whose salaries (rates) are determined taking into account length of service, when providing benefits to persons working in polluted areas territories, and in other cases where current legislation provides for the provision of any benefits and advantages to employees.
For persons employed on a part-time basis, work experience is calculated on the basis of entries in work books and other documents at the rate of one year of work experience per year of work.
According to Parts 1, 3, 4, 5 of Art. 118 of the Labor Code, part-time work is established in the form of a part-time working day, a part-time working week, or a combination of both.
In accordance with Parts 1 and 2 of Art. 118 of the Labor Code, part-time work, as a general rule, can be established by agreement (mutual agreement) between the employee and the employer. The specific duration of part-time work is determined in the same way.
Part-time work is part of the normal working time (full or shortened). Therefore, remuneration is made here for the work actually performed based on the forms of remuneration used by the employer.
Part-time work should be distinguished from reduced working hours. The difference between them lies in the procedure for establishing and determining the duration, as well as in remuneration.
2.3 Standardization of the duration of daily work (shift)
The duration of daily work (shift) is determined by the internal labor regulations or the work schedule (shift) in compliance with the norm of the length of the working week established by the employer in accordance with Articles 112 - 114 of the Labor Code.
The duration of daily work (shift) cannot exceed: for workers aged fourteen to sixteen years – 4 hours 36 minutes, from sixteen to eighteen years – seven hours; for students of secondary schools, vocational and technical educational institutions working during the academic year in their free time, from fourteen to sixteen years old - 2 hours 18 minutes, from sixteen to eighteen years old - 3 hours 30 minutes; for disabled people of groups I and II – seven hours; for those working in the evacuation zone (due to increased radioactive contamination of the territory), including those temporarily assigned or sent to these zones - six hours.
For workers engaged in work with hazardous working conditions, where reduced working hours are established, as well as for workers with a special nature of work, the maximum permissible duration of daily work (shift) cannot exceed: for a 35-hour work week - eight hours; for a 30-hour or less working week – six hours.
Part 1 art. 115 of the Labor Code provides for a procedure for regulating the duration of daily work, in which the established length of the working week must be observed. This procedure applies to a five-day and six-day working week (Article 124 of the Labor Code).
In parts 2 and 3 of Art. 115 of the Labor Code provides for upper limits on the duration of daily work for various categories of workers, which apply to a five-day and six-day working week. Compared to previous legislation, the maximum duration of daily work has been reduced. In connection with the above, there is a need to bring this legislation into compliance with Art. 115 TK.
In Art. 115 Labor Code, the duration of daily work is called a shift. Here the term “shift” does not mean shift work (Article 125 of the Labor Code), but the local standard for the duration of daily work for a five-day and six-day work week.
On the eve of public holidays and public holidays (part one of Article 147 of the Labor Code), the working hours of employees are reduced by one hour.
If, due to production conditions, it is impossible to reduce the duration of daily work (shift) on the eve of holidays, employees should be given an additional day of rest as overtime hours accumulate.
In contrast to the Labor Code, the rule on reducing the duration of work on the eve of public holidays and public holidays (Part 1 of Article 147 of the Labor Code) applies to all categories of workers, incl. and for workers with reduced working hours (Articles 113, 114 of the Labor Code). Reducing work on the eve of public holidays and public holidays means a corresponding reduction in the norm of working hours in the week (five-day or six-day) on which the holiday occurred.
Providing an additional day of rest is allowed in cases where reducing the duration of daily work (shift) is impossible (for example, in continuously operating organizations).
The Labor Code, unlike the Labor Code, does not provide for a maximum duration of work on the eve of weekends with a six-day working week.
When working at night (from 10 pm to 6 am), the established duration of work (shift) is reduced by one hour with a corresponding reduction in the working week.
This rule does not apply to employees for whom a reduction in working hours is already provided (Articles 113 and 114 of the Labor Code), as well as when such a reduction is impossible due to production conditions, including in continuous production, or if the employee is hired to perform work only at night .
The following are not allowed to work at night, even if it falls on part of the working day or shift:? pregnant women, women with children under three years of age and workers under eighteen years of age.
Disabled people may be involved in night work only with their consent and provided that such work is not prohibited to them in accordance with a medical certificate.
In contrast to the Labor Code, the procedure for reducing the duration of work at night is defined in a new way. Now the duration of not only daily work (shift), but also the weekly norm of working hours is reduced by one hour. In this regard, the unworked hour is not subject to further work (compensation).
Part 2 Art. 117 of the Labor Code establishes exceptions to the general rule on reducing the duration of work at night, which apply to certain categories of workers.
Additional payments are made for night work (Article 70 of the Labor Code).
3. Overtime
Overtime is considered to be work performed by an employee at the suggestion, order or with the knowledge of the employer in excess of the working hours established for him, provided for by the internal labor regulations or the shift schedule.
Overtime work performed in excess of the established working hours is not recognized: on the initiative of the employee himself without a proposal, order or with the knowledge of the employer; by part-time workers within a full working day (shift); part-time workers for the same employer while performing another function, as well as for another employer in excess of the main work hours; homeworkers.
In Part 1 of Art. 119 of the Labor Code establishes a detailed definition of the concept of “overtime work”. Work is recognized as overtime only when it is performed at the suggestion, order or with the knowledge of the employer.
“At the suggestion” means that the manager representing the employer (for example, a foreman, shop manager) took the initiative to perform overtime work, leaving the decision on this issue to the discretion of the employee. “By order” means that the manager gave a binding instruction to perform overtime work.
An offer or order for overtime work may be written or oral.
“With knowledge” means that the manager, without proposing or ordering overtime work, nevertheless knew about it and, thus, allowed it.
In Part 2 of Art. 119 of the Labor Code contains a list of cases when work performed in excess of the established working hours is not recognized as overtime. Within the meaning of this norm, this list is exhaustive and cannot be expanded. Involvement in overtime work is allowed only with the consent of the employee, with the exception of cases provided for in Article 121 of the Labor Code, as well as a collective agreement or agreement.
The following are not allowed to work overtime: pregnant women; women with children under three years of age; workers under eighteen years of age; workers studying on the job in general education and vocational educational institutions, on class days; other categories of workers in accordance with the law.
Women with children aged from three to fourteen years (disabled children up to eighteen years old), and disabled people can be involved in overtime work only with their consent, and disabled people only if such work is not prohibited to them in accordance with a medical certificate .
Part 1 art. 120 of the Labor Code provides for three different grounds for the use of overtime work: employee consent (general rule); prescription of the law - Art. 121 Labor Code (without the employee’s consent) and the terms of the collective agreement, agreement (without the employee’s consent).
Employees listed in Part 2 of Art. 120 Labor Code, as well as employees defined in Part 3 of Art. 120 Labor Code (in the absence of their consent). These restrictions apply to overtime work performed on any of the grounds provided for in Part 1 of Art. 120 TK.
The list of categories of workers who are not allowed to work overtime is not exhaustive. Other categories of workers (clause 6 of Article 120 of the Labor Code) include, in particular: persons with active form tuberculosis; when working with radioactive substances and sources ionizing radiation; workers engaged in work using vibrating machines; persons exempted from overtime work based on the conclusion of the medical advisory commission (MCC) or (in its absence) the attending physician and the chief physician of the medical institution.
Refusal of an employee to perform overtime work applied in accordance with Art. 121 of the Labor Code or a collective agreement, agreement, is a violation of labor discipline, which may entail disciplinary liability.
Overtime work without the employee's consent is allowed only in the following exceptional cases: when performing work to prevent a disaster, industrial accident, immediately eliminate their consequences or the consequences of a natural disaster, prevent accidents, provide emergency medical care by employees of healthcare institutions; when carrying out socially necessary work on water supply, gas supply, heating, lighting, sewerage, transport, communications - to eliminate accidental or unexpected circumstances that disrupt their proper functioning.
In Art. 121 of the Labor Code preserves the list of cases provided for by the Labor Code when overtime work is allowed without the consent of the employee. This list is exhaustive and cannot be expanded.
