Is it possible to conclude an employment contract on a non-working holiday?

Why is it necessary?

Article 113 of the Labor Code of the Russian Federation establishes a ban on work on weekends and holidays. Involvement in work on these days, according to Part 2 of this article, is allowed only if there is written consent to work on a holiday from the employee and an order from the boss. The absence of a written document is a violation of labor legislation, for which the organization has the right to be held administratively liable under Art. 5.27 Code of Administrative Offenses of the Russian Federation.

IMPORTANT!

Shifts on Saturday and Sunday are not equivalent to weekends if these days fall according to the shift schedule and are not holidays - appeal ruling of the judicial panel of the Tambov Regional Court dated October 29, 2012 in case No. 33-2665.

Is it possible to issue orders and draw up employment contracts on weekends or red days of the calendar?

Author:

Idrisova Asel

05.01.2018 16:57

781

Section: HR documents

Question:

Is it possible to issue orders and draw up employment contracts on weekends or red days of the calendar?

Answer:

Issuing orders and employment contracts with an employee on red days of the calendar implies working on weekends and holidays. Article 85 of the Labor Code of the Republic of Kazakhstan (hereinafter referred to as the Labor Code of the Republic of Kazakhstan) states:

"1. To attract employees working on a shift schedule or on a rotational basis to work on holidays, as well as on weekends provided for in paragraph 5 of Article 84 of this Code, the written consent of the employees and the publication of an employer’s act are not required.

Work on weekends and holidays is permitted with the written consent of the employee or at his request based on the employer’s act, with the exception of cases provided for in Article 86 of this Code, and for employees working according to a shift schedule (watch schedule).

2. For work on weekends and holidays, the employee, at his request, is given another day of rest or payment is made in the amount specified in Article 109 of this Code.

3. For the purpose of rational use of working time during holidays, as well as on weekends provided for in paragraph 5 of Article 84 of this Code, the Government of the Republic of Kazakhstan has the right to transfer weekends to other working days.

4. It is prohibited to employ pregnant women who have provided the employer with a certificate of pregnancy to work on weekends and holidays.”

Thus, issuing orders and drawing up employment contracts is possible subject to compliance with the actions specified in Article 85 of the Labor Code of the Republic of Kazakhstan. In your case, it is permissible to issue an order on a working day, and in the contract specify the date of commencement of work duties on a holiday or weekend (while observing the norms of Article 85 of the Labor Code of the Republic of Kazakhstan). In addition, you should take into account the Decree of the Government of the Republic of Kazakhstan dated December 23, 2020 No. 864 “On the transfer of rest days in 2020.”

Dear users! The information in the response complies with the legislation of the Republic of Kazakhstan in force at the time (date) of publication.

When agreement is not necessary

An exhaustive list of cases when consent to work on holidays is not required is specified in Article 113 of the Labor Code of the Russian Federation:

prevention of accidents, catastrophes, natural disasters and their consequences;
preventing accidents, preventing the destruction or damage to property of a company, state or municipality;
activities necessary in connection with an emergency or martial law, the threat of fire, flood, earthquake, epidemic and other cases that threaten human life or living conditions.

The employer has the right to involve workers in the media, cinema, television and video, actors and other creative professions, if this is expressly stipulated in the labor or collective agreement or internal regulations.

On holidays, without requesting consent to work on holidays, it is allowed to call on employees of continuously operating organizations whose work cycle is necessary to maintain the life support of the population.

Moscow, you can go to work on Monday. But according to new rules! (valid until April 10, 2020)

On 04/02/2020, the President of the Russian Federation issued Decree No. 239 “On measures to ensure the sanitary and epidemiological well-being of the population on the territory of the Russian Federation in connection with the spread of the new coronavirus infection COVID-19”, “extending” the non-working days regime until 04/30/2020.

According to paragraphs. “g” clause 3 of Decree of the President of the Russian Federation No. 239 of 04/02/2020, by decision of the highest executive body of state power of the constituent entity of the Russian Federation, based on the sanitary and epidemiological situation and the characteristics of the spread of the new coronavirus infection (COVID-19) in the constituent entity of the Russian Federation, a list of organizations is determined which is not covered by this Presidential Decree.

04/04/2020 The Mayor of Moscow amended Decree No. 12-UM of March 5, 2020 “On the introduction of a high-alert regime”, which in paragraph 4 established that organizations and individual entrepreneurs during the period of the high-alert regime have the right not to limit the implementation of their activities on the territory of the city of Moscow, except for cases established by this decree, as well as decisions of the President of the Russian Federation and (or) other regulatory legal acts of the Russian Federation.

At the same time, organizations and individual entrepreneurs, in respect of which a ban on visiting them by citizens has not been established, are obliged to ensure:

4.1. Compliance in buildings, structures, structures (premises therein), adjacent territories, and other workplaces in which the relevant activities are carried out, with the requirements established by paragraphs 9 and 10.2 of the decree (including regarding compliance with social distancing and disinfection).

