Is it possible to change the terms of the contract after it has been signed?

Art. 72 Labor Code of the Russian Federation: questions and answers

Art. 72 of the Labor Code of the Russian Federation ensures the protection and support of labor relations by regulating changes allowed to be made to employment contracts. We will tell you in our article how and when it is allowed to adjust the agreement between an employee and an employer.

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Article 72 of the Labor Code of the Russian Federation with comments 2020

Under what conditions are amendments to an employment contract permitted?

How can changes be formalized?

When is a change to an employment contract necessary under the Labor Code of the Russian Federation?

What are the nuances of transferring to another job under the Labor Code of the Russian Federation?

What other changes may be included in contracts?

How can suspension from work and changes in the contract with the employee be related?

Registration of combining positions

An employer may assign an employee to perform additional functions and responsibilities in addition to those already prescribed by his employment contract, but during the same working hours. This may be additional work in the same profession or position, or additional filling of another position. In any case, this is called combining positions or combining professions. This combination should not be confused with part-time work. Part-time work involves working for different employers. And combining positions involves performing new, broader responsibilities at the main job (Article 60.2 of the Labor Code of the Russian Federation). This happens with the written consent of the employee. And it is paid additionally (Article 151 of the Labor Code of the Russian Federation). So what are the rules for registering such a combination? Where is the new scope of work for an employee who has agreed to occupy two positions at once, as well as the terms of payment for such work, established? The Labor Code does not stipulate a specific form of document that should be used to formalize the combination of positions, which is why this issue raises doubts among employees and employers. According to the norm of Article 57 of the Labor Code of the Russian Federation, an employment contract must include a description of the employee’s job function (a list of his responsibilities) and the terms of payment for the work. Let us turn to Article 72 of the Labor Code of the Russian Federation with comments from 2020. By virtue of this article, the terms of the employment contract can be changed by the parties only in writing. When positions are combined, one employee begins to perform more functions. Accordingly, the list of his responsibilities changes. The terms of payment for his work also change, since occupying an additional position should bring an increase in wages on the basis of the law. Such changes must be confirmed in writing. Registration of combining positions occurs by changing the terms of the employment contract. This combination may be temporary rather than permanent. Despite the fact that the Labor Code of the Russian Federation does not directly indicate in what form the combination should be formalized, the following conclusion can be drawn from the provisions of Article 72 of the Labor Code of the Russian Federation. The combination of positions or professions is formalized by an additional written agreement to the employment contract, which sets out all the additional functions of the employee and the rules for remuneration. An employee may refuse to perform additional functions ahead of schedule (if the combination is temporary). To do this, he notifies the employer in writing no later than 3 days in advance. The employer has the same right in relation to the employee - by notifying the employee at least 3 days in advance, he can cancel his order for the employee to occupy two positions at once.

Article 72 of the Labor Code of the Russian Federation with comments 2020

Article 72 of the Labor Code of the Russian Federation with commentaries for 2020 contains mandatory conditions for changing an employment contract with an employee.

The contract can be adjusted in 2 main situations:

• when transferring an employee to another job;
• in the event of a change in the essential terms of the contract (in this case, the employee remains in the same position with the same job functions).

If a change in 1 condition (for example, the territorial location of the place of work) led to other changes (for example, the assignment to an employee of a monthly compensation for travel to a new place of work), then these consequences can not be taken into account when registering the main innovation. To approve them, a separate internal regulatory legal act (for example, an order for payment of compensation) is sufficient.

Commentary on Article 72.2 of the Labor Code of the Russian Federation

1. The commented article deals with temporary transfer. It should be considered in systematic connection with Art. 72 of the Labor Code of the Russian Federation, which establishes the possibility of concluding an agreement to change the terms of an employment contract.

In the absence of a permanent transfer clause, temporary transfers are subject to a one-year time limit. In accordance with the requirements of Art. 14 of the Labor Code of the Russian Federation, terms calculated in years expire on the corresponding date of the last year. If the last day of the period falls on a non-working day, then the end of the period is considered to be the next working day following it.

At the same time, the commented article establishes that in the case when such a transfer is carried out to replace a temporarily absent employee, whose job is retained in accordance with the law, the transfer period is set before this employee returns to work. In this case, the period of temporary transfer may be longer (for example, in the absence of the main employee due to parental leave). However, the period of transfer, which is considered temporary, is not specified. Its termination will actually depend on the desire and ability of the main employee to go to work.