According to Art. 122 of the Labor Code, overtime work should not exceed four hours for each employee for two consecutive days and 120 hours per year.
The Government of the Republic of Belarus has the right to reduce for a certain period the maximum amount of overtime work in the Republic as a whole or by industry or individual territory in order to expand employment opportunities for the unemployed population.
The employer is required to keep accurate records of overtime work performed by each employee. Information about their quantity is provided to the employee upon his request.
The maximum amount of overtime work does not include work performed in accordance with Art. 121 TK. Here, only work performed with the consent of the employee and on the basis of a collective agreement or agreement is taken into account.
The right to reduce (but not increase) the maximum amount of overtime work is granted to the Government of the Republic of Belarus. The government can do this for a certain period (and not for an indefinite period), on the scale of the republic, sector or territory (and not in relation to individual employers) and when it is necessary to employ the unemployed population.
Overtime work is subject to accounting according to standard form T-15 based on documents issued for the performance of such work, indicating in them the time worked and other data necessary to determine additional payments for these hours of work.
4. Working hours
4.1 The concept of working hours
Working hours - the procedure for the employer to distribute the norms established by the Labor Code for employees of daily and weekly working time and rest time throughout the day, week, month and other calendar periods.
The working time schedule determines the start and end time of the working day (shift), the time of lunch and other breaks, the sequence of alternating workers in shifts, working days and weekends.
The working hours of employees are developed based on the working hours used by the employer.
The working hours are determined by the internal labor regulations or the work schedule (shift).
The work schedule (shifts) is approved by the employer in agreement with the trade union.
The established working hours are brought to the attention of employees no later than one month before it comes into force.
For the first time, a detailed definition of the concept of “working hours” has been enshrined at the legislative level.
It is necessary to distinguish between the working hours used by the employer and the working hours of specific employees. The second is derived from the first.
To determine the working hours of employees, local internal labor regulations or work schedules (shifts) are used. Typically, in practice, the term “work schedule” is used in single-shift production, and “shift schedule” is used in shift work.
Part 6 art. 123 of the Labor Code determines the minimum period during which the established work schedule is brought to the knowledge of workers. This period is at least one month before the regime comes into effect.
4.2 Five-day and six-day working week. Working hours during shift work
A five-day work week with two days off or a six-day work week with one day off is established by the employer in agreement with the trade union.
If, with a five-day working week, the sum of the hours of five working days per calendar week is less than the weekly norm, non-working is compensated as it is generated in individual weeks at the expense of one or two (except for Sundays) days off, which are planned as working days in the work schedule (shift). .
The sum of hours of work according to the shift schedule for a five-day and six-day working week must correspond to the calculated standard of working time for each calendar year, which is established by the Government of the Republic of Belarus or an authority authorized by it.
There are two types of working week: five-day with two days off and six-day with one day off. The specific type of working week is established by the employer in agreement with the trade union. (According to the previously effective Labor Code, the type of working week was established in the collective agreement, and where it was not concluded, by the employer.) Thus, the Labor Code preserves the principle of equality of two types of working week and the possibility of free choice of any of them. When choosing the type of working week, it is necessary to take into account the interests of the workforce and the population served, the nature of production, working hours and other factors.
In some cases, the specific type of working week is provided for directly by law. For example, a five-day work week with two days off (Saturday and Sunday) is established for employees of ministries, state committees and departments, and local executive committees.
The type and standard of hours of the working week determine the duration of daily work. Since, with a five-day work week, the weekly standard of hours is distributed not over 6, but over 5 days, the duration of daily work (shift) increases accordingly.
Part 2 Art. 124 of the Labor Code applies to cases where, with a five-day working week, the sum of five working days (shifts) per calendar week is less than the weekly norm (for example, less than 40, 35 or 23 hours). In such cases, the resulting non-working is subject to compensation (compensation).
4.3 Flexible working time regime, its components and options
Flexible working time regime is a form of organization of working time in which individual employees or teams of structural divisions of an organization are allowed, within certain limits, to self-regulate the beginning, end and total duration of the working day. In this case, it is required to fully work out the total number of working hours established by law during the accepted accounting period (working day, week, month, etc.).
The flexible working time regime is established by the employer at individual or collective requests in agreement with the trade union, provided that it takes into account the interests of production, does not lead to complications in the work of the organization, does not disrupt the normal activities and rhythm of production, or external relations.
Employees transferred to flexible working hours must be informed no later than one month in advance about the date of transfer to this mode and familiarized with the conditions and specifics of work under this mode. The passes of such employees are marked accordingly or a special insert is issued for the pass to the organization.
When performing work outside the organization (business trip, participation in meetings, conferences, etc.), the flexible working time regime is not applied, and working time is recorded as under the usual regime.
The flexible working time regime can be applied both to a five-day and six-day working week, and to other work modes.
The application of the flexible working time regime does not make changes to the conditions for rationing and remuneration of workers, the procedure for calculating and the amount of additional payments, and does not affect the provision of guarantees, the duration of leave, the calculation of seniority and other labor rights. An entry about flexible working hours is not made in the work book.
For the first time, the flexible working time regime is regulated in detail at the level of a legislative act, which will obviously contribute to its wider application in practice.
The main features of the flexible working time regime: it is a specific form of organizing working time, allowing employees to independently determine their work hours in accordance with their social, family and other personal needs and taking into account the interests of production; The flexible working time regime can be applied everywhere, both with a five-day and six-day working week, and with other work modes (on restrictions on the use of the flexible working time regime - Article 131 of the Labor Code); the flexible working time regime can be used both for individual employees and for teams of structural divisions of the organization (shops, departments, sectors, etc.); the meaning of the flexible working time regime is self-regulation within certain limits of the beginning, end and total duration of the working day; the most important condition for introducing a flexible working time regime is the full completion of the total number of working hours established by law during the accepted accounting period (working day, week, month, etc.). (On the main options for flexible working hours depending on the length of the accounting period - parts 4 and 5 of Article 129 of the Labor Code); to introduce a flexible working time regime, an initiative “from below” is required - individual or collective requests of the employee (workers); the introduction of a flexible working time regime is the right (but not the obligation) of the employer, which he exercises taking into account production interests and capabilities; the flexible working time regime is established by the employer in agreement with the trade union; the application of the flexible working time regime does not entail restrictions on the labor rights of employees, an entry about the flexible working time regime is not made in the work book, etc.
Flexible working hours include:
variable (flexible) time – the time at the beginning and end of the working day (shift), within which the employee has the right to start and finish work at his own discretion;
fixed time – the time of mandatory presence at work for all employees working under flexible working hours in a given division of the enterprise. In terms of duration, this is the main part of the working day;
a meal and rest break that usually divides a fixed amount of time into two approximately equal parts. Its actual duration is not included in working hours;
the duration (type) of the accounting period, which determines the calendar time (month, week, etc.) during which each employee must work the standard working hours established by law.
The duration of fixed time and each part of flexible time is determined by the employer, taking into account the opinions of employees.
The maximum duration of flexible time during a working day should not exceed 10 hours, and for the accounting period the sum of hours of working time should be equal to the standard hours for this period.
Art. 129 of the Labor Code defines in detail the components and main options for flexible working time regimes. All components of flexible working time provided for in clauses 1 – 4 of part 1 of this article are mandatory. They must be present in every case of application of flexible working hours. Moreover, in each specific case, the duration of fixed time and all parts of flexible time is determined by the employer, taking into account the opinion of employees. However, the maximum duration of flexible time during the working day should not exceed 10 hours, and the sum of working hours for the accounting period should be equal to the standard hours for this period.
In parts 4 and 5 of Art. 129 of the Labor Code talks about the main options for flexible working hours depending on the length of the accounting period. In this case, the following accounting periods are established as the main ones: working day, working week and working month. Additional accounting periods (used in individual cases) are provided: working ten days, working quarters and others convenient for the employer and employees. The specific version of the accounting period is determined by the employer, taking into account the opinions of employees.
Conclusion
As can be seen from the above in the presented course work on the topic: “Legal regulation of working time,” in the most general form, working time can be defined as time intended for work activity.
