Russian labor legislation protects the employee’s right to rest and prohibits the absence of vacation at least once every 2 years. For failure to comply with this condition, the employer is liable. However, situations are different. Perhaps the employee himself, for personal reasons, wants to postpone his vacation to a more convenient time. Or the employer insists on calling the employee back from vacation. Therefore, we will further analyze the issues of transferring vacation to the next year, how to transfer it and the necessary samples of a transfer application (download), order .
Also see:
- Right to first leave
- Transfer/cancellation of leave at the employee’s initiative and registration of this
Reasons for postponing vacation
several reasons for postponing your vacation . There are reasons that are directly stated in the Labor Code of the Russian Federation. For example, this is the transfer of sick leave. Or it may be personal (family) circumstances that arise for the employee, which are not a mandatory basis for postponing vacation. However, there are categories that cannot be denied the transfer of vacation at the request of the employee.
Additional leave is subject to the same reasons for transfer as main leave.
Let's consider these nuances further.
The legislative framework
The classification of the complexity of working conditions is given in Article 14 of Law No. 426-FZ of December 28, 2013. This regulatory act regulates the rules for establishing hazards and hazards at work. The event is carried out according to the following logic:
- The employer enters into an agreement with the evaluation commission and provides its employees with documentation;
- Specialists organize an assessment of each work place and draw conclusions about the degree of danger or severity, including in terms of work stages;
- The results of the specialists’ activities are documented in the form of a report.
Attention: the assessment report is the basis for making changes to the contract of the employee occupying the job position specified in the document.
Federal Law of December 28, 2013 No. 426-FZ “On special assessment of working conditions”
Why do they remove harmfulness?
The list of professions considered harmful or dangerous was approved in the USSR. Decree No. 298/P-22 of 1974 is still in force. Over the past years, a lot has changed in production:
- new technologies have appeared to make work easier;
- modern equipment was invented and put into production;
- professions arose that did not exist before.
The changes led to the need to conduct a serious audit of existing production facilities. The reform was necessary for two subjects of economic relations:
- employers paying preferential amounts under articles of the Labor Code;
- the state, which takes upon itself the social protection of citizens.
For information: with the entry into force of Law No. 426-FZ, a lot of work began on recertification of places of work. It often leads to the transfer of a position from a heavy class to a regular one.
Resolution of the USSR State Labor Committee of October 25, 1974 No. 298/P-22 “On approval of the list of industries, workshops, professions and positions with hazardous working conditions, work in which gives the right to additional leave and a shortened working day”
When you cannot refuse a transfer
If the head of the organization has received an application to postpone the vacation, he can meet the employee halfway and reschedule his vacation. Wherein:
- the vacation schedule is violated;
- previously approved agreements on the performance of duties or part-time work cease to work.
Therefore, it is important to weigh the pros and cons when deciding whether to agree to reschedule leave at the employee’s request.
According to the Labor Code of the Russian Federation, there are protected categories of employees for whom the employer cannot refuse to postpone their vacation. For example, this is a pregnant employee who asks to postpone her leave due to maternity leave. In this case, the refusal is unlawful .
In addition, you cannot refuse to reschedule your vacation on the following grounds:
- untimely payment of vacation pay (remember that vacation pay must be paid at least 3 calendar days before the start date of the vacation);
- untimely notification of the employee about the date of the upcoming vacation (the employer must notify in writing no later than 2 weeks );
- the employee belongs to a special category (for example, women before or immediately after maternity leave, Chernobyl survivors, combat veterans, etc.). You can read more about this in the article “How to create a vacation schedule in 2021”;
- other reasons for transfer, approved by local regulations.
The last point applies to those companies that, by their internal document, have established additional reasons for postponing vacation. The company has the right to do this in accordance with paragraph. 4 hours 1 tbsp. 124 and part 4 of Art. 189 Labor Code of the Russian Federation. For example, you can provide for a transfer if a family member is sick.
When postponing vacation on the above grounds, an employee should still take into account that the employer needs time to calculate vacation pay and pay it. Therefore, the Ministry of Labor, in its letters dated February 27, 2020 No. 14-2/OOG-1439 and dated October 31, 2019 No. 14-2/OOG-8456, recommended establishing reasonable deadlines for submitting applications to reschedule leave. So that the employer has time to pay on time in order to avoid violations of labor laws.
If the employee does not sign a notice of change in working conditions
In our opinion, an employee’s refusal to sign an additional agreement to the employment contract should be regarded as his refusal to continue working under new conditions.