If the transfer period has expired, the employee was not provided with the previous job, and he himself did not demand its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer loses force and the transfer is considered permanent.

Thus, the legislator, by establishing a transfer period of one year, emphasized the employee’s right, despite the fact that the transfer was made with his own consent, to return to his previous place of work after a year. Corresponding to this right is the employer’s obligation to provide such an opportunity.

If the period of temporary transfer is limited to the period of absence of the main employee, the rights of the latter are protected, since it is assumed that he will return to perform his work function.

If, after a year, the parties to the employment contract did not consider it necessary to exercise the above right, as in the case if the main employee did not go to work (for example, upon termination of the employment contract or transfer), then the temporary transfer is transformed into a permanent one.

2. Transfer to another job without the written consent of the employee is possible only in the cases provided for in parts 2, 3 of the commented article.

If emergency circumstances arise in which the normal course of business activities becomes impossible, the employee may be transferred without his consent to work not stipulated by the employment contract with the same employer, but only to prevent these cases or eliminate their consequences, and for a period of up to one month.

Likewise, in cases of downtime, as well as when it is necessary to prevent destruction or damage to property or to replace a temporarily absent employee, but only in cases where this is caused by emergency circumstances, the transfer of an employee without his consent to work not stipulated by the employment contract with the same employer is also allowed for up to one month.

According to the position of the Constitutional Court of the Russian Federation, such temporary transfers without the written consent of the employee are not forced labor. In accordance with ILO Convention No. 29 “Concerning Forced or Compulsory Labor” (1930), forced or compulsory labor cannot be considered, in particular, any work or service required in emergency circumstances, i.e. in cases of war or disaster or threat of disaster, such as: fires; floods; hunger; earthquakes; severe epidemics or epizootics; invasions of harmful animals, insects or plant parasites and other circumstances that threaten or may threaten the life or normal living conditions of all or part of the population. Similar rules are contained in Art. 74 of the Labor Code of the Russian Federation (definition of the Constitutional Court of the Russian Federation of February 19, 2004 N 55-O).

At the same time, as the Armed Forces of the Russian Federation emphasizes, the employer has the right to transfer an employee to a job not stipulated by the employment contract only in extraordinary cases specified in Parts 2 and 3 of Art. 72.2 of the Labor Code of the Russian Federation, or to eliminate their consequences. The employer must provide evidence of the existence of emergency circumstances that necessitated the temporary transfer of the employee without his consent to a job not stipulated by the employment contract (determination of the RF Armed Forces dated April 8, 2010 N 53-B11-1).

The following case from judicial practice is indicative. By order of the chief physician, T. was temporarily transferred to the position of cardiovascular surgeon at the employer's clinic without his consent. According to the employer, T.’s transfer did not contradict the provisions of Part 2 of Art. 72.2 of the Labor Code of the Russian Federation, since the absence of a cardiovascular surgeon in the clinic of a regional hospital threatens the life or normal living conditions of the entire population or part of it, which is an emergency. However, the court did not agree with these arguments. The case under consideration, according to the court, is not extraordinary.

Paragraph 17 of the resolution of the Plenum of the Armed Forces of the Russian Federation on the application by courts of the Labor Code of the Russian Federation stipulates that when applying Parts 2 and 3 of Art. 72.2 of the Labor Code of the Russian Federation, which allows the temporary transfer of an employee to another job without his consent, courts should keep in mind that the obligation to prove the existence of circumstances with which the law connects the possibility of such a transfer rests with the employer. When considering this case, the employer did not provide evidence of the existence of extraordinary circumstances that necessitated the temporary transfer of the employee without his consent to a job not stipulated by the employment contract. Accordingly, the employee was transferred under the pretext of production necessity in the absence of exceptional cases indicating the real need for such a transfer, and therefore the transfer was declared illegal.

Thus, the employer should not classify his, even high, need to transfer the employee to another job as emergency circumstances.

3. The guarantees provided for an employee in the event of emergency situations and his temporary transfer, in accordance with Parts 2 and 3 of the commented article, include the following: - even in such cases, transfer to a job requiring lower qualifications can only be carried out with written consent of the employee; - with such transfers, the employee is paid according to the work performed, but not lower than the average earnings for the previous job (for the procedure for calculating the average salary, see Article 139 of the Labor Code of the Russian Federation and the commentary thereto).