Being a multifaceted category, the term “working time” is used in various fields of knowledge (law, economic theory, sociology, etc.). Labor law is related to working time as a legal phenomenon.
Legal regulation of working time is carried out by a significant number of legal acts: the Constitution (Article 43), the Labor Code (Chapter 10, etc.), other labor legislation, local regulations, employment contracts.
The concept of “working time” is used in current legislation and literature on labor law in three main aspects:
1) as a certain norm (measure) of workers’ labor. The standard working time is the established amount of working time that an employee must work during a calendar week and during a day;
2) as a set time during which the employee, in accordance with labor, collective agreements, internal labor regulations, is obliged to be at the workplace and perform his job duties. A worker also includes time of work performed at the suggestion, order or with the knowledge of the employer in excess of the established working hours (overtime, work on public holidays, holidays and weekends);
3) as actual time worked, during which the employee actually performed his job duties. This time does not always coincide with the established one, it can be either less or more than it: in particular, shortfalls in working hours can be caused by the employee’s illness, absenteeism, overtime - involving him in overtime work, working on weekends, etc. Shortage of working hours due to the fault of the employee (for example, due to being late for work) may lead to the application of disciplinary sanctions and other legal measures against him.
Thus, the legal regulation of working hours is of great importance. During working hours, material and spiritual values are created, i.e. the basis for the well-being of the entire society and its individual members. This time involves each employee working out the work set for him in his own interests, the interests of the employer and society as a whole. In addition, the length of working time also determines the length of rest time that remains for the employee after work and which he can use at his own discretion.
List of sources used
Regulations
1. Constitution of the Republic of Belarus dated March 15, 1994 No. 2875-XII (as amended and supplemented in 1996 and 2004) // National Register of Legal Acts of the Republic of Belarus, 1999. – No. 1. – 1/0;
2. Civil Code of the Republic of Belarus dated December 7, 1998 (as amended and supplemented in 2006) // National Register of Legal Acts of the Republic of Belarus, 2003, No. 1, 2/908;
3. Civil Procedure Code of the Republic of Belarus dated January 11, 1999 (as amended and supplemented in 2006) // National Register of Legal Acts of the Republic of Belarus, 1999 No. 2/13;
4. Housing Code of the Republic of Belarus dated March 22, 1999 No. 248–3 (as amended and supplemented in 2006) // National Register of Legal Acts of the Republic of Belarus, 1999 No. 28;
5. Criminal Code of the Republic of Belarus of July 9, 1999 No. 275-Z (as amended and supplemented in 2006) // National Register of Legal Acts of the Republic of Belarus, 1999, No. 76, 2/50;
6. Criminal Executive Code of the Republic of Belarus of January 11, 2000 No. 365-Z (as amended and supplemented in 2006) // National Register of Legal Acts of the Republic of Belarus, 2000 No. 2/140;
7. Labor Code of the Republic of Belarus dated July 26, 1999 No. 296-Z (as amended and supplemented in 2006) // National Register of Legal Acts of the Republic of Belarus, 1999, – No. 2/70;
8. Law of the Republic of Belarus dated June 15, 2006 No. 125-Z “On employment of the population of the Republic of Belarus” // National Register of Legal Acts of the Republic of Belarus, 2006, No. 94, 2/1222;
9. Law of the Republic of Belarus of April 22, 1992 “On Trade Unions” (as amended in 2000) // National Register of Legal Acts of the Republic of Belarus. 2000. No. 23, 2/146;
10. Law of the Republic of Belarus “On the Prosecutor’s Office of the Republic of Belarus” dated January 29, 1993 // Gazette of the Supreme Council of the Republic of Belarus. 1993. No. 10. 1996. No. 21. Art. 380; No. 23. Art. 427;
11. Law of the Republic of Belarus of June 15, 1993 “On Fire Safety” // Gazette of the National Assembly of the Republic of Belarus. 1993. No. 23. Art. 282; 1996. No. 21. Art. 380; 1997. No. 33. Art. 658;
12. Decree of the President of the Republic of Belarus “On additional measures to improve labor relations, strengthen labor and performance discipline” dated July 26, 1999 No. 29 // National Register of Legal Acts of the Republic of Belarus. 2000. – No.
13. Resolution of the Council of Ministers of the Republic of Belarus dated October 23, 2000 No. 1630 “On approval of the Procedure for the exercise by trade unions of public control over compliance with the legislation of the Republic of Belarus on labor // National Register of Legal Acts of the Republic of Belarus. 2004. No. 1112, 5/5300;
14. Resolution of the Council of Ministers of the Republic of Belarus dated August 10, 2000 No. 1236 “On approval of the Regulations on the implementation of state sanitary supervision in the Republic of Belarus” // National Register of Legal Acts of the Republic of Belarus. 2000. No. 80, 5/3811;
15. Resolution of the Council of Ministers of the Republic of Belarus dated 04/11/1997 “Issues of the Labor Inspection Committee under the Ministry of Labor of the Republic of Belarus” // Collection of decrees, decrees of the President and Government of the Republic of Belarus, 1997 - No. 12;
16. Resolution of the Cabinet of Ministers of the Republic of Belarus dated March 18, 1996 No. 189 “On approval of the Regulations on the State Expertise of Working Conditions” // Collection of Presidential Decrees and Resolutions of the Cabinet of Ministers of the Republic of Belarus. 1996. No. 8. Art. 211;
17. Resolution of the Ministry of Labor of the Republic of Belarus dated April 3, 2000 No. 44 “On approval of the Regulations on the procedure for conducting examination of working conditions” // National Register of Legal Acts of the Republic of Belarus. 2001. – No. 8/6063;
18. Resolution of the Ministry of Labor of the Republic of Belarus “On approval of the Standard Rules of Internal Labor Regulations” dated 04/05/2000 No. 46; // National register of legal acts of the Republic of Belarus. – 2000. – No. 52;
19. Resolution of the Ministry of Labor of the Republic of Belarus “On approval qualification directory“Positions of employees for all industries” dated December 8, 1997 No. 112;
20. Resolution of the Ministry of Statistics and Analysis of the Republic of Belarus dated September 17, 2001 No. 80 “On approval of the Instructions for filling out forms of state statistical reporting on labor” (as amended and supplemented in 2002) // National Register of Legal Acts of the Republic of Belarus, 2001. – No. 94;
21. Resolution of the Ministry of Labor of the Republic of Belarus “On approval of the approximate form of an employment contract” dated December 27, 1999 No. 155 // National Register of Legal Acts of the Republic of Belarus, 2003. – No. 112;
22. Resolutions of the Plenum of the Supreme Court of the Republic of Belarus No. 2 of March 29, 2001 “On some issues of the application of labor legislation by courts” // National Register of Legal Acts of the Republic of Belarus, 2003, No. 112;
Literature
23. Gusov K.N., Tolkunova V.N. Labor law of Russia: Textbook. 2nd ed., additional, corrected. – M.: Yurist, 1997. – 480 p.;
24. Commentary on the Labor Code of the Republic of Belarus / Under general. ed. G.A. Vasilevich. – 3rd ed., revised. and additional – Mn.: Amalfeya, 2005. –1120 p.;
25. Commentary on the Labor Code of the Russian Federation / Rep. ed. Doctor of Law, Professor Yu.P. Orlovsky – M.: “INFRA – M”, 2002. – 959 p.;
26. Labor Law: Textbook / Ed. O.V. Smirnova. M., 1996. – 360 pp.;
27. Labor Law: Textbook / Ed. IN AND. Semenkova. 2nd ed., revised. and additional – Mn.: Amalfeya, 2002. – 672 p.;
28. Labor Law of Russia: Textbook / Ed. S.P. Mavrina, E.B. Khokhlova. – M.: Yurist, 2002. – 560 p.
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Through centralized regulation, it is currently established, firstly, an extensive measure of labor - the duration of working hours, as well as basic provisions on the order and methods of its distribution within a day, week or other calendar period, on the prohibition as a general rule of work outside working hours and the procedure for engaging in work in exceptional cases beyond the established working hours, on weekends and holidays, as well as issues that are resolved by local regulations and by agreement between the employee and the employer. In addition, the specifics of regulating the working time of workers in certain sectors of the economy are also established in a centralized manner, the production specifications of which require a special procedure for the implementation of general standards: various types transport, communications, etc. For example, Art.
