Irregular work schedules are a reality for representatives of many professions. At the same time, it is not only first responders who are forced to work at night. Nowadays, night work is important for logistics workers, security guards and watchmen, city street cleaners, pharmacists at 24-hour pharmacies, gas station operators and representatives of dozens of other professions.
When applying for a new job, a person may not even suspect that one day he will have to go on the night shift or stay late at work. In today’s text, we will tell you from what hour “night work” is considered, whether the employer is obliged to pay extra for off-hours, who is not allowed to work night shifts at all, and whether it is realistic to refuse an inconvenient schedule by law.
Night work time: from what hour is it counted?
Night work according to the Labor Code of the Russian Federation
The operating mode of enterprises in many sectors of modern production and the service sector dictates the expediency of a round-the-clock work schedule.
In this regard, there is a need for legal regulation of night work of employees providing such a schedule. The Labor Code defines the time between 22:00 and 6:00 as night time (Article 96). In general, the legislator sets the duration of night work to be 1 hour less than normal. This reduction does not require working out in subsequent periods. However, the Labor Code of the Russian Federation provides for situations where the duration of night work can be equal to normal:
- employee employment in a shortened work week;
- hiring an employee to work at night;
- objective requirements of working conditions or shift work with a 6-day working week.
An example of calculating payment for night work was given by ConsultantPlus experts. Get trial access to the system and upgrade to the Ready Solution for free.
How to draw up a consent
There is no standard form for such a document; it can be compiled in any form. But, nevertheless, certain requirements for text and design must be observed.
ATTENTION! You cannot allow a person to work at night without consent.
The employee writes a document in which he indicates his data and consent to work on the night shift (it falls from 10 p.m. to 6 a.m.). A medical certificate is attached to the written consent, which will confirm the possibility of night work. The employee must sign and number this consent.
The consent is then reviewed by management and the HR department. The HR department draws up an order to involve this employee in activities on the night shift.
Night work is not allowed: legislative restrictions
Legislation limits the possibility of night work or introduces special permitting procedures for certain workers due to their age, marital status or health status.
It is prohibited to use the labor of pregnant women and adolescents under 18 years of age at night (Article 96 of the Labor Code of the Russian Federation).
With the written consent of the employee, the employer may use the following labor during night employment:
- women who have children under 3 years of age;
- disabled people (for this group there must be no medical contraindications);
- single parents and guardians with children under 5 years of age;
- parents with disabled children;
- workers who, according to a medical certificate, are caring for seriously ill family members.
Workers from the listed groups have the right to refuse night work. And if they agree, they must confirm in writing that they have been notified by their employer of their legal right not to work at night.
In the timesheet, indicate the letter code “H” or the numeric “02”; in the cell below, indicate the number of hours worked at night.
Payment for night hours during a shift work schedule: legal norms, nuances
Salaries for work performed between 10 p.m. and 6 p.m. are paid at an increased rate (Article 154 of the Labor Code of the Russian Federation). The legislator establishes the following norm: an hour of working time at night should cost more than an hour of work under normal daytime conditions. The minimum coefficient of increase in pay is established by the Government of the Russian Federation based on the recommendations of specialists from the Russian Tripartite Commission for the Regulation of Social and Labor Relations.
Today, the coefficient is at least 20% of the amount of payment for an hour of daytime work for each night hour in accordance with Decree of the Government of the Russian Federation dated July 22, 2008 No. 554.
Important! If the employer is willing to compensate for a large amount of additional payment, this should be reflected in the collective agreement.
Thus, the legislator establishes a two-pronged approach to the principle of calculating remuneration for work at night:
- on the one hand, the state guarantees a minimum level of extra pay for night work;
- on the other hand, the legislator invites the parties to labor relations to agree on the use of higher additional payments, enshrining such an agreement in the local regulatory legal act.
The following is accepted as the basis for calculating the amount of remuneration for shift work:
- monthly salary;
- or daily (hourly) rate.
When, when working on a shift, the accounting period for the summarized accounting of working hours is 1 month, the employer, as a rule, uses the monthly salary for calculations. In this situation, the number of hours worked, which should not differ from the norm according to the production calendar, as well as the number of hours worked in conditions other than normal (for example, at night) are subject to separate control.
For more information about recording working hours, see the article “Working time sheet - form T-13 (form).”
If the accounting period is more than 1 month, for example 2 months, then it is quite possible that in the 1st month of work the normal working hours will not be observed, and the deviation will be compensated by working hours in the 2nd month, so that the duration of the actual working hours for the accounting period the period was normal (Article 104 of the Labor Code of the Russian Federation).
If the salary system is used for calculation, each month is paid in the same amount equal to the monthly salary. An employee receives the same reward for different amounts of work, which is wrong. The choice of calculation principle based on the daily (hourly) rate in this case is more logical.