4.2. Making decisions on establishing the number of employees (performers under civil contracts):

— not subject to transfer to remote work due to the need for their direct participation in ensuring continuous technological and other processes necessary to ensure the functioning of such organizations and individual entrepreneurs;

— subject to transfer to remote work mode;

- in respect of which the corresponding decision of the President of the Russian Federation established a non-working day regime with preservation of wages.

4.3. Submission in electronic form of information on the number of employees in respect of whom the decisions specified in paragraph 4.2 of this decree were made (without personal data), including the types of activities carried out and the place of their implementation (indicating the corresponding address code from the Federal Information Address System ), to the email address [email protected] in the form according to Appendix 3 to this decree. Consultations on the provision of this information are carried out by telephone

This news is valid until April 10, 2020.

According to the Decree of the Mayor of Moscow dated April 10, 2020, from April 13, 2020 to April 19, 2020, the activities of all organizations in Moscow, with the exception of those specified in paragraph 3 (with a limited mode of operation) and government bodies, are suspended.

Who has the right to refuse

An employee has the opportunity to refuse to work. If the call is not related to insurmountable circumstances, the urgency of which determines the further activities of the company, the employer should not call the employee from the day off at all.

In any case, disabled people and women who have children under 3 years of age have the right to refuse. To call them, not only the employee’s consent to work on a day off is required, but also confirmation that his state of health allows him to remain without rest.

How to compose

In the header, indicate: to whom the document is being sent (position, full name) and from whom (position, full name).
Enter the title of the document.
There is no precisely established form of consent to work on a day off, so it is allowed to compose the text in free form, indicating the wording “I agree.”
Indicate the exact date of release and what duties you are being called to perform.
If you are a disabled person or a woman with a child under 3 years old, indicate in the text that you have no contraindications for health.
Sign and date.

Example

How to fire an employee during a period declared a non-working day

If the organization is subject to a non-working days regime, the employees are not transferred to remote work, they simply do not work, and the employee cannot be fired. You'll have to wait until you go to work.

The company and the employee can resolve the issue of dismissal by mutual agreement. Employees are not prohibited from quitting

It will also not be possible to reduce staff or liquidate a non-working organization during non-working days. Both procedures require the employer to notify employees three months in advance.

For those who switched to remote work, dismissal can be carried out as usual. The only thing that needs to be provided is the exchange of original documents. An employee can send a letter of resignation or receive notice of dismissal by email. This is enough to start the procedure.

The most interesting on this topic:

Personnel problems of non-working days

Is it possible to fire a remote worker for absenteeism?

In the future, it is better for the parties to exchange originals by mail. We will return to this issue a little later.

How to apply

The main document used to formalize engagement in work on weekends and holidays, in addition to the employee’s consent to work on holidays, is an order from the manager, which the employee also signs. It is drawn up in any form.

To avoid omissions, draw up the document in 2 copies, one of which remains in the hands of the employee who signed it. This will prove that he was notified of the call in advance.

Adding lines to the order indicating whether the employee agrees with the exit or not is allowed at the request of the manager. But such details eliminate the need to provide a separate consent from the employee to work on a day off.

The fact of work on the specified day must be reflected in the working time sheet. In the column opposite the corresponding date, enter the working weekend code PB or 03 and indicate the exact duration of time worked.

How to register hiring employees from January 1?

Labor legislation does not contain restrictions regarding the start date of work indicated in the employment contract.

Administrative documents are divided into 2 groups: By personnel.

This date is determined by agreement between the employee and the employer.

This is stated in the articles of the Labor Code of the Russian Federation. Consequently, the start date of work (hiring date) can fall on any day: a work day, a holiday or a day off. Also read about in more detail. In this case, the date of admission of a new employee to the organization and the date of his actual return to work may not coincide.

Therefore, you can date your employment contract to December 29, 2013, and the start date of work to January 1, 2014. Taking into account that from January 01 to January 8 are non-working holidays, then in the employment contract, which you can conclude at the end of December (but not earlier than the date of state registration of the new institution as a legal entity), you can indicate that the start of work is 01/09/2014 of the year.

How to pay

There are two options for paying for an unscheduled working day:

double payment;
single pay and extra days off.

Which option is preferable is indicated in the employee’s consent to work on holidays or in a separate application:

Payment is calculated based on average daily or hourly earnings. If an additional working day is included in the monthly working time norm, then 1 rate is paid in addition to the salary, and if the norm is exceeded, 2 rates are paid.

The company has the right to pay more at its discretion. All additional payments can be taken into account in salary expenses - para. 13 letter of the Ministry of Finance dated 02.02.2006 No. 03-03-04/4/22.