Topic 2.2. legal regulation of working time and rest time
Code regulating short working hours. In Art. 92 Labor Code lists categories of workers for whom the normal working hours are: 24 hours a week - for workers under 16 years of age; 36 hours per week - for workers aged 16 to 18 years; 35 hours per week - for employees who are disabled people of groups I and II; 36 hours or less - for workers engaged in work with harmful and (or) dangerous working conditions. Pending the adoption of the relevant regulatory legal act of the Government of the Russian Federation on the territory of the Russian Federation in accordance with Art.
423 of the Labor Code applies to the List of industries, workshops, professions and positions with hazardous working conditions, work in which gives the right to reduced working hours, and which is approved in the manner established by law.
Legal regulation of working time and rest time
Info
When carrying out work necessary for the defense of the country, to prevent an accident or eliminate the consequences of an accident or natural disaster; 2. When carrying out socially necessary work on water supply, gas supply, heating, etc., - to eliminate unforeseen circumstances; 3. If it is necessary to complete the work that has begun, which, due to an unforeseen delay, could not be completed during the normal number of working hours, if failure to complete this work may result in damage or destruction of the employer’s property, state or municipal property, or create a threat to the life and health of people; 4.
When carrying out temporary work on the repair and restoration of mechanisms or structures, if their malfunction may cause the cessation of work for a significant number of workers; 5. To continue work if the replacement employee fails to show up.
The concept and significance of legal regulation of working time
Attention
The working time during which an employee must perform his duties does not always coincide with the time actually worked. Actual is the time actually spent by each individual employee, which determines his specific participation in the labor process. It can coincide with working hours or with its norm, or it can be either less or more than it.
In accordance with the actual time worked, wages are paid and provided additional holidays due to harmful conditions at work, long working hours, etc. Shortcomings during the working day may entail certain legal consequences - the imposition of penalties and other sanctions if the employee is at fault for this. Working time is measured in the same units as time in general - hours, days, etc.
The law usually uses such a meter as the working day and working week.
Legal regulation of working time (page 1 of 4)
In practice, two types of workweek are used: a five-day workweek with two days off and a six-day week with one day off. The main task that needs to be solved when regulating working time is establishing the duration of work and working time standards. The state sets only the maximum working hours.
Other issues related to working time (reduction, shift schedules, working hours) are resolved by employers independently by including relevant norms in collective agreements, internal labor regulations and other local regulations of the organization. Thus, Article 41 of the Labor Code provides that the collective agreement may include mutual obligations of employees and the employer, in particular on issues of working time.
Work time
Standardization of working time means establishing a temporary criterion for the measure of labor. At the same time, by limiting the maximum limit of time spent on work, beyond this limit it frees up time for rest, restoration of working capacity, family responsibilities, on-the-job training, sports, etc. IN Soviet period the standard of working time performed two functions: firstly, it determined the obligatory measure of labor that every citizen of a socialist society must perform, and secondly, standardization was carried out in order to establish the maximum permissible duration labor.
Legal regulation of rest time (using the example of sausage-20 LLC)
TC, there are special regulations relating to each category separately. Thus, teaching staff, in accordance with the procedure established by the legislation of the Russian Federation, enjoy the right to a standardized six-hour working day and a shortened working week. Working hours medical workers depends on the professional functions they perform and the institution in which they work.
In particular, doctors in clinics who receive patients, dentists and prosthodontists, and paramedics are allowed a working day of up to 5.5 hours. Reducing working hours for workers exposed to the risk of contracting the human immunodeficiency virus while performing their duties official duties, up to 36 hours a week is provided for by the Decree of the Government of the Russian Federation of April 3, 1996.
Legal regulation of working hours
Legal regulation of working time establishes the types, norms, duration and mode of working time, as well as the procedure for working in excess of the established working time. The importance of working time regulation. The importance of regulating working time is great; it is one of the legal guarantees of the right of citizens to rest, therefore the rules on working time are inextricably linked with the rules on rest time. Working time as a working condition largely determines the standard of living of workers. The amount of free time used for recreation, satisfaction of cultural and other needs of people depends on its duration. According to Art. 7 of the Constitution of the Russian Federation, “The Russian Federation is a social state, the policy of which is aimed at creating conditions that ensure a decent life and free development of people. ..
Legal regulation of working time briefly
Working time is the time during which the employee, in accordance with the rules internal regulations, under an employment contract, he must fulfill his labor duties, as well as some other periods, for example, intra-shift breaks (for heating when working outside, for feeding a child under 1.5 years of age), which labor legislation classifies as working time (Article 91 of the Code ). Working time, on the one hand, fixes the measure of labor, and on the other hand, it provides the employee with free time to rest and restore expended energy. The fulfillment of this task prohibits, as a general rule, an increase in working hours compared to the established norm. This is possible only in exceptional cases provided for by law.
Legal regulation of working time summary
Regulatory acts of the modern period (current) 5. Universal Declaration of Human Rights of December 1, 1948 // Russian newspaper 1995 - April 5 6. International Covenant on Economic, Social and Cultural Rights 1966 // Bulletin of the Supreme Court of the Russian Federation 1994 - No. 12 7. Constitution of the Russian Federation 1993 // Rossiyskaya Gazeta 1993. - December 2 8. Labor Code of the Russian Federation // Social Protection of the Russian Federation 2002. - No. 1. Art. 3 9.Civil Procedure Code of the Russian Federation // Rossiyskaya Gazeta 2002.- 20.11 10.Federal Law of June 3, 2006 No. 90-FZ “On Amendments and Additions to the Labor Code of the Russian Federation” 11.Law of the Russian Federation “On the Status of Judges” in the Russian Federation // Ved. RF 1992. - No. 30. Art. 1792. (as amended by the Law of the Russian Federation of December 15, 2001 N 169-FZ) 12. Law of the Russian Federation “On the social protection of citizens exposed to radiation as a result of the disaster at the Chernobyl nuclear power plant” dated 1.
The following are not allowed to work at night: pregnant women, disabled people, minor workers; women with children under three years of age, workers caring for sick family members, single mothers, fathers (guardians) raising a child under five years of age are allowed to work at night only with their written consent. Work outside normal working hours can be carried out both at the initiative of the employee (part-time work) and at the initiative of the employer (overtime). Part-time work can be both internal and external.
Part-time work cannot exceed four hours a day and 16 hours a week. Involvement in overtime work is carried out with the written consent of the employee in the following cases: 1.
Legal regulation of working time, briefly the most important thing
The legal basis for legislation on working hours is Article 37 of the Constitution of the Russian Federation, according to which a person working under an employment contract is guaranteed the duration of working hours established by federal law. In accordance with Article 91 of the Labor Code of the Russian Federation, working time is the time during which an employee, in accordance with the internal labor regulations of the organization and the terms of the employment contract, must perform labor duties, as well as other periods of time that, in accordance with laws and other legal acts refer to working time. Working hours are regulated by both general and special legal norms. Some apply to all workers, others (special, special), supplementing the general norms, are intended to take into account the specifics of the organization of labor and production of certain categories of workers, types of labor activity, gender and age characteristics of workers, etc.