Under what conditions are amendments to an employment contract permitted?

All changes are permitted only by agreement of the parties. That is, the solution should be:

• mutual;
• voluntary.

Situations when the framework of cooperation with an employee needs to be adjusted according to other articles of the Labor Code of the Russian Federation (that is, changes are mandatory) are subject to separate consideration.

To learn about when, if you change the terms of an employment agreement, you will need to issue a notification about this, read the material “Notification of changes to the terms of an employment contract.”

Article 140 of the Labor Code of the Russian Federation

If the payment terms for dismissal are violated due to the fault of the organization’s employees, then disciplinary measures may be applied to them in accordance with Article 192 of the Labor Code of the Russian Federation (remark, reprimand, dismissal). In relation to the manager, the decision is made by higher management.

The requirements of Article 140 of the Labor Code of the Russian Federation on obligations to the employee to make full payments are mandatory for any employer. Violation of this legal norm will entail consequences both for officials and for the organization as a whole.

When is a change to an employment contract necessary under the Labor Code of the Russian Federation?

The Labor Code of the Russian Federation identifies groups of cases when the terms of an employment contract should be adjusted:

• Transfer to another job for health reasons in accordance with a medical report. If the employer does not have another job or the employee does not want to work in another position offered to him, the employment contract may be terminated (Article 77 of the Labor Code of the Russian Federation).
• Transfer to another job if the employee does not correspond to the position held (Article 81 of the Labor Code of the Russian Federation). In a situation where an employee has not passed the certification procedure established by the Labor Code of the Russian Federation, you should try to transfer him to another, simpler job with a corresponding change in the contract. If the employee refuses, the employment contract can also be terminated.
• The transfer of pregnant workers to another job is negotiated separately in order to reduce the impact of harmful and hazardous production factors on their body. In essence, this is a separate version of translation based on a medical report. The main difference is that the employer does not have the right to fire a pregnant employee and is obliged to find her a job with a workload allowed by doctors.

Changes in the Labor Code of the Russian Federation from January 1, 2020

The Labor Code is supplemented with a new article 13.1. “Accompaniment with the promotion of employment of disabled people”, according to which, in order to employ unemployed disabled people, ensure their professional adaptation and stable employment, support is provided with the promotion of employment of disabled people who need this support.

Employees who have not reached the age entitling them to receive an old-age pension, including early, within five years before such age, and employees who are recipients of an old-age pension or a long-service pension, when undergoing a medical examination in the manner prescribed by law in in the field of health protection, have the right to be released from work for two working days once a year while retaining their place of work (position) and average earnings.

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What are the nuances of transferring to another job under the Labor Code of the Russian Federation?

The transfer can be temporary or permanent. It is described more fully in Art. 72.1 and 72.2, supplementing and clarifying the basic standards of the original art. 72 Labor Code of the Russian Federation.

The following should be considered temporary:

• Transfers in connection with the replacement of a temporarily absent employee for up to 1 year. If 1 year has expired, and the employee continues to work in a new place and does not ask to be transferred to the previous one, the transfer begins to be considered permanent.
• Transfers for up to 1 month due to emergency circumstances. Accordingly, it is stipulated that the employee is transferred to perform work to prevent or eliminate the consequences of an emergency (for example, an industrial accident or natural disaster). The peculiarity is that the employee’s consent to such a transfer is not required, except in cases where this work does not correspond to the level of knowledge and skills of the employee.

Permanent transfers include all other types of transfers, including to another location with the organization and to another employer. We should not forget that all of them are possible with the consent of the employee and the employer.

Article TCRF 72.2. Temporary transfer to another job

Commentary on Article 72.2

1. The general principle of stability of the labor relationship (see Articles 60, 72 and the commentary thereto) also applies to cases of temporary transfers to another job. This means that, as a rule, a change in the content of the labor function and (or) the place of employment of labor stipulated by the contract is carried out exclusively by agreement of the parties, concluded in writing (for the form of the agreement during translation, see paragraph 4 of the commentary to Article 72 of the Labor Code).

