The procedure for issuing an act of downtime due to the fault of the employer. Order on idle time due to the fault of the employer - sample and form. Downtime notice

27.03.2020

Failure by an employee to perform their job duties usually implies penalties from the employer. After all, who does not work, he may not count on remuneration. But there are times when an employee simply cannot do the job, and this happened because of the employer. The conditions for such a break vary, but in all such situations, the employee is entitled to compensation.

Peculiarities. In what cases can it occur

Forced downtime is a certain period of time during which the employee cannot fulfill his duties prescribed in the employment contract. The problems that led to this situation may vary, as well as their culprits.

Exist several reasons for such pauses in work:

Economic kind. For example, the firm has no orders. And although this reason can be attributed to the economic situation in the country and considered external, judges, as a rule, consider it as a direct fault of the entrepreneur. After all, the manager is obliged to correctly calculate financial risks. Therefore, if there are any circumstances that justify the employer, he will be obliged to prove this in court - which, however, does not relieve him of the need to compensate employees for wasted time.
of a technical nature. Here the range of potential culprits is much wider. If the manager deliberately delays the process of completing the task, the fault for the pause lies with him. If an employee breaks the only equipment suitable for the job until a new one is purchased and delivered / installed, he is responsible for the pause in work. External reasons can also play a role: for example, the materials necessary for repairs did not arrive. Outside deliveries depend on the logistics of another company, so a third party is responsible for downtime.
organizational nature. A good example is strikes. People who did not join the rally are still unable to do their job. The legality of the protests plays a big role: if everything is legitimate, the manager is to blame. If not, no one. It also depends on the amount of compensation and whether it needs to be paid at all.

Without a trial, all the nuances of downtime often cannot be resolved. Indeed, in the Labor Code of the Russian Federation there is no clear list of situations that can be unambiguously classified as simple due to someone else's fault. The proceedings must establish the nature of the break in work and whether one of the parties to the employment contract is responsible for it. This directly affects the payment for a pause in work.

You should also not confuse simple and flawed. At the first employee does not work at all. With a defect, a person does not “fit” into the schedule of the required number of shifts, but he fulfills his duties.

How to make a simple one: step by step instructions

To get started, you need to clearly determine the reasons for the pause in work and in the future, all documents are drawn up based on their justification. In this case, the documentation of the institution will greatly help, with the help of which the fact of the suspension of activities will be obvious. For example, the accounting department is obliged to record a change in income, a shortage of certain materials for work. The employer must collect and carefully study all invoices, memos and other similar acts.

In the Labor Code of the Russian Federation, the process of registering a break in work is not prescribed, therefore, further steps are described based on numerous litigations.

Step one. We write in a formal business format downtime order. There is no clear form, so the text of the order is drawn up by each manager personally. What should be included in the document:

specific date and exact time of the beginning of the break in work;
it is also desirable to determine the date of its end, although the employer does not always have this information - for example, if there is a need to clarify the circumstances of a pause in work. Then a phrase is added to the contract that the break will end when the event N occurs;
for what reason there was a downtime and who is responsible for it;
depending on the nature of downtime, it can be introduced either for one / several departments of the enterprise, or for the entire organization. In both cases, the employer is obliged to list by name each employee who will be affected by a break in work, indicating their positions. Also separately write down the names of departments (workshops, offices, etc.) that will be idle;
reference or quote from Article 157 of the Labor Code of the Russian Federation, in the part that describes the payment procedure for a specific downtime culprit;
if the manager decides that his employees may not be present at the workplace during a pause in the performance of duties, this must necessarily be reflected in the order. If this clause is not present, employees cannot leave their places or not come to work.

This rule is due to the fact that a pause in work is not equivalent to rest. That is, although the worker has nothing to do, he still must visit the place of work, unless the manager seems to be more profitable in a different alignment.

All employees affected by this situation are required to put their signature on the order, thereby confirming that they have read the document.

Step two. It should only be done if the employer completely freezes the activity of the enterprise. In this case, you need to notify the employment service. After the start of the pause in work, the manager has three working days to write this notice and send it to the desired address. There is also no clearly defined form of the document.

Step three. Filling out the time sheet. The time in the timesheet is calculated to the nearest minute. Depending on the reason for the downtime, you need to specify a special code.

Examples of documents for registration

A downtime order can be issued as follows:

An example of an explanatory note for downtime due to the fault of the employee:

How is forced downtime paid?

Maximum payment amounts are not limited, the employer has the right to set them according to own will . The law only sets out the minimum requirements for compensation., payment below this bar will be illegal.