480 rub. | 150 UAH | $7.5 ", MOUSEOFF, FGCOLOR, "#FFFFCC",BGCOLOR, "#393939");" onMouseOut="return nd();"> Dissertation - 480 RUR, delivery 10 minutes, around the clock, seven days a week and holidays
Kozlov Vladimir Sergeevich. Legal regulation of working time in Russia and foreign countries: dissertation... Candidate of Legal Sciences: 12.00.05 / Kozlov Vladimir Sergeevich; [Place of protection: Moscow. state legal academic.] - Moscow, 2007. - 168 p.: ill. RSL OD, 61 07-12/2460
Introduction
Chapter 1. The institution of working time in the legal system of the Russian Federation and foreign countries using the example of Great Britain and France 12
1. The concept of working time, its meaning on modern stage development of labor law 12
2. Sources and methods of regulating working time 50
Chapter 2. Types and modes of working time: selected problems of Russian labor law and foreign legal systems (using the example of Great Britain and France) 85
1. Historical and comparative legal analysis legal regulation normal, reduced working hours and part-time work 85
2. Current problems of legal regulation of work outside normal working hours 139
Conclusion 150
Bibliographic list of normative legal acts and used specialized literature 161
Introduction to the work
Relevance of the research topic. In the complex set of issues related to the study of the peculiarities of the legal regulation of labor in the conditions of economic development of Russia, the problem of legal regulation of relations related to working time occupies an important place. It is especially relevant at the present time, when there is rapid growth of the Russian economy, the development of market relations, and the globalization of many sectors of the Russian economy. The legislator faces a global task - to create a legal framework capable of ensuring such development in the social and labor sense and protecting the interests of the parties to labor relations.
The path of development of Russian labor legislation on working time is possible taking into account the positive experience of developed countries, in the legislation and enforcement of which many of the problems and tasks facing the Russian legislator at the present time have been found. In such conditions, the comparative legal research method acquires a special role and a number of modern scientists see it as the basis for the harmonization and unification of legislation necessary for the development of international relations and cooperation 1 .
Working time, one of the central institutions of labor law, is a set of legal norms established to ensure workers the right to rest and limit working hours, as well as to consolidate the measure of labor. Due to a combination of a number of economic, political, social and cultural factors, it is of utmost importance at the present stage.
The choice of countries such as the UK and France as the main foreign countries for working time research is due to the fact that the UK and France are two economically developed countries
1 See: Saidov A.X. Globalization and comparative law // Moscow legal forum “Globalization, state, law, XXI century”: Based on materials from speeches. M., 2004. P.127-128; Tikhomirov Yu.A. Internationalization of national law//Ibid. pp. 167-169.
Europe are members of the European Union, a supranational entity that has, to a certain extent, unified labor legislation, providing a number of social and labor rights and guarantees to employees of European Union member countries. Despite this unification of labor legislation within the framework of current EU labor standards, the UK and France have significantly different models of legal regulation of social relations related to working time, different legal systems, as well as legal differences in regulatory formulations - for example, in France has a 35-hour work week, while the UK has a 48-hour work week. Often, the polar provisions of the labor law of the countries chosen as objects of study make it possible to better reflect the trends in the development of labor legislation, including in the field of working time in European countries that have different traditions and features of the legal system, as well as to develop various recommendations for the relevant legal provisions of the labor legislation of the Russian Federation. The dissertation also examines certain issues related to the regulation of working time in Germany, Finland, Sweden, Estonia, Japan, etc.
In the new political and socio-economic realities in the Russian Federation and after the adoption of the Labor Code of the Russian Federation, as well as in the context of the ongoing reform of Russian labor legislation, the comparative legal characteristics of working time in Russia and foreign countries were not the subject of dissertation research, which also indicates the relevance of this research.
Purpose and objectives of the study.
The main goal of the dissertation work is a comprehensive study of working time in Russia based on comparative law and analytical research on the positive experience of countries Western Europe on
example of Great Britain and France to identify features and inconsistencies that require elimination in Russian labor legislation, determine the feasibility of using foreign positive experience of these countries and develop possible proposals for improving Russian legislation on working time, as well as to fill existing gaps in knowledge of foreign labor law in the field of working time.
Within the framework of the dissertation research, it is not possible to cover the entire complex of relations associated with the institution of working time due to the multidimensionality and volume of these relations in the Russian Federation and in the legislation of foreign countries. This study analyzes the most pressing problems related to working time: the concept of working time, types of working time, limitation of working time, sources of regulation of working time, as well as individual problems associated with overtime work and irregular working hours. These issues are mainly considered on the basis of the legislation of Great Britain and France.
To achieve this goal, it is necessary to solve the following tasks:
Analyze the concept and features of working time,
determine its significance at the present stage of development of labor law
Russia, Great Britain and France;
on the basis of a comprehensive study of working time as one of the most important institutions of labor law, to identify the main trends in its development in these countries;
highlight and explore problems associated with the development of legal provisions on working time in Russia, Great Britain and France, analyze the historical part of the problems under consideration;
Based on comparative legal research methods, identify
the scope of the concept of working time and characterize the various approaches
to its definition and find the optimal definition of the phenomenon under consideration, taking into account historical and international legal trends;
Identify and consider the features of types of working time and
application of separate working hours in the specified countries and
certain problematic issues related to violation of workers' rights;
Conduct a comparative analysis of labor legislation in the area
working hours in Russia, Great Britain and France, and also summarize
scientific research and experience of these countries, develop proposals,
aimed at improving and further developing the Russian
working time legislation;
Methodological basis the dissertation is presented by such general scientific methods as historical, systemic, dialectical, logical, and special research methods: formal legal, comparative legal and other methods based on the principles of: objectivity, social approach, comprehensiveness.
Theoretical basis of the study compiled the works of domestic specialists in the field general theory law, comparative law and the science of labor law, as well as fundamental works, practical developments and analytical monographs of foreign scientists.
The problems of the scientific and practical nature of working time received close attention in the works of Soviet and Russian scientists N. G. Aleksandrov, M. V. Belov, V. S. Benediktov, I. V. Geits, L. Ya. Ginzburg, V. Glazyrin. V., Gusova K.N., Ivankina T.V., Kiseleva I.Ya., Kondratieva E.V., Kurennogo A.M., Livshitsa R.Z., Leviant F.M., Lushnikova A.M., Lushnikova M.V. , Mavrina S.P., Muksinova L.A., Orlovsky Yu.P., Ostrovsky L.Ya., Pashkov A.S., Pasherstnik A.E., Protsevsky A.I., Prudensky G.A., Snigireva I. O., Syrovatskaya L.A., Tolkunova V.N., Khokhlova E. B., Khokhryakova O. S., Chernova I. V., Shebanova A.I. and many other scientists.
In addition, the works of foreign scientists in the field of comparative law, as well as French and English labor scientists were used: Bosch G., Jacobs Jerry A., Girson K., Pencier F.-J., Figart D., Golden L., Syupiota A., De Gruta C., Boizara P., Cartrona D., Gollaka M., Lokiek P., et al.
Empirical base research constitute the Constitution of the Russian Federation, Conventions and recommendations of the ILO, acts of the Council of Europe, the Labor Code of the Russian Federation and other federal laws, decrees of the President of the Russian Federation and other regulatory legal acts containing labor law norms, decisions of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation, the Constitution of France, the Labor Code of France , UK working time laws, as well as the jurisprudence of these countries.
Object and subject of research. The object of the dissertation research is social relations emerging in the field of legal regulation of working time.
The subject of the study is the system of legal norms that establish relations in the field of working time. Particular attention is paid to international standards on working time, as well as the rules of foreign law regulating working time.
Scientific novelty and provisions submitted for defense. Scientific novelty is determined by the fact that this is the first comprehensive study of working time under the legislation of Russia and foreign countries, taking into account the experience of Great Britain and France as members of the European Union and the existing system of Russian labor law, on the basis of which proposals have been developed and formulated aimed at improving Russian labor legislation time and conclusions about the inappropriateness of convergence of legislation on working time in the various aspects considered.
The following are submitted for defense: theoretical conclusions and practical suggestions:
1. As a result of a comparative legal study of the issues of the dissertation topic, a significant similarity in the rules on working time in Russia, Great Britain and France was revealed, due to the fact that they express generally accepted principles in the field of labor relations and implement the protective function of this institution of labor law. The features inherent in this institution in the legislation of the countries under consideration are sometimes of a polar nature, however, in the aggregate they are not a significant obstacle to the creation of general theoretical and practical recommendations for the legislation of the Russian Federation on working time in the process of reforming Russian labor legislation on working time.
