The possibility of an employer recalling an employee from vacation is due to the need to obtain the employee’s consent. 3. Regardless of the employee’s consent, it is prohibited to recall certain categories of employees specified in Part 3 of this article from vacation. Second commentary on Article 125 of the Labor Code 1. Article 8 of ILO Convention No. 132 (revised 1970) provides that the division of annual paid leave into parts may be authorized by the competent authority or other appropriate authority in each country. One of these parts of leave must consist of at least two continuous working weeks. In full accordance with ILO Convention No. 132, Part 1 of Art. 125 Labor Code of the Russian Federation. 2. In Part 1 of Art. 125 provides for the possibility of dividing annual paid leave by agreement between the employee and the employer.
Art. 125 TK RF: questions and answers
An employee’s refusal (regardless of the reason) to comply with the employer’s order to leave work before the end of the vacation cannot be considered a violation of labor discipline (clause 37 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation ").
When an employee is recalled from vacation, wages are recalculated, and subsequently, when using the remaining part of the vacation, the average salary for the vacation is paid on a general basis. Consultations and comments from lawyers on the legislative system of the Russian Federation If you still have questions about the legislation of the Russian Federation and you want to be sure of the relevance of the information provided, you can consult with the lawyers of our website. https://youtu.be/r_wYtTMmU0M
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Extension or transfer of annual paid leave
Changing or extending vacations is sometimes carried out at the initiative of the employer. This is often required when an enterprise is reorganized or new technologies and work systems are introduced into production. Then the company informs all personnel about the adjustments made. Rescheduling or changing vacation dates at the employee’s initiative is carried out, in accordance with Article 124 of the Labor Code of the Russian Federation, subject to the following conditions:
- The employee fell ill and sought help from a medical facility. Sick leave is confirmed by opening a certificate of incapacity for work.
- The employee was entrusted with the performance of important duties of national importance, which, according to labor legislation, are grounds for release from work (members of the election commission, military training, etc.).
- The employee did not receive the compensation due to him on time or the employer violated the rules of warning the person about the vacation time, but the citizen is required to submit a written application about the need to change the vacation dates.
- Going on vacation will lead to disruptions in the organization’s work and may negatively affect the activities of an individual enterprise.
Article 124 of the Labor Code of the Russian Federation also directly states that the extension of leave is carried out for the number of days during which the circumstances that served as the basis for the extension or transfer to another period existed.
The salary amount remains unchanged. If a citizen is involved as a member of the election commission, then he receives compensation for his work based on adopted regional regulations. The government agency that sends the invitation is obligated to pay it. If we consider Article 124 of the Labor Code of the Russian Federation with comments, then the conditions are clearly stated there, but the possibility of transfer is also not reflected if the annual leave falls during the session period. In this case, the employee has the legal right to rest at other times at his own discretion, subject to agreement on the dates with the employer.
Conditions for transferring vacation from the current year to the next
The provisions of the Labor Code of the Russian Federation also contain an indication of exceptional cases when, at the initiative of an employee or production necessity, annual paid leave is postponed to the next year. It must be used no later than 12 months after the end of the working period for which it was provided. Transfers are prohibited in the following cases:
- The employee did not take vacation for two years in a row, regardless of the reasons.
- The employee is not yet 18 years old.
- Hazardous production or harmful working conditions.
It is important to know! These categories receive a stipulated rest period every year. The law establishes a special procedure for persons working in the Far North or areas that have been equated to them. They can also combine holidays over two years, subject to any additional periods due.
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Questions tagged “Art. 125 tk RF"
Dividing leave into parts is permitted by agreement between the employee and the employer. The number of parts into which vacation can be divided is not defined by law and is established by agreement of the parties.
Important
Part 1 of the commented article only requires that at least one part of the vacation be at least 14 calendar days. This requirement is consistent with ILO standards. The provision of each part of the vacation is carried out in compliance with the general rules relating to warning the employee about the expiration of the vacation period and payment of the average wage.
2.
Info
Recalling an employee from vacation is, in essence, a way of dividing vacation into parts, and the initiator of such division of vacation is the employer. The Labor Code does not define what circumstances may serve as grounds for recalling an employee from vacation.
In any case, such withdrawal is permitted only with the consent of the employee.
What to do with the unused part of the vacation?
The unused part of the vacation can be selected by any method suggested below:
- Consider lost time as compensated. In this case, no refund will be made of previously paid vacation pay, which will be considered compensation paid for time not taken off. Please note that not all periods can be compensated, and the frequency of compensation payments should not exceed once every two years.