At the same time, the legislator establishes some additional mandatory rules related to ensuring the principle of stability of the labor relationship. By virtue of Part 1 of Art. 72.2 if, at the end of the transfer period, the employee’s previous job is not provided, and he did not demand its provision and continues to work, then the condition on the temporary nature of the transfer loses force and the transfer is considered permanent. Thus, the very fact that the employee is admitted to work after the date indicated in the transfer agreement as the end of the transfer period means that the parties have reached a new agreement that the new job is permanent for the employee. In relation to a transfer to replace a temporarily absent employee, such an agreement is presumed to apply to the case when this employee returns to work and at the same time the transferred employee is also not exempt from performing the transfer work.

It should be noted that this rule also applies to those cases where a change in the labor function is expressed in the assignment of work to an employee in a different position, specialty or profession without release from the previous job, i.e. in cases of combining professions, positions or expansion of the service area (see Article 60.2 of the Labor Code and commentary thereto).

Since in Part 1 of Art. 72.2 establishes the rules for temporary transfer to another job with the same employer; these rules do not apply to cases of temporary transfer of an employee to another employer. Consequently, in the latter case, the law does not require mandatory written execution of the translation agreement (although a written form is advisable); the terms of the translation, including the condition on its duration, are determined solely by agreement of the parties; Accordingly, the rule established by this article regarding the transformation of a temporary transfer into a permanent one does not apply. If there is a need for an employee to transfer to work for the employer at the place of transfer, such a transfer must be carried out according to the rules of dismissal in the order of transfer to another employer or by dismissing the employee at his own request with the subsequent conclusion of an employment contract with the new employer.

2. The employer has the right to transfer the employee to a job not stipulated by the employment contract to prevent extraordinary cases specified in Parts 2 and 3 of Art. 72.2, or eliminating their consequences. In this regard, the Supreme Court of the Russian Federation indicates (clause 17 of the Resolution of the Plenum of March 17, 2004 No. 2) that when applying Parts 2 and 3 of Art. 72.2 of the Code, which allows the temporary transfer of an employee to another job without his consent, courts should keep in mind that the obligation to prove the existence of circumstances with which the law connects the possibility of such a transfer rests with the employer.

Transfer to another job in these cases is regulated by federal law, therefore the employer’s right to carry out such a transfer, as well as the employee’s obligation to perform a new job, follows directly from the law, regardless of whether this is provided for as a condition of the employment contract. At the same time, work not stipulated by an employment contract means work that may be outside the scope of the labor function stipulated by the employment contract.

The transfer in question falls into the category of transfers carried out at the initiative of the employer (see paragraph 6 of the commentary to Article 72.1 of the Labor Code). An employee’s refusal to transfer is a disciplinary offense entailing disciplinary liability.

Since this non-contractual obligation is fraught with the emergence of the phenomenon of forced labor, the legislator surrounds its implementation with a number of non-contractual organizational and legal conditions.

Translation in accordance with Art. 72.2 of the Labor Code: a) possible in the presence of factual circumstances of an extraordinary nature; b) is temporary; c) can only be carried out with the same employer; d) allowed if the employee retains the right to work of a certain quality.

3. The list of cases of an extraordinary nature that are the basis for the transfer of an employee is given in Parts 2 and 3 of Art. 72.2 TK. If an employer transfers an employee under the pretext of production necessity in the absence of exceptional cases indicating a real need for such a transfer, it is considered illegal.

Judicial practice proceeds from the fact that the transfer in question is possible if the employer did not have the opportunity to otherwise prevent or eliminate those specified in Art. 72.2 reasons. Deficiencies in the organization of work cannot serve as a basis for such a transfer.

4. Translation in accordance with Art. 72.2 of the Labor Code is allowed for a period of no more than one month. Since the law limits only the deadline, but not the number of transfers, such a transfer can take place more than once, but each time there is an appropriate reason of an exceptional nature.

If the reason that led to the transfer in question continues for more than a month, the employee may be assigned to perform work outside the specified labor function or place of work (structural unit), subject to his consent.

5. In accordance with the current Code, the transfer in question is permitted exclusively with this employer. In this case, it does not matter that the circumstance that led to such a transfer may arise in another economic entity.

A temporary transfer to another employer to eliminate these circumstances is possible only with the consent of the transferred employee.

At the same time, it should be noted that the legislator does not in any way limit the possibility of transfer, due to the circumstances specified in the commented article, to a unit of the employer’s organization located in another location, including to a separate structural unit.

6. When transferring in accordance with Art. 72.2 of the Labor Code, an employee cannot be assigned work that is contraindicated for him due to health reasons.