Judicial practice Collapse Show In judicial practice, an employee’s refusal to sign an additional agreement (including when such a refusal has been activated) is also regarded as a refusal to continue work in connection with a change in certain terms of the employment contract (decision of the Moscow City Court dated January 26, 2012 No. 4g/9 -207, rulings of the judicial panel for civil cases of the Moscow City Court dated 06.06.2011 No. 33-17164 and dated 08.11.2010 No. 33-34199, cassation ruling of the judicial panel for civil cases of the Tula Regional Court dated 07.14.2011 in case No. 33-2408 , cassation ruling of the judicial panel for civil cases of the Volgograd Regional Court dated 06/01/2011 in case No. 33-6952/2011).
Answer to the question: In the described case, the employee can be fired under clause.
7 hours 1 tbsp. 77 Labor Code of the Russian Federation. At the same time, the employer must prepare for the need to prove the existence of reasons of an organizational or technological nature for a corresponding change in the terms of remuneration. According to general rules, the terms of remuneration, including the size of the tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments, are a mandatory condition of the employment contract. The terms of the employment contract can only be changed by written agreement of the parties.
The relevant procedure, among other things, provides for
As a general rule, changes to the terms of an employment contract are made by concluding an additional agreement between the employee and the employer, which is subsequently an integral part of the employment contract (Art.
72 of the Labor Code of the Russian Federation). The initiator of changes can be both the employee and the employer. If the terms of the employment contract determined by the parties are changed at the initiative of the employer, and the employees (or at least one employee) do not agree, then this change must be formalized in accordance with the provisions of Art.
[important] Is it necessary to notify employees (2 months in advance) about reducing the number of additional days of vacation for irregular working hours?
1-3. In all cases, the employer has the right to cancel guarantees if working conditions have improved.
If the conditions that served as the basis for the appointment of previous compensation measures remain, then the employer does not have the right to cancel the previously assigned compensation. Changes to an employment contract can be made by agreement of the parties or unilaterally with prior notice to the employee 2 months in advance. (cm. ). Depending on the terms of the collective agreement, it may be necessary to change the collective agreement (see.
). For more details on this, see the materials in the justification. The rationale for this position is given below in the materials of the “Personnel System” and in the materials of the “Labor Safety System”.
1. Article: What to consider when changing the class of working conditions based on the results of a special assessment “When is it unacceptable to reduce the amount of compensation for harmfulness?
Based on the results of the certification in December 2013, the employee was found to have hazardous conditions.
To work with the site, you must enable JavaScript. For the site to function correctly, your web browser must have JavaScript enabled. Order a service Order a call. Consultation: on the abolition of additional leave for employees based on the results of the SOUT in the organization in November. Based on its results, the organization should no longer provide additional leave to some employees, since their working conditions are no longer classified as harmful.
The special assessment report has been approved Until when is additional leave required? How and in what period of time should employees be notified of their cancellation? Employees should be notified of the cancellation of additional leave upon review of the results of a special assessment of working conditions, having reached an agreement on changing the terms of employment contracts.
Application for transfer of vacation
An application for rescheduling leave is submitted by an employee who, on his own initiative, wishes to change the dates of the initially approved leave. This statement is mandatory if it is due to:
- violation of deadlines for payment of vacation pay;
- notification of the start of vacation.
In other cases, such a statement is often written in practice, although it is not required .
Our experts have prepared a sample application for rescheduling a vacation, which can then be downloaded for free:
EMPLOYEE'S APPLICATION FOR CHANGING HOLIDAY (SAMPLE)
When the employer has received an application from the employee, it is necessary to check that it is filled out correctly. The application must indicate:
- Full name, position and structural unit in which the applicant works;
- dates and type of leave that is being transferred;
- reason (ground) for rescheduling the vacation;
- start date of the new vacation;
- date, signature and signature transcript.
What should an employer do?
The management of the enterprise receives certification certificates from employees of the evaluation commission. Documentation must be approved within ten days. If there are doubts about the correctness of the assessment, a claim is filed. This can be sent to court.
The adopted acts are a guide to action. All personnel documentation must be brought into compliance with the conclusion of specialists. The following work is carried out:
- workers are warned about changes in the terms of the contract;
- for each, additions to the contract are drawn up;
- the latter are carried out by order of the enterprise;
- changes must be agreed upon with a trade union organization or other representative body;
- employees are asked to sign an addendum to the agreement on the abolition of benefits for harmfulness or danger.
Attention: the basis for issuing an order and an addition to the contract is the certification act. His details must appear in the documents.
Subtleties of design
The methodology for organizing interaction between the parties when eliminating heavy work conditions is described in Article 74 of the Labor Code. This involves the signing of an additional agreement. Theoretically, the initiator can be either a boss or a worker. The order is:
- The HR officer prepares draft additional agreements for each employee whose work schedule has changed. The legislation does not provide for a special form for such a document. You should rely on the text of the first contract with the employee (copy the form);
- Employees should be notified of changes in writing.