- Pick up the remaining days at any time convenient for the employee. With such an agreement, the rest period is usually agreed upon by the parties immediately, and its duration can be any, not just 14 calendar days.
- Add the remaining balance to the vacation period of the next year.
The choice of option rests entirely with the employee himself, and not the employer. However, it also requires prior agreement.
Labor Code of the Russian Federation (Labor Code of the Russian Federation)
Article 125 of the Labor Code of the Russian Federation states that annual paid leave can be divided into parts by agreement between the employee and the employer. The initiative to share leave usually comes from the employee, but the employer's consent is required. The issue of using vacation in parts can be decided both when drawing up an annual vacation schedule for the calendar year, and directly when providing the employee with annual paid leave. The law does not establish how many parts vacation can be divided into. In principle, by agreement of the parties, it can be divided into several parts, but at least one part of this vacation must be at least 14 calendar days. In other words, that part of the vacation that exceeds 14 calendar days can be divided into parts.
More complete information will be provided by answers to frequently asked questions related to the application of this article in practice. Article 125 of the Labor Code of the Russian Federation: main provisions with comments for 2020 How can leave be divided according to the norms of the Labor Code? What features of the division of vacations exist in the presence of additional paid vacations? How many parts can a vacation be divided into? What problems may an employer encounter in connection with dividing vacations into parts? How should a call from vacation occur? Is it possible to consider an employee’s refusal to interrupt vacation as a violation of labor discipline? How are payments adjusted to an employee called back from vacation? Which employees cannot be called back from vacation? Article 125 of the Labor Code of the Russian Federation: main provisions with comments for 2020 Part 1 of Article 125 of the Labor Code of the Russian Federation provides for employees the opportunity to use the prescribed period of annual leave in parts. Regulation Art.
Dividing vacation into parts in 2020
Considering that workers, by virtue of Article 115 of the Labor Code of the Russian Federation, are entitled to an annual rest of at least 28 days.
And at the same time, within the framework of Article 125 of the Labor Code of the Russian Federation, it is allowed to divide it into several parts. Many people have a question about how the fragmentation is documented and how many parts it can actually be divided into.
Procedure and stages of registration
Within the framework of Article 123 of the Labor Code of the Russian Federation, workers exercise their right to annual vacation not in a chaotic manner, but in accordance with a schedule that sets out the planned periods for providing vacation.
If for any reason an employee cannot use the vacation in full or he needs part of the vacation at another time not established by the schedule, it is allowed to split the vacation into parts by submitting an application.
If the initiator is the employer, the division of leave should be provided for at the stage of forming a priority schedule, which workers become familiar with under signature, thus expressing consent.
How to document it correctly?
As a rule, any request of an employee in relation to the employer is enshrined in a statement, which is considered, agreed upon and then serves as the basis for issuing an order.
Sample application
A sample application can be found below:
Application for splitting vacation into parts
Sample order
Accordingly, based on the application, an order is issued, T-6, in the following format:
Order form form T-6
How is it stated in the employment contract?
By virtue of Article 57 of the Labor Code of the Russian Federation, one of the mandatory conditions that must be covered in the cooperation agreement is the work schedule, which includes rest time, but only if the time of release or the length of leave differs from that generally accepted in the company.
That is, if the worker is entitled to additional leave of longer duration, then it is necessary to cover it in the employment contract. But the issue of splitting the vacation does not require stipulation in the contract, since this condition is not mandatory and is accordingly resolved in the working order and if necessary.
Is additional agreement required?
The conditions stipulated in the employment contract are binding on both parties.
Therefore, if the contract stipulates that vacation time should be used twice a year, and the worker wants to divide the vacation into three times, an additional agreement will be required, and so on annually.
That is why the issue of splitting vacations is not specified in the employment contract, since it is much easier to initially establish a standard length, which can then be regulated through a vacation schedule.
Is it legal to include it in a local act?
By virtue of Article 21-22 of the Labor Code of the Russian Federation, both company management and workers are obliged to comply with the norms enshrined in local acts.
Therefore, if the condition on the division of leave is fixed in the same collective agreement, the parties will be obliged to fulfill it and thereby violate Article 125 of the Labor Code of the Russian Federation, which states that this issue is resolved by agreement and implies a right, not an obligation.
Reflection in the vacation schedule
It is possible to divide vacation into parts at the initiative of management even when drawing up a vacation schedule by introducing several periods at the same time.
If vacation splitting is carried out within a year and after the publication of the schedule, a mark about the new period is placed in columns 8.9 (form T-7).