Downtime due to the fault of the employee is not subject to compensation. In such cases, it is likely that disciplinary offenses, therefore, the entrepreneur can additionally punish the employee for a pause in work - for example, reprimand him with entry in a personal file, or deprive him of the bonus.

Idle time due to the fault of the employer at least two-thirds of the employee's average salary is paid.

Downtime for other reasons that came from outside and are not dependent on the parties to the employment contract is paid in the amount of 2/3 tariff rate or salary of the employee, calculated in proportion to the time of the break in work.

What should an employee do during this time?

If the employer did not send the employee home, he has the right to offer the employee to temporarily perform other official duties . This requires the written consent of the employee, as well as the proper execution of his temporary transfer, fixed by a special act.

In this case, for the work done the employee must be paid in full wages, received by people who perform the same duties in the organization.

Transfer to a less qualified job (respectively, with a lower wage) is prohibited.

Sometimes workers may also carry out their previous work duties in another area. In this case, the employer does two things: draws up an act on the movement of the employee and stops the downtime in relation to him. This method is only appropriate if the person’s labor duties do not change at the new work site.

If a the employee does not agree to the transfer, he still has the right to visit workplace and do nothing there.

Among entrepreneurs, there the practice of sending subordinates on business trips during their downtime. This is not prohibited by law, but then you need to pay not for a pause in work, but for a business trip.

Particularly bored employees can clean up the office, but this is an exclusively personal impulse of their soul, so they are not entitled to demand for such payment. Office cleaning is the job of a cleaning lady who is paid to do it. The employer cannot force the employees to clean up, "since they are not busy anyway."

In general, every employee should be aware that during legal downtime, he has every right not to work and not agree to temporary transfers for other positions. Everyone decides for himself how to diversify his activities in the workplace when there is no direct work. The main thing is not to interfere with other employees to perform their duties.

Video contains Additional information on staff reduction, registration of idle time of the company.

Tatyana Gezha,
expert consultant of ZAO TLS-GROUP

Today, situations are not uncommon when, for one reason or another, organizations have to suspend their activities. How to be in this situation? What to do with employees? After all, it is impossible to send everyone on the so-called “administrative” leave en masse. Translation into incomplete work time(part-time working week) is possible only for reasons related to changes in organizational or technological working conditions. In this situation, in accordance with the law, only the introduction of idle mode is possible

Downtime is a temporary suspension of work for reasons of an economic, technological, technical or organizational nature (part 2 of article 72.2 Labor Code Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation)).

Although the Labor Code of the Russian Federation does not explain what is the cause economic nature, it can be assumed that the decline in production volumes, services provided, the number of sales is such a reason.

Regardless of external or internal factors that led to downtime, Art. 157 of the Labor Code of the Russian Federation distinguishes between three types of downtime:

downtime due to the fault of the employer;
downtime for reasons beyond the control of the employer and employee;
downtime due to the fault of the employee.

How to set up an idle period

Since there are no unified forms for processing downtime, the organization must develop actions and workflow in this case itself. For example, the algorithm of actions in this case may be as follows.

1. First you need to record in writing the fact of the downtime.

You can draw up in writing an act or a report on the reason that led to the downtime (Appendix 1).

2. On the basis of a report or act, the head of the organization issues an order to introduce downtime (Appendix 2). The order must indicate the start and end dates of downtime (if at the time of issuing the order the end date is known), whose fault it arose, which workers will be sent to downtime, the procedure for working at the time of downtime, the procedure for paying for downtime.

Notifying the employment service

In accordance with paragraph 2 of Art. 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1 “On employment in Russian Federation» from January 1, 2009, when introducing part-time work or suspending production, employers are required to notify the employment service in writing about this within three working days after the decision to carry out the relevant measures is taken.

There are no legally approved forms of this notification, so you can notify the employment service in any form (Appendix 3).

Responsibility for failure to submit a notification is not prescribed in the legislation. However, it can be assumed that the employer may be held administratively liable in accordance with Art. 19.7 of the Code of Administrative Offenses of the Russian Federation for failure to submit or untimely submission to a state body (official) of information (information), the submission of which is provided for by law and is necessary for the implementation of this body (official) of its legal activities in the form of a fine:

on the officials- from 300 to 500 rubles;
on the legal entities- from 3,000 to 5,000 rubles.

We draw up a time sheet

In accordance with the Decree of the State Statistics Committee of the Russian Federation dated 05.01.2004 No. 1, downtime is noted in the time sheet:

through the fault of the employer - the letter code "RP", the digital code "31";
for reasons beyond the control of the employer and employee - the letter code "NP", the digital code "32";
through the fault of the employee - the letter code "VP", the digital code "33".