2. In the course of considering the institution of working time in history
retrospectively, the change in the scope of the concept of working time is analyzed,
a tendency is revealed from imperativeness to increasingly dispositivity
provisions that form the basis of the institute, further
development of this institute in the Russian Federation. Done
general theoretical conclusion about the similarity of the concept of working time in Soviet
period with signs of legal construction. Changes are analyzed
in the method of regulating working time, the presence of imperative and
centralized method of regulation and transition to imperative
elements of the dispositive in connection with the transition of the Russian Federation to
market economy and the rejection of the universal obligation to work. Done
conclusion about the need to increase flexibility in the field of legal regulation
labor. Specific recommendations on ways to achieve
balanced flexibilization of working time.
3. Based on the results of consideration of legislative structures, definitions
working hours in Soviet Russia, modern Russia and in
legislation of developed foreign countries, using the example of Great Britain and
France is considering the feasibility of having a legal
determination of working time in the standards of a codified source
labor law - the Labor Code of the Russian Federation and it is concluded that such a definition is necessary. Applying methods of comparative study of the scope of the concepts of working time and the specific time periods that make it up, in accordance with the relevant provisions of the legislation of Russia, Great Britain and France, it is noted that foreign countries are characterized by the legislative establishment of a significant number of such periods and various situations related to working time, including narrowly applicable periods, which is especially typical for France. This legislative model can find application in Russia and it would be advisable to consolidate it in Art. 91 Labor Code of the Russian Federation. A definition of working time is given and it is proposed to amend Art. 91 of the Labor Code of the Russian Federation, taking into account the legal, historical, semantic and international legal components of working time.
When analyzing the sources of legal regulation of working time, the growing diversification, decentralization and individualization of working time in the West is considered and each of these concepts is revealed in relation to foreign and Russian realities.
The considered system of sources of regulation of working time in these foreign countries and the corresponding hierarchy is a reflection of the legal traditions within the framework of the legal systems under consideration. It is concluded that the system of sources for regulating working time in Russia, taking into account the peculiarities of the Russian legal system, is optimal and does not need to be changed. Recommendations were made to strengthen collective bargaining regulation of working hours with certain guarantees and exceptions.
Based on a desk review of existing conventions and recommendations International Organization Labor concluded that ILO Convention No. 1 “On the limitation of working time in industrial undertakings to eight hours a day and forty-eight hours a week” (hereinafter referred to as “Convention No. 1”) and ILO Convention No. 30 “On Regulation
working hours in trade and institutions" (hereinafter referred to as "Convention No. 30") are of little relevance and impractical for ratification by the Russian Federation. The importance and relevance for Russia of ILO Convention No. 175 “On part-time work”, as well as ILO Recommendation No. 182 “On part-time work”, was determined, and it was recommended to include the corresponding standards in the labor legislation of the Russian Federation. It should be noted that ILO Convention No. 175 is included in the list of Conventions in Appendix No. 3 to the General Agreement for 2005 - 2007.
7. The working time system in the UK and, in
in particular, the system of individual agreements on exceptions in
application of labor law norms on limiting working hours,
is inappropriate for use in the Russian Federation in relations of all
categories of workers, at the same time, the possibility of including
similar standards applied to certain categories of workers.
The dissertation examines the legal regulation of working time in France and, in particular, systems new to Russian legislation: flexibility in the distribution of working hours per year, modulation of working time, suspension of working time, “individual working time”, labor contracts with zero working hours. It is advisable to adopt in Russia the concept of “individual working time”, which makes it possible to split the compulsory working hours of workers into various intervals of varying durations during one predetermined cycle, or making it possible to vary working hours throughout the year, and consider what changes in legislation are appropriate.
A number of specific proposals have been made aimed at improving the current labor legislation of the Russian Federation, taking into account progressive European standards and standards of foreign countries, summarized in the conclusion of the work.
Theoretical And practical significance of the study
Scientific conclusions obtained as a result of the dissertation research And proposals can be used: in the process of improving legislation, in particular with the subsequent updating of labor legislation; in the process of law enforcement activities; V scientific research labor law issues; as well as in the teaching process training course“Labor Law of Russia”, relevant special courses in comparative law.
Approbation of research results. The dissertation was completed at the Department of Labor Law and Social Security Law of the Moscow State Law Academy, where it was discussed and reviewed. The main provisions and conclusions of the dissertation are presented in three published works.
Work structure determined by the purpose and objectives of the study, the need for a logical presentation of the material. The dissertation consists of an introduction, two chapters combining four paragraphs, a conclusion and a list of normative legal acts and used specialized literature.
The concept of working time, its significance at the present stage of development of labor law
Working time, one of the central institutions of labor law, is a set of legal norms established to ensure workers the right to rest and limit working hours, as well as to consolidate the measure of labor. Due to a combination of a number of economic, political, social and cultural factors, it is of utmost importance at the present stage.
Working hours, duration of working hours, as well as ways to reduce working hours, daily working hours, normal working hours per week, month or year, part-time and reduced working hours, overtime and irregular working hours are the subject of discussion at many forums, round tables and in the press. In many cases, the situation is analyzed from the perspective of workers and the priority of protecting their rights, many based on the wishes of employers to give greater flexibility to the production process. These are two opposing opinions and the legislator must develop a model that combines the interests of both sides, which is really not easy. Evidence can be provided by the numerous attempts in different countries to adopt various ILO Working Time Conventions, which for one reason or another were not successful. Thus, the Russian Federation has ratified 61 ILO conventions, and at the same time is only considering the possibility of preparing for ratification of the ILO Part-Time Work Convention, 1994 (N 175) as part of measures to consider the possibility of ratifying a number of ILO conventions. It appears that this problem has complex causes and consequences, and is accompanied by a complex set of socio-economic issues directly related to working time. Even if we decide on the issue of reducing working hours and effective control over working hours in terms of taking into account only the interests of workers, the interests of workers themselves do not seem entirely clear - on the one hand, people want to work less, on the other, to earn more; on the one hand, to spend more time with family and take advantage of leisure time, on the other hand, to achieve social status and privileges, which currently in Russian society implies assigning significant amounts of work to the relevant employee. A middle ground has not been found, especially since on a national scale it is necessary to assess the problem, taking into account the interests of not only workers, but also employers, which, in turn, causes an additional tangle of problems - problems of employment and employment (as is known, ILO Convention No. 47 was adopted precisely in order to combat unemployment by reducing working hours), problems of wages, ensuring gender equality, and many other problems, including problems of traffic jams. Thus, the legislative component of problems related to working time is complex and requires detailed analysis and elaboration.
Numerous press publications also lead to interesting conclusions. “In the near future, the main causes of death in Russia will be heart failure, stroke and heart attack caused by overwork at work. Already now, according to the Chief State Sanitary Doctor Gennady Onishchenko, young people die at the machine or at the computer 1.5 times more often than 10 years ago. Amid talk of low labor productivity, Russia has perhaps the longest working day in the world. Workaholism has become a real epidemic. People are placed in conditions that they simply cannot refuse, and instead of the 40 hours a week prescribed by the Labor Code, they have to work all 55 - 10-12 hours a day. In order to meet with their family more often, many, if the opportunity arises, are ready to sacrifice large earnings and change jobs.” 2. According to Rossiyskaya Gazeta, in 2005, state labor inspectorates carried out 4,869 thematic inspections on issues of working time and rest time, as a result of which 72 were identified. 935 violations, including the unreasonable involvement of workers in overtime work and work on weekends and non-working holidays, lack of accounting and excess of normal working hours and other violations of labor legislation on working time and rest time. At the same time, there are very few court cases regarding overtime processing in Russian practice, despite a significant number of provisions of the Labor Code that ensure the rights of workers in the cases considered. This is primarily due to the fact that this problem has a certain scope and it has not only a legislative dimension, but is also a projection of the Russian legal culture, where workers are ready to violate labor laws and renounce a number of their rights (for example, signing a labor contract). contracts with obviously lower wages and receiving payment in an “envelope”) and do not want to conflict with the employer, and employers replace legality with expediency and believe that the order general director company has greater legal force compared to the Labor Code.