Article 125 nr RF as amended for 2020
There are 2 options:
- the most common is that the employee writes a statement with a request to offset the excess vacation pay against future salary;
- the employee deposits the resulting overpayment amount into the organization's cash desk.
NOTE! Upon further use of the vacation balance, vacation pay for it must be calculated and paid anew. Read about the rules for calculating vacation pay in the article “Calculating vacation in 2017 - examples and features.”
Which employees cannot be called back from vacation? Article 125 of the Labor Code prohibits recalling from vacation:
- Minors
- Pregnant
- Those employed in jobs with special working conditions.
In relation to these categories of employees, the employer cannot take advantage of the provisions of Art. 125 of the Labor Code regarding the interruption of vacation due to production needs.
Possibility and procedure for recall from vacation
The recall of personnel is carried out in a similar way, which is also regulated by Art. 125 of the Labor Code, which determines how to divide vacation and recall employees from it. In both cases, the key point is the consent of the parties. When recalling, this is the desire of the employee, without which management opportunities are limited.
Registration of the procedure
The standard basis for a recall is production necessity. It is not directly stated in Part 2 of Art. 125 of the Labor Code of the Russian Federation, but usually this is the wording used when drawing up the corresponding order. A notice is drawn up in advance in the name of the employee, indicating information about him, the document number, and the reasons for the call. The date when it is necessary to return to work and guarantees ensuring that the citizen retains the remainder of the rest period are also written down here.
Attention! The employee confirms his consent by signing the notice or a separate document. Refusal to sign automatically excludes the possibility of interrupting your vacation; management cannot apply any pressure. Consent is spelled out in the rules for recall from vacation under the Labor Code of the Russian Federation, Art. 125. If the employee has nothing against it and signs, an order is issued for the organization.
Restrictions on calling from vacation
As in the case of split holidays, there are categories of persons who cannot be recalled even with their consent. It is not the length of service that matters, but other characteristics, such as being a minor, pregnancy, or working in a hazardous industry.
Changes in the vacation schedule
As a result, new information is added to the vacation schedule. The changes take the form of a note indicating how long the rest is postponed. The relevant information is entered in column 10, reserved for notes. Lack of data upon actual revocation automatically means a violation.
Article 125 of the Labor Code of the Russian Federation with amendments for 2020 with comments
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- 04/27/2018 Bondarenko Elena Valerievna Good morning, Lena.
Article 125 of the Labor Code of the Russian Federation with amendments for 2020
ST 125 Labor Code of the Russian Federation. By agreement between the employee and the employer, annual paid leave may be divided into parts. Moreover, at least one part of this vacation must be at least 14 calendar days. Recall of an employee from vacation is permitted only with his consent. The part of the vacation unused in this regard must be provided at the employee’s choice at a time convenient for him during the current working year or added to the vacation for the next working year.
Attention
It is not allowed to recall from vacation workers under the age of eighteen, pregnant women and workers engaged in work with harmful and (or) dangerous working conditions. 1. Dividing leave into parts is permitted by agreement between the employee and the employer.
The number of parts into which vacation can be divided is not defined by law and is established by agreement of the parties.
Dividing balances for weekends
Even if the balance is less than 14 days, the legislator allows the vacation to be divided into parts.
There is a trick here that allows you to divide 30 days into four weeks. For example, a taxi service employee can go on vacation for 30 calendar days annually. At the same time, he wants to take one week in the spring. According to the law, the main part will be 21 remaining days, which is legal. Once two weeks have been taken off, half of the remainder can also be divided by writing in the application “I would like to take a week off as part of my annual paid time off plan.” That is, even if an employee has only two weeks of rest or the entire calendar plan on weekends, he has the right to divide his vacation in parts in accordance with the Labor Code of the Russian Federation.
We recommend you study! Follow the link:
How to register and pay for a day off on vacation
To do this you need:
- write a statement according to the sample;
- indicate the reasons for the division of leave;
- if an employee wishes to take several days off as vacation so that they are paid, an application for working days is written;
- after that, an order is drawn up providing for time off.
When an employee takes two or three days, but does not want them to be paid, then an application for time off is drawn up. In this case, days can be added to an additional residual plan. The balance not taken off can also be attached to the next annual leave, even if it exceeds the required thirty days.
Article 125 of the Labor Code of the Russian Federation with amendments for 2020 with comments
N 647 “On increasing the duration of vacations for employees of the coal, shale, mining industries and certain basic sectors of the national economy” // SZ RF. 1990. N 16. Art. 85). 3. The Code does not determine the number of parts into which leave can be divided.
