General Audit Department on the issue of payment for overtime in the case of summarized recording of working hours

Basic moments

According to Russian legislation, a standard week for an ordinary employee should not be more than 40 hours (Article 91 of the Labor Code of the Russian Federation).
However, some businesses, departments, or even individual employees fail to comply with the law. Then a certain work regime is introduced in relation to these persons. For them, summarized accounting and a maximum period for compliance with the requirements of the Labor Code are established. For example, a company chooses an accounting period of time equal to one quarter. The calculation of the planned working time fund for a non-hazardous worker looks like this: 57 working days in the 1st quarter of 2021 x 8 hours - 2 pre-holiday hours = 454 hours.

Therefore, the employee should not work more than 456 hours in January-March. In January, he can work 100 hours, in February - 56, and in March - 200. If during the period under review he took a vacation, went on sick leave, or performed government duties or socially oriented activities (for example, served on a jury or donated blood and plasma blood as a donor), for him the planned working time fund is reduced by hours of absence.

If during the period under review he took a vacation, went on sick leave, or performed government duties or a social duty, for him the planned working time fund is reduced by hours of absence.

One year is the maximum period for accounting. Enterprises rarely define a month as the estimated period of time, since this is too short a period for adjusting possible overtime and overtime. All decisions and changes regarding the work shift are reflected in the principles of local labor order (Article 100 of the Labor Code of the Russian Federation). The opinions of employees or the employee council must be taken into account. The procedure for adopting a new accounting of working hours is described in Art. 372 Labor Code of the Russian Federation and 190 Labor Code of the Russian Federation. In case of changes, it is necessary to issue an appropriate order and reflect this fact in the additional agreement to the employment contract.

Features and important nuances

In most cases, a standard work schedule is used, where citizens must perform their duties at least 40 hours a week. A total of five working days are taken into account, followed by weekends. In this case, the estimated shift duration will be up to 8 hours.

Cumulative time tracking assumes that it may be necessary to edit the schedule at any time, even if it has been accepted. The total number of working hours must remain unchanged in any case. You just need to adjust the ratio between working and weekend shifts.

The written consent of the employee himself and an order from management are required.

A work schedule for a former employee is not drawn up when he leaves.

But how to determine the planned number of hours in the first month after dismissal? In this case, using the so-called production calendar helps. Because of this, benefits are often smaller in January compared to other months.

How is overtime paid in such a situation?

There is no separate article in the Labor Code of the Russian Federation that explains the method of payment for overtime hours with summarized accounting. However, there are general rules establishing the minimum level of copayments. Each organization has the right to establish its own calculations, which do not contradict the legally approved rules. In accordance with Art. 152 of the Labor Code of the Russian Federation, additional work time at the request or order of the manager is paid as follows:

For the first 2 hours - at least one and a half times the payment.
For subsequent hours - no less than double the amount of payment.

Letter No. 22-2-3363 of the Ministry of Health and Social Development of the Russian Federation states that all overtime hours in cumulative accounting are calculated at the end of a fixed period of time. However, there are some peculiarities here. Most often, employers act as follows: all additional hours worked are divided by the number of days worked. As the Labor Code of the Russian Federation states, the first two hours of a shift will be paid at one and a half times the rate, the subsequent ones at double. Using the previous example, we will analyze possible processing. Let’s assume that during the period determined by local standards (in our case, the 1st quarter of 2021), the employee worked 512 hours. With a planned working time of 454 hours, overtime will be:

512 hours – 454 hours = 58 hours.

Since there are 57 working days in the first quarter, the daily additional work is equal to:

58 overtime hours / 57 working days = 1.01 overtime hours.

The amount for overworked hours is calculated at one and a half times the rate.

However, this point remains a matter of debate. As mentioned above, Russian legislation does not have a clear principle of payment for additional work in the case of summarized accounting. According to the Ministry of Labor, the first couple of hours of the total amount of overtime is paid at one and a half times the rate, all subsequent hours at double. According to our example, only 2 hours were paid at one and a half times, and all the next 56 hours were paid at double. The position of the Supreme Court is fundamentally different from the opinion of the Ministry of Labor (Decision No. AKPI12-1068, Determination No. APL12-711). It coincides with the principle of payment in most organizations. An example of the calculation is given above.