Downtime payment

Due to the fault of the employer
In accordance with Art. 157 of the Labor Code of the Russian Federation, downtime due to the fault of the employer is paid in the amount of at least two-thirds of the average salary of the employee. A collective or labor agreement in an organization may provide for higher downtime pay. At the same time, to calculate the average wage, all types of payments provided for by the wage system used by the relevant employer are taken into account, regardless of the sources of these payments (Article 139 of the Labor Code of the Russian Federation). The calculation of the average wage is carried out in accordance with Decree of the Government of the Russian Federation of December 24, 2007 No. 922 "On the peculiarities of the procedure for calculating the average wage."
The calculation of payment for downtime due to the fault of the employer will be made according to the formula:
(average daily salary of an employee) x
(2/3) x (number of working days of downtime).
Due to employee
Downtime due to the fault of the employee (truancy, deliberate damage to production equipment, improper operation of equipment, theft of materials, etc.) is not paid (part 3 of article 157 of the Labor Code of the Russian Federation).
For reasons beyond the control of the employer and employee
In accordance with Part 2 of Art. 157 of the Labor Code of the Russian Federation, downtime for reasons beyond the control of the employer and employee is paid in the amount of at least two-thirds of the tariff rate, salary ( official salary) calculated proportionally to the idle time.
The calculation of payment for downtime for reasons beyond the control of the employer and employee will be made according to the formula:
(monthly tariff rate (salary)) / (number of working days in the month of downtime) x (2/3) x (number of working days in the downtime period).
It is often difficult to understand whose fault the downtime occurred - through the fault of the employer or for reasons beyond the control of the employer and employee. For example, the position of the employer is common, that it is simple for economic reasons ( financial crisis) is downtime for reasons beyond the control of the employer and employee.
How to determine whose fault the downtime occurred?
Let's say there's a hardware failure. If the employer did not periodically conduct scheduled technical inspections, did not control the proper condition of the equipment, this is a downtime due to the fault of the employer. If there were any force majeure circumstances, this is downtime for reasons beyond the control of the employer and employee. If the equipment was used in violation of the rules of operation - this is a downtime due to the fault of the employee.
As for the difficult financial situation, the position of experts is ambiguous.
Some tend to conclude that the employer, in accordance with Art. 22 of the Labor Code of the Russian Federation is obliged to provide work stipulated by an employment contract. And if the employer was unable to collect a sufficient number of orders and could not provide the employee with work, the downtime in this case occurred through the fault of the employer.
The opinion of other experts that the fault of the employer in this case, as well as in cases where the organization was let down by suppliers, is not.
In such cases, in our opinion, it is more expedient either to pay this period as downtime for reasons beyond the control of the employer and the employee, or to analyze each situation individually and in some cases pay as downtime due to the fault of the employer, and in some cases - for reasons independent of employer and employee.
But be prepared for the fact that the employee may not agree with your decision and go to court. And the court will already establish the presence or absence of the employer's fault in this case.
During the period of downtime, it is possible to transfer an employee to another job (Article 72.2 of the Labor Code of the Russian Federation).

sick leave payment

In accordance with paragraph 5 of part 1 of Art. 9 of the Federal Law of December 29, 2006 No. 255-ФЗ “On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Motherhood”, from January 1, 2011, temporary disability benefits are not assigned to the insured person for the period of downtime. An exception, in accordance with paragraph 7 of Art. 7 of the said Law are situations where temporary disability occurred before the downtime period and continues during the downtime period. The temporary incapacity benefit for the period of downtime is paid in the same amount in which wages are maintained during this time, but not higher than the amount of temporary incapacity for work benefit that the insured person would receive under the general rules.

Downtime taxes

Payment for forced downtime is considered the employee's income subject to personal income tax (clause 1, article 210 of the Tax Code of the Russian Federation). In accordance with Art. 210 of the Tax Code of the Russian Federation, when determining the tax base for personal income tax, all incomes of the taxpayer received by him both in cash and in kind or the right to dispose of which he has arisen are taken into account.

In accordance with Art. 7 of the Federal Law of July 24, 2009 No. 212-FZ “On insurance premiums to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Fund for Compulsory Medical Insurance and Territorial Funds for Compulsory Medical Insurance”, payments and other remuneration accrued by payers of insurance premiums in favor of individuals within labor relations. Consequently, the payment of forced downtime is subject to insurance premiums.