It is important that one of them is at least 14 calendar days. The Code does not resolve the issue of how to correlate the use of vacation in parts with the obligation to determine the time of granting vacations in an appropriate schedule.
If you change the schedule each time to provide the possibility of using vacation in parts, then this local regulatory act ceases to determine the timing of the provision of vacations throughout the year. In addition, changes to the schedule must be made in the same order in which it is approved, taking into account the opinion of the representative body of workers (see Part 1 of Article 123 of the Labor Code of the Russian Federation).
Recalculation of vacation payments upon recall
In Art. 125 of the Labor Code of the Russian Federation does not prescribe the obligations and procedure for recalculating vacation pay. This procedure is determined by the right of a working citizen to wages. It will not be possible to do without recalculation, but it is carried out in accordance with Article 139. The Labor Code of the Russian Federation, which provides for calculations based on average earnings.
Attention! If it is less than vacation payments, they can be recovered only with the consent of the employee. If received, the maximum size should not exceed 20%.
https://youtu.be/iRgrSzybuxU
So, the considered article clearly answers whether the division of vacation into parts is allowed. This is possible, but provided that 14 days of vacation according to the Labor Code of the Russian Federation in any case remain with the employee. The basis is the consent of the parties, but even its presence does not allow splitting the rest of individual categories of workers.
Article 125 of the Labor Code of the Russian Federation with changes for 2020 print
- Agreement of agency, representation
- Bank guarantee agreement
- Enterprise sale agreement
- Contract for storage of valuables
- Contract of sale and exchange of currency
- Insurance and reinsurance agreement
- Agreement on financing, participation in authorized funds
- Simple partnership agreement
- Lifetime annuity agreement
- Household rental agreement
- Commission agreement for purchase and sale
- Contract for design and survey work
- Agreement for the exchange of real estate, securities
- Lease agreement, contracting
- Contract for carrying out scientific research work
- Franchising agreement and transfer of rights
- Funds and property management agreement
- Bank and deposit agreement
- Leasing contract, agreement
- Bank account agreement.
After the employer has contacted the employee and received verbal confirmation that the latter is ready to interrupt his vacation, a separate order for recall from vacation should be issued. On the day the employee returns to work, he:
- expresses his consent in writing to the order itself;
Find a sample order here: “We are preparing a recall from an employee’s vacation - a sample order.”
- or signs a separate consent, which is filed with the revocation order.
See also: “An employee is recalled from vacation: should I pay personal income tax on travel to work and back to the place of rest?” Is it possible to consider an employee’s refusal to interrupt vacation as a violation of labor discipline? No you can not. Therefore, the written consent of the employee is required. No consent - no response under Art. 125 of the Labor Code of the Russian Federation, therefore, there is no violation (Resolution of the Supreme Court of the Russian Federation “On the application of the Labor Code by courts” dated March 17, 2004 No. 2).
FAQ
The law provides only general rules that imply the possibility of splitting vacation. At the same time, many do not know how to divide the same balances into several parts or how holidays affect the length of even a short vacation.
Meanwhile, some of the above-described norms are regulated by clarifications of the Ministry of Labor, which explain the procedure for applying the norms of the Labor Code of the Russian Federation.
What to do with weekends and holidays that fall during vacation?
By virtue of Letter of the Federal Service for Labor and Employment dated July 17, 2009 No. 2143-6-1, holidays are not included in the length of vacation and are provided immediately after its end, which is also true for vacations of standard duration.
In this case, weekends are included in the vacation only if they are initially discussed in the order.
For example, if a worker takes a two-day vacation on Thursday and Friday, the weekend will not be included in the vacation, but if the employee takes 4 days, then the agreed weekend will be included in the vacation.
Is it permissible for an employee to give feedback if he has divided it into parts?
By virtue of Article 125 of the Labor Code of the Russian Federation, recall of an employee from vacation is allowed only with his consent. At the same time, the law does not establish which part of a worker’s vacation can be recalled and which cannot, because it is assumed that the employee initially takes full vacation.
At the same time, the norms of the Labor Code of the Russian Federation indicate that, regardless of which part of the rest it belongs to, recalling pregnant women, as well as workers, with harmful factors in the workplace is unacceptable.
What should an employer do if an employee does not agree to splitting?
Article 125 of the Labor Code of the Russian Federation states that vacation splitting is possible only by mutual agreement of the parties.
Therefore, if the same employee does not agree with management’s position on the division of leave, the director has no right to force him, given that violation of the norms of the Labor Code of the Russian Federation is punishable by the punishment provided for in Article 5.27 of the Code of Administrative Offenses of the Russian Federation.
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Vacation