It is also extremely interesting to note a number of cultural factors characteristic of working time in Russia today. The wildly popular movement of 14-hour-a-day “yuppies” among young professionals has serious economic implications for the entire country. For young people involved in the values of this subculture, working a lot and very hard is fashionable; it is associated with obtaining certain social benefits and with rapid career growth. However, this leads to an imbalance in working time and rest time throughout the country, which in turn leads to serious consequences for the health of the nation.
Thus, the issues of working time and rest time seem extremely relevant today. At the same time, we believe that the solutions to this complex set of issues lie precisely in the sphere of regulation of working time, and not rest time, despite the fact that, as shown below, these two institutions of labor law are closely related to each other. We believe that the regulation of relations that form the subject of the institution of working time allows us to answer the question: “What to do?” and solve the problem, and regulation of rest time - answer questions derived from the above problems.
In order to understand complex solutions to a set of problems related to working time, it is advisable to consider the norms on working time in the Russian Federation, analyze the historical retrospective of the institute and the mechanisms for forming the norms of the institute, consider the corresponding norms of foreign countries, taking into account the characteristics of the entire legal system of these countries, as well as scientific concepts of foreign scientists, as well as analyze the implementation of the mechanisms embedded in these norms.
Sources and methods of regulating working time
According to traditional general theoretical concepts68, the source of law is the documentary ways of expressing and consolidating the norms of law emanating from the state or officially recognized by it, giving them legal, generally binding meaning. This is the form through which legal norms receive their legal force.
However, before considering various shapes expression and consolidation of legal norms, the following should be noted. Emphasizing the importance of legal regulation of working time and considering the need for its comprehensive improvement, it should be borne in mind that working time is regulated not only by legal norms, including norms of local sources. Subject to legal regulation in modern conditions not the entire time during which a person is engaged in labor, but only the time of labor that constitutes the period of work as an employee. Legal regulation of the time of any labor is inappropriate both from an economic point of view and from the point of view of legal theory. It would mean, in particular, the regulation of work time for personal plot, amateur labor (for example, painting), study time and sports due to the fact that, in a broad sense, all the time spent on labor during which material and cultural values are created is considered working time. This is the reason for the differences in the sociological, economic and legal interpretation of the sphere of regulation of working time, which is rightly drawn attention to in the literature. At the same time, unjustified legalization public life It would be a statement that the working time of workers is regulated only by law. Even the most perfect rules of law and the best way well-thought-out organizational forms of their implementation cannot themselves provide the effect necessary for society. Everyday practical activities related to the use of workers’ working time develop not only on the basis of legal regulations, but also under the influence of other factors. Working hours are regulated in one way or another by various social moral norms, norms of social organization and technical norms operating in society, which together influence people's behavior.
In a general assessment of the role of legal norms on working time in the system of other social norms on labor time, it is appropriate to note that in the general complex of working time regulations, legal regulation plays a coordinating role. The scope of its action is not unlimited, which is due to the specifics of the law. The latter, as is known, is a typical scale of behavior, but not all relationships regarding the use of working time require typification objectified by federal norms of law. According to the classical definition,70 a rule of law, including that regulating working time, is a rule of behavior established or sanctioned by the state, generally binding within the scope of its action, ensured by its coercive force and reflected in the source of law. Meanwhile, forcing people to behave in a certain way regarding the use of working time is not always justified or useful. In the context of the emergence of a market economy, in a number of cases there is a need to reduce the imperativeness of legal regulation of working time by expanding the scope of advisory norms, narrowing the range of issues subject to regulation at the legislative level and the use of mechanisms other than the legal one for regulating the behavior of workers and the corresponding relations in the sphere of working time. There are also objective limits of legal regulation. According to the classical concept of the mechanism of legal regulation, law achieves its goals and really regulates social relations only to the extent that the behavior of people required by the rules of law is objectively possible and meets mature economic and political conditions. This general theoretical position is of great scientific and practical importance in relation to modern realities, since it helps to understand the specifics of the legal impact on the use of working time at each individual segment of the life of society. Legislation on working time is not subject to consideration outside of its conditionality by the changing needs of society for work at a given level of development of the country. It is also important because it aims to improve the normative basis of legal regulation in accordance with the new progressive socio-economic needs of society at this stage of development.
At the same time, the very structure of legal regulation around the world has undergone significant changes. According to foreign scientists, “the social organization of time, which served to synchronize work and rest time in the 20th century, is gradually being destroyed. Working time becomes more differentiated and varied due to economic, technical and cultural influences.” In foreign countries, this is caused by such “supply factors” as an increase in the proportion of women among workers (especially women with children), changes in the workforce and lifestyle, and such “demand factors”73 as digital technology, global integration and competition, round-the-clock provision services. It is these trends, which have led to the increasing diversification, decentralization and individualization of working time within legal frameworks throughout the world, that must be taken into account when analyzing the sources of working time regulation.
Due to the fact that for this study, countries with different legal systems were selected as the main objects of study, it is advisable to briefly note the general features of the Romano-Germanic and Anglo-Saxon legal systems that influence the methods and sources of regulation of working time.
Historical and comparative legal analysis of the legal regulation of normal, reduced working hours and part-time work
The question of legal limitation of the working day was first raised at the end of the 18th century in Great Britain. According to V. Kaskel111, the formation of labor law began from this period. The British developed a model of legal regulation of working hours based on three categories of workers: minors, teenagers and women, adult men. This model has been adopted by many countries, including Russia.
As M.V. Lushnikova and A.M. Lushnikov112 rightly note, initially the question arose about limiting the working day for minors. It was they who were most detrimentally affected by overwork, the consequences of unsanitary conditions and industrial injuries. In 1802, on the initiative of R. Peel, a law on the health and morality of students was adopted in England, which became the first factory law. According to the 1802 law, the working day for apprentices in wool and cotton mills was limited to twelve hours, and night work was prohibited. However, this law had almost no practical significance, and in 1819 it was adopted new law, which for the first time determined the age limits of the category of children protected by law from 9 to 16 years. Finally, in 1833, children were legally divided into two groups: from 9 to 13 years old and from 13 to 18 years old. For the first group, the working day was limited to 8 hours a day and 48 hours a week, and for the second - 12 hours a day. Night work was prohibited for both groups. But this law applied only to weaving factories and did not affect other types of production. Studies have shown that children worked underground for 12-14 hours a day. Only in 1842 was it prohibited to work in underground work for children under 10 years of age and women, and a little later the work of boys from 10 to 12 years of age was limited. Note that for the 60s of the 19th century, age criteria in different industries in order to determine the length of the working day were different. If in the textile industry the working day of children was already limited to 6.5 hours in 1844, then in other industries this happened much later. The 1878 Act finally brought all English factory laws into one, and at the beginning of the 20th century, for children aged 12-14 years, an eight-hour working day was established in textile factories and a six-and-a-half hour working day in non-textile factories. In this case, all hours had to be worked either before or after the lunch break, and the rest of the time had to be allocated to attending school. In exceptional cases, but the next day they should have been given a day off. Night work from eight o'clock in the evening to six o'clock in the morning was prohibited for them. And the total number of working hours in two weeks should have been half that of teenagers and women113.
Other states have followed England in limiting the working day of minors. In France, since 1841, the working day of children from 8 to 12 years old was limited to 8 hours, and from 12 to 16 years old - 12 hours. In addition, minors were prohibited from working from 9 pm to 5 am. An 1851 law limited the work of children under 14 to ten hours a day. The 1892 law extended this provision to persons under 16 years of age, and then up to 18 years of age. In the United States, in almost all states, an eight-hour working day was established for persons under 18 years of age by the beginning of the 20th century. In Germany, during this period, persons under 14 years of age had no more than a six-hour working day. Thus, in most Western countries at the beginning of the 20th century, the category of minors represented persons under 14-18 years of age. A reduced working day of 6-8 hours was established for them, night work was prohibited, and a mandatory break was established no later than 4 hours of continuous work.