General Audit Department on the issue of payment for overtime in the case of summarized recording of working hours

Answer In accordance with Article 104 of the Labor Code of the Russian Federation, when, due to the conditions of production (work) for an individual entrepreneur, in the organization as a whole, or when performing certain types of work, the established for this category of workers cannot be met

(including workers engaged in work with harmful and (or) dangerous working conditions)
daily or weekly working hours
,
it is allowed to introduce summarized recording of working hours so that the duration of working hours for the accounting period
(month, quarter and other periods)
does not exceed normal number of working hours
. The accounting period cannot exceed one year, and for recording the working time of workers engaged in work with harmful and (or) dangerous working conditions - three months.

The procedure for introducing summarized recording of working time is established by the internal labor regulations.

Thus, when recording working time in aggregate, the work schedule must be drawn up so that during the accounting period the employee works the standard working time according to the production calendar.

Accordingly, work on a holiday according to the work schedule will be included in the standard working hours for the accounting period.

A similar opinion was expressed, for example, in the Determination of the Moscow City Court dated March 24, 2015 No. 4g/8-745:

“The argument of the cassation appeal about the defendant’s violation of the requirements of Art. 113 of the Labor Code of the Russian Federation, which prohibits work on non-working holidays, also cannot be taken into account, since the defendant carried out activities in the field of public catering, which involves serving the population, and therefore work on weekends and holidays is permitted by law. In addition, in accordance with the norms of the current labor legislation, for employees with summarized working hours, work on holidays is included in the monthly working time norm and they must fulfill this norm, which also includes work on non-working holidays

».

According to Article 153 of the Labor Code of the Russian Federation, work on a day off or a non-working holiday is paid at least double the amount

- for piece workers - at least at double piece rates;

-workers whose work is paid at daily and hourly tariff rates - in the amount of at least double the daily or hourly tariff rate;

—employees receiving salary

(official salary), -
in the amount of at least a single daily or hourly rate
(part of the salary (official salary) for a day or hour of work)
in excess of the salary
(official salary),
if work on a weekend or non-working holiday was carried out within the monthly working time norm
, and in the amount of no less than double the daily or hourly rate (part of the salary (official salary) for a day or hour of work) in excess of the salary (official salary), if the work was performed in excess of the monthly working time standard.

Specific amounts of payment for work on a day off or a non-working holiday may be established by a collective agreement, a local regulatory act adopted taking into account the opinion of the representative body of employees, or an employment contract.

Increased payment is made to all employees for hours actually worked on a weekend or non-working holiday.

. If part of the working day (shift) falls on a weekend or non-working holiday, the hours actually worked on the weekend or non-working holiday (from 0 hours to 24 hours) are paid at an increased rate.

At the request of an employee who worked on a day off or a non-working holiday, he may be given another day of rest. In this case, work on a weekend or a non-working holiday is paid in a single amount, and a day of rest is not subject to payment.

Work on weekends and non-working holidays is prohibited, except in cases provided for by the Labor Code of the Russian Federation (Part 1 of Article 113 of the Labor Code of the Russian Federation).

Since for employees with summarized working hours, work on holidays is included in the standard working hours, such work is paid at least double[1].

Moreover, if part of the working day (shift) falls on a non-working holiday, the hours actually worked on the non-working holiday (from 0 hours to 24 hours) are paid at an increased rate.

If work on a non-working holiday was performed outside the normal working hours, it is recognized as overtime.

In accordance with Article 99 of the Labor Code of the Russian Federation with overtime work

- work performed by an employee at the initiative of the employer outside the working hours established for the employee: daily work (shift), and in the case of cumulative accounting of working hours - in excess of the normal number of working hours for the accounting period.

Thus, if an organization uses summarized working time accounting, then the number of hours worked in excess of the normal number of working hours

according to the production calendar,
determined based on the results of the accounting period
. In this case, at the end of the year.

In general, according to Article 152 of the Civil Code of the Russian Federation, overtime work is paid for the first two hours of work at least one and a half times the rate, for subsequent hours - at least twice the rate. Specific amounts of payment for overtime work may be determined by a collective agreement, local regulations or an employment contract. At the request of the employee, overtime work, instead of increased pay, can be compensated by providing additional rest time, but not less than the time worked overtime.