For the working time schedule and the procedure for drawing it up, see the article “How to correctly draw up a working time schedule?”
Thus, the rules for calculating payment for night hours during a shift work schedule are as follows:
- based on the data from the working time sheet, the number of night hours worked is recorded (it is important to note that the calculation takes into account the number of hours falling in the period from 22 to 6 o’clock);
- the cost of an hour is determined based on the adopted system;
- an increasing factor is applied, which is at least 20% of the cost of an hour of daily labor (its actual amount is determined in the employer’s legal regulations).
Fines for breaking silence
According to the latest amendments to the law, people who exceed the permissible volume at a certain time will be punished financially.
Monetary fines will have to be paid not only by ordinary residents, but also by organizations that do not monitor the noise level in the building where they are located.
For the first violation, law enforcement agencies usually limit themselves to a warning, but for a repeated violation, they issue a fine. Today the following sanctions have been established:
- primary recovery from 1 to 3 thousand rubles. (determined based on complaints from neighbors and excessive volume levels);
- the second violation will cost 4 thousand rubles;
- for the third time, law enforcement agencies will issue a fine of 5 thousand rubles.
Read also: Which products cannot be returned
These amounts apply to residents of apartment buildings. But legal entities cannot get by with such small fines. They will have to pay several tens of thousands of rubles for breaking the silence. The maximum amount of recovery is 150 thousand rubles.
Where to complain about violators
If neighbors do not respond to requests to turn down the music volume or stop repair work, you need to act decisively. First of all, you will need to stock up on evidence. This may be an audio recording, but it is best to provide a video recording to confirm that the volume was exceeded in a particular apartment.
You will need the video when you call the local police officer, since by the time he arrives the neighbors may have stopped making noise. A law enforcement official must submit a written complaint. After the investigation, the violator will be fined.
You can also contact Rospotrebnadzor, the police and even the court. If there are witnesses and video footage confirming the violation, you have every chance to punish the neighbor who constantly harasses you with noise at night, and even recover money from him for the moral damage suffered.
Follow the rules established by law so you don't suddenly see a notice of an upcoming trial in your mailbox. Not all neighbors are ready to decisively fight troublemakers, but if the volume level is constantly exceeded, the number of people willing to write a complaint will increase.
How night work is paid: actual additional payments for work in industries
In the current practice of paying for work at night, in many industries industry agreements are used, which establish a surcharge coefficient of 40% (federal industry agreement on the road sector, mechanical engineering complex, etc.).
And although this contradicts the literal reading of the norm of the Labor Code of the Russian Federation, which indicates that the source of establishing additional pay can be a collective agreement, it is important to understand that the agreement protects the rights of the employee and will certainly be taken into account in the event of a labor dispute.
How to pay for a night shift worked by an employee on a holiday or day off? The answer to this question is in ConsultantPlus. Get trial access to the system and get the opinion of K+ experts for free.
List of diseases for which night shifts are contraindicated
— — Refusing to satisfy the claims, the court, having established that the plaintiff did not present any medical documents provided for by law on the presence of contraindications for working on the night shift to the employer, reasonably came to the conclusion that the employer had no grounds for resolving questions about the establishment of the plaintiff mode of work in the position held on the first (day) shift or transfer to another job for medical reasons.
The court stated that the medical certificates provided by the plaintiff stating that he has contraindications for working on the night shift are in the form of recommendations and are not a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation (Determination of the Voronezh Regional Court dated 02.02.2012 N 33-503). Conclusion. Taking into account the provisions of Art. Certificates are issued by the attending physician or other medical specialists directly involved in the medical examination and treatment of a citizen, based on entries in the citizen’s medical records or based on the results of a medical examination in cases where such an examination is necessary.
Thus, it can be noted that if the medical report submitted by your employee meets the above requirements, then it is binding on the employer.
The contraindications themselves are determined in the medical institution and it is not within the employer’s competence to determine contraindications for the employee’s specific activities. On the question: Which body (medical) has the right to determine whether an employee is fit to perform a particular job?
As stated in detail just above, this is a medical organization (including a clinic).
Info By Order of the Ministry of Health and Social Development of Russia dated May 2, 2012 N 441n.
According to this Procedure, certificates may contain, inter alia, information about the presence (absence) of medical indications
Results
Night work is classified by the legislator as work performed in conditions other than normal, therefore, the performance of labor duties during the period established by the Labor Code of the Russian Federation as night time is paid at an increased rate.
The legislator regulates the minimum amount of additional pay for night work. The actual amount of the additional payment is established in the collective agreement between the employer and employees.
Sources:
- Labor Code of the Russian Federation
- Decree of the Government of the Russian Federation dated July 22, 2008 No. 554
You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.