The situation with the rationing of working time for adolescents and women was somewhat different. For the first time in England, the 1833 Act limited the working day of persons 13-18 years old to 12 hours. But the law on a ten-hour working day for teenagers and women, adopted in England in 1847, was of landmark significance. For persons under 18 years of age, work must not exceed ten hours per day and 58 hours per week. The same applied to women over 18 years of age. This act laid the foundation for the institution of normal working hours: normal working hours and a normal working week. Deviation from them was allowed only in the direction of decrease, but not in the direction of increase. It is in this sense that this category was understood in theory and practice throughout the 19th century and in the first quarter of the 20th century. B. Webb and S. Webb wrote about it this way: “a normal working day is a uniform maximum working time for all workers in a known industry114.”
The English law of 1850 for teenagers and women established a mandatory break from work of at least 1.5 hours, and night work from 18 to 5 p.m. general rules were prohibited. At the same time, overtime work, permitted as an exception in extreme circumstances, was practiced on a large scale. Initially, the factory inspectorate only demanded increased payment for them, which served as a kind of fine and an obstacle to their widespread use. Only in 1878 was clear legal regulation of overtime work carried out. According to the laws of 1895 and 1901, overtime work for minors and women was allowed only under the supervision of a factory inspectorate with increased pay and within certain limits. Thus, overtime for teenagers could not exceed half an hour, and for women - two hours a day. As a general rule, engagement with them should not have been more than three days a week and more than thirty days a year.
In France, a ten-hour working day was established in 1905 for teenagers and women. In Germany, ten o'clock for teenagers and eleven o'clock for women. Thus, the working hours of adolescents and women in most Western countries were either equal to or reduced compared to adult men. But for them, as a rule, it was forbidden night work, and the involvement in overtime work was regulated by law and controlled by the factory inspection.
Regulating the working hours of adult men has encountered many more obstacles. Most often, the following objections were raised against rationing the working day: the state does not have the right to do this, limiting the will of the parties to a personal employment agreement; such rationing is not beneficial to workers and limits their ability to earn money; Such a restriction is harmful to industry and undermines the competitiveness of the economy. In retrospect, all these objections can be considered unfounded. Unless, of course, the reduction in working time is accompanied by a proportional reduction in wages and does not lead to an increase in labor productivity. At the same time, practically no one denied the possibility of reducing the working hours for certain professions. Thus, a ten-hour working day was introduced for London printers already in 1810. According to established custom, builders had a ten-hour working day. Individual entrepreneurs, on their own initiative, could set the maximum working day.
Current problems of legal regulation of work outside normal working hours
It seems appropriate to consider the legal regulation of work outside the established working hours in the sense given to this subinstitution by the Labor Code of the Russian Federation in its current edition, as amended by the Federal Law of June 30, 2006 No. 90-FZ (hereinafter referred to as the Law of June 30, 2006 ). According to the provisions of Article 97, the employer has the right, in the manner established by the Labor Code, to involve an employee in work beyond the working hours established for of this employee in accordance with the Labor Code, other federal laws and other regulatory legal acts of the Russian Federation, collective agreements, agreements, local regulations, labor contracts: for overtime work (Article 99 of the Labor Code); if the employee works on irregular working hours (Article 101 of the Labor Code). Such changes to the Labor Code combined rules from various chapters of the Labor Code - provisions relating to work outside normal working hours and to working hours.
Most current problems issues related to work outside the established working hours in Russia and abroad are issues related to overtime work and irregular working hours.
The Labor Code of 1922 established only a limit on daily working hours. In the Labor Code of 1922, a new institution appeared - a prototype of the future regime of irregular working hours. The CNT, by agreement with the All-Union Central Council of Trade Unions, was given the right to establish categories of responsible political, professional and Soviet workers, whose work is not limited by the time established by law. As noted in the literature154, it was a tribute revolutionary era , when for the responsible workers of the cohort of professional revolutionaries it was taken for granted that normalization of working hours did not make sense for them. However, in practice, the provisions of Article 94 of the Code received a broad interpretation and were extended to other highly qualified workers receiving personal salaries. Later, this practice was legalized by the Decree of the People's Commissariat of the USSR dated February 13, 1928 No. 106 “On workers with irregular working hours.” This resolution allows, in a collective agreement and locally, to introduce irregular working hours for certain categories of workers. Lists of professions, positions and jobs for which the use of irregular working hours is allowed were developed by the relevant trade union and economic body, subsequently by line ministries and committees, and were included in collective agreements. This regulatory act remained in force until the 2001 Labor Code of the Russian Federation came into force. As K.M. wrote Varshavsky, “the 1922 code allowed for the extension of the eight-hour working day not only in relation to the specified categories of responsible workers (Article 94), but also in relation to agricultural, repair workers, as well as persons working in the domestic industry (Article 97)”156. The rule prohibiting overtime work was retained. Such work was allowed only according to a closed list of exceptional cases. K.M. Varshavsky classified these exceptional cases of overtime work into three groups: 1) in the interests of public (in the performance of work necessary for the defense of the country, to prevent a natural disaster, in the performance of socially necessary work on water supply, etc. and etc.), 2) in the interests of the worker when carrying out repair work, restoration of mechanisms and structures in cases where the breakdown of such causes the cessation of work for a significant number of workers, 3) in the interests of the enterprise, if necessary, to complete the work if its cessation may result in damage to materials and machines. K. M. Varshavsky, commenting on the provisions of the code, raised the question of the employer’s right to involve an employee in overtime work without his consent. He gave a negative answer to it, believing that, within the meaning of the code, a worker, according to general rules, cannot be recognized as obligated to perform overtime work. But he noted that in practice, collective agreements often provide for the obligation of workers to work overtime. Trade union practice, as noted by K. M. Varshavsky, has taken the path of obliging employees to perform overtime work. Thus, the punishment report card developed by the All-Russian Central Council of Trade Unions provides for penalties for refusal to work overtime. The Labor Code of 1971 completed the process of centralization of legal regulation of working time. The standardization of working hours for all workers and employees was carried out by the state with the participation of trade unions. Norms for working hours could not be changed by agreement between the administration of an enterprise, institution, organization with the trade union committee of the enterprise or with workers and employees. The basic standard of working time was the weekly standard of working time (normal working time 41 hours per week, reduced working time 36 and 24 hours per week). The duration of daily work was standardized only with a six-day working week. It should be noted that the ILO, since the 30s, has referred to the weekly standard of working time as the scale of regulation of working time. Ratified ILO Convention No. 47, Reducing Working Hours to 40 Hours a Week, obliges states to declare their approval of the principle of a forty-hour workweek without any reduction in wages. The Code, along with the previously known types of working time (normal), introduced a new type, part-time working time. In an individual contractual manner, it was possible to establish a part-time working week or part-time working day (Article 49). The code also determined working hours: a five-day, six-day working week, division of working time into parts. Overtime work was considered a deviation from the standard working time according to the code, the legal regulation of which was built largely on continuity with the Labor Code of 1922: a closed list of cases of overtime work, the consent of the trade union body to carry out such work, and a limitation on their duration. But the circle of persons who are not allowed to work overtime has been expanded (Article 54). Overtime work was carried out by order of the administration without the consent of the employee.
Overtime work and other deviations from normal working hours were also the subject of in-depth theoretical analysis with substantiation of proposals for improving Soviet labor legislation. Thus, in the Soviet science of labor law, the point of view on irregular working hours as a special working time regime was justifiably dominant. It was noted that under this regime it is allowed to carry out work outside the working day, which in the normal course of work can and should be completed within the time established by law. In this regard, irregular working hours cannot be recognized as a special type of work beyond normal working hours. In the literature on labor law of the 60s and 70s, a discussion arose on determining the legal nature of overtime work. Thus, L. Ya. Ginzburg believed that overtime work is one of the types of work in excess of normal working hours. Along with overtime work, he allocated overtime according to the shift schedule, hours of pedagogical work of teachers in excess established norm academic load, part-time work of medical workers. This position has been criticized. Meanwhile, in the Labor Code of the Russian Federation, the legislator identified two types of work outside normal working hours: overtime work and work on irregular working hours.