Workers are notified of the results of inspection activities and relevant changes in a notification form. The document must contain the following information:
- title: “On changing working conditions”;
- personal information of the addressee: Full name;
- date of change in payment;
- the reason for such a decision (you should refer to the certification sheet and Article 74 of the Labor Code);
- proposal: agree with the innovation;
- obtain a different place of application of forces at the same enterprise;
Hint: the notice is issued to the employee against signature or sent by letter with acknowledgment of receipt. Download for viewing and printing:
Article 74 of the Labor Code of the Russian Federation “Changing the terms of an employment contract determined by the parties for reasons related to changes in organizational or technological working conditions”
Article 77 of the Labor Code of the Russian Federation “General grounds for termination of an employment contract”
When it is necessary to agree on new vacation dates with the employee
As noted above, an employee can postpone his vacation if the employer did not pay him vacation pay on time or did not notify him of the start of the vacation on time. In this case, new vacation dates must be agreed upon with the employee.
When determining new vacation dates, attention is paid to ensuring that a situation does not arise when a minor or an employee from hazardous work does not go on vacation for more than 2 years in a row (Part 4 of Article 124 of the Labor Code of the Russian Federation).
Be sure to take this feature into account when answering an employee’s question about whether it is possible to postpone vacation to the next year.
Transfer Notice
If the employer is in a difficult situation of staff shortages, he may ask the employee to postpone his vacation to another date. The employee has the right to disagree. However, in this case, the manager will also refuse to approve the transfer of vacation at the request of the employee. Therefore, we need to negotiate .
To inform an employee about the postponement of his vacation, you can send him a notice . It is better to include space in the notice for written consent or disagreement.
There is no required form for such notification. It is sent in any form. You can use our example vacation rescheduling notification form, which can be downloaded for free:
NOTICE OF POSTPRANGEMENT OF HOLIDAY (SAMPLE)
Order to postpone vacation
An order to postpone vacation is not needed if there was no order to go on vacation. That is, if the employee was notified of the upcoming vacation, and he wrote a request for a postponement.
An order to postpone vacation is needed only when an order to grant vacation has already been issued
EXAMPLE
The employee wrote in advance an application for paid leave for a certain date. She had a court hearing scheduled for this date in another city. The order was prepared, the employee got acquainted with it and was calm that it was on this date that she would be able to take a vacation. However, during the coronavirus 2021 pandemic, the courts worked behind closed doors and sessions were cancelled. Therefore, the employee asked to cancel her leave on the appointed date. Due to the unclear situation regarding the opening of courts, she did not set a new vacation date. In this situation, the HR department should have issued an order canceling the previously issued leave order. But this is only if the head has issued a conciliatory resolution to the application. Since this situation does not oblige you to change, postpone or cancel your vacation.
Do not forget that if the vacation is postponed to a new date, you still need to warn the employee about the new start date of his vacation no later than 2 weeks in advance . If there are less than 2 weeks left before the start date of the new vacation, we still recommend sending the employee a notice of the new vacation dates.
Certificate of refusal to sign the notification
8547 If an employee of an enterprise, upon receiving a notice from the employer, does not want to sign for it, a corresponding document must be left indicating this. The generation of notifications for employees of organizations can occur for a variety of reasons.
In particular, it is necessary to write them in the event of an upcoming staff reduction, planned layoffs, transfer to another position, upcoming vacations, reorganization or liquidation of the company, various changes in the terms of the employment contract, etc.
FILES Any notification, as a rule, is generated in free form, with the exception of situations when the company’s accounting policy has a unified form that is accepted for circulation within the given company.
It must indicate the reason for the circumstances for which it was written and the date from which these events will come into force. At the same time, the period during which it is necessary to notify an employee about a particular event is almost always regulated by law and can be different: sometimes it is at least two months (as in the case of layoffs and reductions) sometimes – two weeks (as in the case of vacation).
Question The collective agreement has expired. From 10/06/17 a new one came into force, and, according to the annex on irregular working hours, the number of days of additional leave became fewer than before.
From 01/01/18, this provision of the collective agreement begins to apply to employees.
The previous additional days are specified in the employees' employment contracts.
vacation. Is it necessary to notify employees (2 months in advance) about reducing the number of additional days of vacation for irregular working hours? If yes, in what form? Or is it enough to conclude a preliminary agreement (2 months in advance) between the employee and the employer?
Answer The change in the collective agreement itself does not entail the need to notify employees about it.
However, in case