However, with regard to payment for work in excess of normal working hours, if this work falls on non-working holidays, a special norm established by Article 153 of the Labor Code of the Russian Federation applies.

Thus, from Article 153 of the Labor Code of the Russian Federation it follows that employees receiving a salary

(official salary)
work on a non-working holiday is paid
if the work was performed in excess of the monthly standard working time,
in the amount of at least double the daily or hourly rate
(part of the salary (official salary) for a day or hour of work)
in excess of the salary
(official salary).

Thus, work on a non-working holiday is paid at least double the amount

. Wherein:

- no less than a single part of the salary in excess of the salary, if work on a non-working holiday was carried out within the normal working hours;

- no less than double the salary in excess of the salary, if the work was performed in excess of the standard working hours.

At the same time, when calculating overtime hours, work on holidays performed in excess of normal working hours is not taken into account, since it is already paid in double amount.

— the procedure for calculating an employee’s individual norm for cumulative accounting of working time (year) at the end of the accounting period.

As stated above, in accordance with Article 104 of the Labor Code of the Russian Federation, when, according to the conditions of production (work) for an individual entrepreneur, in the organization as a whole, or when performing certain types of work, the established for this category of workers cannot be met

The normal number of working hours for the accounting period is determined based on the weekly working hours established for this category of workers. For employees working part-time (shift) and (or) part-time week, the normal number of working hours for the accounting period is reduced accordingly.

The procedure for introducing summarized recording of working time is established by the internal labor regulations.

The introduction of summarized accounting allows you to adjust the length of time worked within the accounting period if it deviates from the established norm, that is, overtime on some days is compensated by underwork on others.

When maintaining summarized working time records, the Organization must establish an accounting period: month, quarter or year. In this case, the employee’s work schedule must be drawn up in such a way that the duration of the employee’s work during the accounting period does not exceed the normal number of working hours.

The Letter of the Federal Service for Labor and Employment dated 06/08/07 No. 1922-6 states the following:

“The Legal Department of the Federal Service for Labor and Employment reviewed the appeal dated May 23, 2007, b/n about the procedure for calculating earnings for calculating leave for employees working on a 24-hour schedule.

We report the following.

When establishing the specified operating mode, as a rule, summarized recording of working time is used

, which is allowed in organizations or when performing certain types of work, where, due to production (work) conditions, the daily or weekly working hours established for this category of workers cannot be observed.
In this case, the duration of working hours for the accounting period (month, quarter, etc.) should not exceed the normal number of working hours.
The accounting period cannot exceed one year. The procedure for introducing summarized recording of working time is established by the internal labor regulations of the organization.”

Let us note that the Procedure for calculating the norm of working time for certain calendar periods of time (month, quarter, year) depending on the duration of working hours per week was approved by Order of the Ministry of Health and Social Development of Russia dated August 13, 2009 No. 588n (hereinafter referred to as Procedure No. 588n).

In accordance with paragraph 1 of Order No. 588n, the standard working time for certain calendar periods of time is calculated according to the calculated schedule of a five-day work week with two days off on Saturday and Sunday

based on the duration of daily work (shift):

with a 40-hour work week - 8 hours;

if the working week is less than 40 hours, the number of hours obtained by dividing the established working week by five days.

The length of the working day or shift immediately preceding a non-working holiday is reduced by one hour.

In accordance with Part 2 of Article 112 of the Labor Code of the Russian Federation, if a day off coincides with a non-working holiday, the day off is transferred to the next working day after the holiday.

In cases where, in accordance with a decision of the Government of the Russian Federation, a day off is transferred to a working day, the duration of work on this day (former day off) must correspond to the duration of the working day to which the day off was transferred.

The standard working time calculated in this order applies to all work and rest regimes.

Thus, the standard working time for a particular month is calculated as follows:

:
the length of the working week (40, 39, 36, 30, 24, etc. hours) is divided by 5, multiplied by the number of working days according to the calendar of a five-day working week of a particular month, and the number of hours in a given month is subtracted from the resulting number of hours, by which reduces working hours on the eve of non-working holidays.
The standard working time for the year as a whole is calculated in a similar manner.