In accordance with paragraph 3 of Decree of the Government of the Russian Federation of March 2, 2000 No. 184 “On approval of the Rules for accruing, accounting and spending funds for the implementation of compulsory social insurance against industrial accidents and occupational diseases”, payment for the downtime period is subject to insurance premiums against industrial accidents and occupational diseases.

Downtime due to the fault of the enterprise is a temporary suspension of work due to economic (difficult financial situation), technological (change in production methods), technical (breakdown, replacement of production equipment) or organizational (reorganization structural divisions) nature (part 3 of article 72.2 of the Labor Code of the Russian Federation).

Easy to operate can touch:

the whole organization;
structural unit or a certain part of employees;
a specific worker.

Downtime may occur due to the fault of the employer or employee, as well as due to circumstances beyond the control of the parties (natural disaster, accident). The employer is obliged to comply with the rules for registration of downtime. Firstly, it is necessary to document the reasons for the suspension of production, and secondly, to issue an order to declare downtime.

With the permission of the head of the organization, employees may be absent from the workplace during downtime. But it should be noted that they are not exempt from doing their job duties, because in accordance with Art. 107 of the Labor Code of the Russian Federation, downtime is not rest time. According to Part 3 of Art. 72.2 of the Labor Code of the Russian Federation, when an idle regime is introduced, the employer has the right to transfer the employee without his consent for up to one month to work not stipulated by the employment contract.

Downtime payment

Registration of downtime due to the fault of the employer involves the preservation of the employee's wages. In this case, the amount of payment must be at least two-thirds of the average salary of the employee.

Downtime that has arisen for reasons beyond the control of the parties is paid in the amount of at least two-thirds of the tariff rate, salary (official salary), calculated in proportion to the downtime (Article 157 of the Labor Code of the Russian Federation).

Downtime procedure

The first step in registering downtime is to identify the factors that lead to the suspension of the enterprise (equipment breakdown, difficult financial situation, etc.). When these circumstances are revealed, employees draw up a memorandum, which is the basis for issuing the corresponding order by the head of the organization.

The memorandum is registered by personnel specialists in the register of notes and stored in the organization for 3 years. After receiving the memorandum, the head of the organization must issue an order to declare downtime. The order is drawn up arbitrarily and must be signed by the head of the organization.

In the event of downtime of employees at the enterprise, the employer is obliged to notify the employment service in accordance with paragraph 2 of clause 2 of Art. 25 Law of the Russian Federation “On Employment in the Russian Federation” dated April 19, 1991 No. 1032-1. The employer is obliged to notify the employment service in writing within three working days after the introduction of the downtime regime at the enterprise.

After the elimination of the causes, the head of the organization must issue an order to cancel the downtime. If the date and time of the end of the mode is already indicated in the order to declare downtime, then it is not necessary to issue a cancellation order.

After the end of the downtime at the enterprise, the manager must again notify the employment service in writing. But if the head of the organization in the first notification has already indicated the date and time of the end of production downtime, then it is not necessary to notify the employment service again.

Having become acquainted with step by step procedure registration of downtime due to the fault of the employer, you can download a memorandum and all the necessary orders on this page.

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

How to make a simple

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

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

Technical downtime may occur:

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

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

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

What documents to draw up when idle

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

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

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

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

simple acts - there is no unified form of the act, it is drawn up in an arbitrary form.
a memo from the head of the department to the director of the company (part 4 of article 157 of the Labor Code of the Russian Federation). The note will indicate the date and time the downtime began, its duration (if known), the reasons for the downtime, etc.
time sheet with marks of the downtime period. The company can use a unified form of the time sheet, approved by the Decree of the State Statistics Committee of Russia dated 01/05/2004 N 1, or a form developed independently.

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

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

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

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

How to pay for idle hours

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

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

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

How to pay downtime due to the fault of the employer

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

Average earnings should be determined in accordance with:

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

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

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

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

Payments for the billing period amounted to:

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

bonuses - 10,000 rubles. in May 2015;

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

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

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

By the way, payments in favor of employees for downtime are not compensatory in terms of the terminology of the Labor Code of the Russian Federation (Article 164) and are subject to personal income tax on the basis of paragraph 1 of Art. 210, Art. 217 of the Tax Code of the Russian Federation.

Payment for several hours of downtime

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

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

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

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

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

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

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

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

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

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

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

How to pay downtime if no one is to blame

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

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

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

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

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

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

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

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

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

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

How to pay a downtime for a part-time worker

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sample order for downtime due to the fault of the employer

Sample order for downtime for independent reasons

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

In the order for a simple (sample) indicate:

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

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

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

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

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

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

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

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

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