Assigning a job to a transferred employee of a lower qualification than that stipulated by the employment contract is possible only with the written consent of the employee.

7. A transfer to replace a temporarily absent employee is a special case of temporary transfers of the type under consideration. Unlike the previously existing procedure, it is currently carried out on the basis of the general rules established for temporary transfers of Art. 72.2 TK.

8. Transfer to another job in the cases specified in Art. 72.2 of the Labor Code, is formalized by an order (instruction) of the employer, which must indicate the basis and term of the transfer, the work assigned to the employee and the terms of payment (for the work performed, but not lower than the average earnings for the previous job).

9. The employer’s order for a transfer is mandatory for the employee, and an unjustified refusal to do so is a disciplinary offense entailing disciplinary liability.

In the event that an employee does not go to work or goes to his previous workplace, such actions should be considered as absenteeism. If an employee enters a new workplace, refusing to perform the corresponding work, such actions should be interpreted as a continuing disciplinary offense, for which several disciplinary sanctions may be announced, including dismissal for repeated failure to fulfill job duties (clause 5 of Article 81 of the Labor Code) .

However, it should be taken into account that, by virtue of para. 5 tbsp. 219, part 7 art. 220 of the Labor Code, an employee cannot be subject to disciplinary action for refusing to perform work in the event of a danger to his life and health due to violation of labor protection requirements, except in cases provided for by federal laws, until such danger is eliminated or from performing heavy work and work with hazardous and (or) dangerous working conditions not provided for in the employment contract. Since the Code does not contain rules prohibiting an employee from exercising this right even when the performance of such work is caused by a transfer on the grounds specified in Art. 72.2 of the Code, the employee’s refusal to temporarily transfer to another job in accordance with Art. 72.2 of the Code for the above reasons is justified (clause 19 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

Comments to the Labor Code of the Russian Federation

Publishing House "Gorodets", 2007

Source: SPS Consultant

What other changes may be included in contracts?

In addition to translations, it may be necessary to change other significant aspects of the contract. Their range and criteria of significance as such have not been established, however, having studied Art. 57 of the Labor Code of the Russian Federation, several key points can be identified that must be reflected in the employment contract. It is logical to assume that their changes should also be formalized in accordance with Art. 72 Labor Code of the Russian Federation.

This includes:

1. Correction of information about the parties to the contract. The employee can change his full name and organization details (including name).
2. Change of location. Current practice allows for quite a few variations. For example:

• moving to another premises where workplaces are located within the same area;
• exit of an employee who worked remotely to the employer’s workplace.

• Changing the term of the contract. For example:
• extension of urgent;
• transfer of urgent to indefinite.
• Supplementation of labor functions. For example, the purpose of alignment.

Read more about combining positions in the article “Order on combining positions - sample for 2019” .

1. Changing the size and procedure of salary payment. For example, indexation of rates or the appointment of additional benefits and compensation.

Read about the procedure for salary indexation here.

1. Adjustment of work and rest schedules. For example:

• in case of a change in the operating mode of the enterprise itself;
• at the request of an employee due to personal circumstances.

Find out more about such changes in the article “To whom and when is part-time working time established?” .

Changes in the general conditions for performing labor duties. For example, in connection with the use of new technologies or mechanization of production (Article 74 of the Labor Code of the Russian Federation). In this and similar cases, it is permitted to necessarily change contracts with employees in accordance with new circumstances. In this case, a procedure similar to the procedure for transferring employees to another job for reasons beyond their control applies. The employee can either agree or disagree to work under the new conditions. If agreement is not reached, he may be fired.

IMPORTANT! If as a result of the factors specified in Art. 74 of the Labor Code of the Russian Federation, layoffs may become widespread or the situation of workers will worsen, the employer should take measures to level out the consequences. Moreover, these measures will have to be agreed upon with the trade union.

Article 157 of the Labor Code of the Russian Federation

5. A special case of downtime due to the fault of the employer is the period during which the employee, as a form of self-defense, refuses to perform work that directly threatens his life and health (see Article 379 of the Labor Code of the Russian Federation and the commentary thereto). Since the obligation to ensure labor safety and conditions that meet the requirements of occupational safety and health is assigned to the employer (see paragraph 3, part 2, article 22 of the Labor Code of the Russian Federation) and the employer’s failure to fulfill this obligation is the employer’s fault for causing downtime, then the employee in this case has the right to payment for the specified period in the amount of at least two-thirds of the average salary.