: the length of the working week (40, 39, 36, 30, 24, etc. hours) is divided by 5, multiplied by the number of working days according to the calendar of a five-day working week per year, and from the resulting number of hours the number of hours in a given year is subtracted by which reduces working hours on the eve of non-working holidays.

Please note that the Production Calendar is compiled taking into account the norms of labor legislation, including the above Order No. 588n, and it contains information:

- about working, non-working, holidays;

- on the standard working hours established for the month, quarter and year for 40-, 36- and 24-hour working weeks.

In other words, the Production Calendar, in fact, clearly displays the information set out in Order No. 588n.

Thus, in the situation under consideration, when determining the standard working time, including in summary accounting, the Organization has the right to be guided by the production calendar.

So, for example, if the Organization selects a year as the accounting period, then the employee’s work schedule must be drawn up in such a way that the employee works no more than 1,973 hours in 2021 (it is allowed that in one month the employee overworks the norm, established by the production calendar, and in another - was not finalized).

— Does the withholding of vacation compensation affect the calculation of overtime upon dismissal?

As follows from the clarifications received, the employee quits at the end of November. At the same time, at the time of his dismissal, he had accumulated a certain amount of overtime hours. This year, this employee was on vacation twice, the second time with advance payment. Upon dismissal, the Organization withholds from the employee vacation pay related to the vacation provided in advance.

In accordance with Article 122 of the Labor Code of the Russian Federation, paid leave must be provided to the employee annually.

The right to use vacation for the first year of work arises for the employee after six months of continuous work with this employer. By agreement of the parties, paid leave may be granted to the employee before the expiration of six months.

Leave for the second and subsequent years of work can be granted at any time of the working year in accordance with the order of provision of annual paid leave established by a given employer.

Thus, vacation is granted to the employee in accordance with the vacation schedule. In this case, the schedule may provide for the provision of vacations in advance.

According to Article 127 of the Labor Code of the Russian Federation, upon dismissal, an employee is paid monetary compensation for all unused vacations.

Moreover, in the general case, when an employee is dismissed before the end of the working year for which he has already received annual paid leave, the employer has the right to deduct from the employee’s salary the debt for unworked vacation days[2].

Thus, in the case under consideration, the employer has the obligation to pay the employee overtime hours and the right to withhold the debt for unworked vacation.

As stated above, overtime work in the cumulative accounting of working hours is work performed by an employee at the initiative of the employer in excess of the normal number of working hours for the accounting period (Article 99 of the Labor Code of the Russian Federation).

Overtime work is paid for the first two hours of work at least one and a half times the rate, for subsequent hours - at least twice the rate (Article 152 of the Labor Code of the Russian Federation).

Thus, with the summarized recording of working time, the calculation of overtime hours is carried out after the end of the accounting period. In this case, the actual hours worked are taken into account when calculating.

In turn, vacations are the time when an employee withdraws from performing his job duties (Articles 106-107 of the Labor Code of the Russian Federation).

Accordingly, the time spent on vacation is not taken into account when determining the actual time worked.

Taking into account the above, in the situation under consideration, in order to make payments to the dismissed employee of the Organization, it is necessary to determine the number of hours actually worked in 2017 and pay them in accordance with the norms of the Labor Code of the Russian Federation.

At the same time, the Organization has the right to withhold from the resulting amount of earnings the employee’s debt for unworked vacation.

College of Tax Consultants, December 15, 2021

[1] Since we do not have other information, when answering we proceed from the fact that employees’ salaries are set.

[2] Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of part one of Article 77 or paragraphs 1, 2 or 4 of part one of Article 81, paragraphs 1, 2, 5, 6 and 7 of Article 83 of the Labor Code of the Russian Federation.

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Holidays and processing

Holidays are not excluded from the monthly work schedule (in the case of a rotating schedule). At the legislative level there are no restrictions in this regard. A person working on a consolidated account does not receive notification of an upcoming holiday. This is the only difference from the work of a regular employee.

Payment is calculated according to the standard scheme - at least double the amount (Article 153 of the Labor Code of the Russian Federation). If an employee’s holiday work already exceeds the planned working time for the accounting period, then he will receive an additional 2 amounts of remuneration above the established salary. Overtime hours are not paid because the employee will already receive double pay for that shift (on top of the regular rate).

Reworking working hours during a shift schedule

Having a shift schedule implies an unequal number of hours worked per month. It is impossible for shift workers to set a 40-hour week, and it is often difficult for them to reach the required monthly limit. The law allows the employer to enter a cumulative count of hours worked. Payment for overtime hours is made at the end of a certain period. Therefore, according to the law, the period of summarized accounting should not exceed 12 months. When calculating the hours of employees working in hazardous or hazardous production areas, it is allowed to keep summarized records for one quarter and no more.

If an employee leaves before the end of the pay period

If the employee is forced to resign before the end of the fixed period of time, then the permissible measure of the working time fund is adjusted. Most often, the number of hours required to work is calculated from the first day of the temporary period to the employee’s last working day. Generally accepted calculation rules state that days of official absence of a working citizen (vacation, sick leave, blood donation, etc.) are subtracted from the norm. If during a specified period of time a subordinate has worked more than the norm, his payslip includes overtime payment according to the general principle. This methodology is supported by the Ministry of Labor.

In contrast, the Supreme Court emphasizes that additional time worked can be calculated only after the end of the established period of time. According to our example, if an employee leaves during the 1st quarter of 2021, he is not owed money for additional time worked. This is due to the fact that additional work in one month can be compensated by days off in the next. True additional work is only visible at the end of the quarter.

Summarized accounting is a very convenient method of recording and processing working hours. However, the question of payment of wages for overtime hours remains open. So, when choosing a method of payment for overtime, the best way to avoid disputes is to fix the calculation method in the Regulations on remuneration.

Introduction of summarized accounting

It is important to note that the introduction of summarized accounting is mandatory for certain workers and for rotational employment, with an accounting period of a month and a quarter for certain positions. In other cases, the accounting period is established by the company independently and is prescribed in internal regulatory documents. This may be a monthly, quarterly or annual accounting period. In this case, an employee may work more or less than the working hours established by law in any month.

The main essence of summarized accounting is that at the end of the period the employee must work the standard working hours established by law. For example, in 2021 - 1973 hours per annual accounting period with a 40-hour work week. Work schedules are drawn up for the accounting period within the established norm. The longer the period, the greater the chance for the employer to eliminate the possibility of overtime work.

note

In order to correctly process wages on holidays and weekends, you need to determine whether the holiday is a scheduled working day or a weekend. If this is a working holiday, then it is reflected in the report card as “I” – Attendance, and the minimum additional payment for this day must be made in a single amount, since there are no special deviations for summarized accounting in Article 153 of the Labor Code of the Russian Federation.

Employers face the main difficulties at the end of the accounting period, when they need to compare the actually worked time of each employee with the legal norm. Here it should be taken into account that the regulated norm excludes the time during which the employee did not fulfill his job duties for justified reasons. This may be annual or educational leave, leave without pay, temporary disability, a period of performing state and public duties. Thus, the reasons should not be related to avoidance of work, for example, absenteeism or downtime due to the fault of the employee. The legal standard of working time in these cases is reduced only by the number of hours of such absence that occurred during working hours according to the employee’s schedule, that is, by the number of hours missed by the specialist according to his work schedule.

How is summarized working time recording used?

Remember, SURV stands for summarized recording of working time.

There are organizations with such peculiarities of labor organization that do not allow establishing daily or weekly working hours, for example, seasonal production. But the employer is obliged to regularly count hours worked in any case.

For such enterprises, the Labor Code of the Russian Federation provides for a special accounting regime - summarized.

No matter how labor hours are distributed over the course of a week, ten days, month, quarter, their total number for an accounting period that does not exceed a year must comply with the standards established by law.

Let's consider the nuances regarding the schedule of such accounting, and also analyze how it will be implemented during a shift work schedule. Let us touch upon the issues of calculating remuneration for labor using this accounting method, including in situations where there was overtime. Let us show how working hours are calculated when summing up using a specific example.