6. For the same reasons, downtime due to the employer’s fault should also include downtime that occurs as a result of the suspension of work dangerous to the life and health of workers in connection with a decision of the authorized bodies. Payment for the specified period must also be made in the amount of at least two-thirds of average earnings.

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How can suspension from work and changes in the contract with the employee be related?

In Art. 76 of the Labor Code of the Russian Federation provides for several options for removal from work:

• for medical reasons;
• due to the employee’s lack of necessary special rights;
• due to lack of necessary knowledge in the field of labor protection and safety.

In most of these situations, the employer is obliged to find another temporary position for the employee so as not to terminate cooperation. Then this is recorded in the same way as a transfer to another job under Art. 72.1 of the Labor Code of the Russian Federation, with changes in the terms of the employment contract.

For information on the rules for drawing up an order for transfer to another job, read the material “Order for transfer of an employee to another position - sample.”

You can find more complete information on the topic in ConsultantPlus. Full and free access to the system for 2 days.

Article 76. Suspension from work

The employer is obliged to remove from work (not allow to work) the employee:

appeared at work in a state of alcohol, drug or other toxic intoxication;

who has not undergone training and testing of knowledge and skills in the field of labor protection in accordance with the established procedure;

has not undergone a mandatory medical examination in the prescribed manner, as well as a mandatory psychiatric examination in cases provided for by this Code, other federal laws and other regulatory legal acts of the Russian Federation;

when identifying, in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, contraindications for the employee to perform work stipulated by the employment contract;

in case of suspension for a period of up to two months of an employee’s special right (license, right to drive a vehicle, right to carry a weapon, other special right) in accordance with federal laws and other regulatory legal acts of the Russian Federation, if this entails the impossibility of execution the employee's duties under the employment contract and if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or work corresponding to the employee's qualifications, and a vacant lower position or lower paid job), which the employee can perform taking into account his state of health . In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract;

at the request of bodies or officials authorized by federal laws and other regulatory legal acts of the Russian Federation;

in other cases provided for by this Code, other federal laws and other regulatory legal acts of the Russian Federation.

The employer suspends the employee from work (does not allow him to work) for the entire period of time until the circumstances that served as the basis for removal from work or not being allowed to work are eliminated, unless otherwise provided by this Code or other federal laws.

During the period of suspension from work (preclusion from work), the employee’s wages are not accrued, except in cases provided for by this Code or other federal laws. In cases of suspension from work of an employee who has not undergone training and testing of knowledge and skills in the field of labor protection or a mandatory medical examination through no fault of his own, he is paid for the entire period of suspension from work as idle time.

Article 157 of the Labor Code of the Russian Federation

According to Part 5 of Article 157 of the Labor Code of the Russian Federation, the absence of performances, performances, concerts, etc. for creative workers and professional athletes for any period of time (not limited by a maximum period) is not a simple absence, since the performance of their labor duties is associated not only with creation and performance of works, but also with preparation for such activities. A period of work not related to the active creative process may be paid in accordance with the established working hours in the amount and manner determined by the collective agreement, local regulations, or employment contract.

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If creative workers of the media, cinematography organizations, television and video crews, theaters, theatrical and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, in accordance with the lists of works, professions, positions these workers, approved 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, for any period of time do not participate in the creation and (or) performance (exhibition) of works or do not perform, then the specified time is not downtime and may be paid in the amount and manner established by the collective agreement, local regulations, or employment contract.

Article 157 of the Labor Code of the Russian Federation

Courts in the process of applying Art. 157 of the Labor Code note that downtime caused by the fault of the employer or for reasons beyond the control of the employer and employee is subject to payment by the employer. At the same time, payment for downtime is not associated with the presence of a written warning to the employee about the start of downtime (Appeal ruling of the Supreme Court of the Republic of Kalmykia dated February 26, 2013 in case No. 33-623/13).

It is not a simple absence of performances, performances, concerts, etc. for creative workers and professional athletes for any period of time (not limited by a maximum period), since the performance of their labor duties is associated not only with the creation and performance of works, but also with preparation for such activities. A period of work not related to the active creative process may be paid in accordance with the established working hours in the amount and manner determined by the collective agreement, local regulations, or employment contract.