What will happen if I don’t go to subbotnik? Can you be punished for not participating in a subbotnik? In what cases is a subbotnik held?
Many have read about the Saratov subbotnik, when female teachers were forced to remove snow in twenty-degree frost. How legal are the so-called “subbotniks”, and are employees required to take part in them?
The story about teachers clearing snow provoked widespread public discontent, and the official responsible for organizing the scandalous cleanup was fired. Let's figure out what a subbotnik is, whether it is necessary to participate in it, and what will happen to those who do not want to.
What is a subbotnik
The legislation does not contain such a term as “subbotnik”. But, based on current practice, the following definition can be derived.
Subbotnik is a voluntary and free labor in the interests of the employer or other third parties during free time from the main (paid) work. Subbotniks can be organized up to several times a year. As a rule, such events are held on weekends.
During cleanup days, employees clean up areas, remove garbage, and put their own and other people’s workplaces in order. They also engage in other work that is useful to someone, which is in no way related to their direct work functions.
Going to a cleanup day is a personal matter for everyone and is usually positioned as a voluntary action. But sometimes this is only declared, but in reality, employees who “missed” the subbotnik may be subject to various kinds sanctions. For example, depriving you of a bonus or infringing you in some other way.
How legal is all this? Let's turn to the Labor Code of the Russian Federation.
Subbotnik from the point of view of the law
By general rule, work on weekends and non-working days holidays prohibited. However, such work is still possible when there is an urgent need to do unforeseen work, on the urgent implementation of which the normal work of an organization or individual entrepreneur depends (Article 113 of the Labor Code of the Russian Federation).
In these cases, the employer, according to Art. 153 of the Labor Code of the Russian Federation, must:
- obtain written consent from employees to work on weekends,
- pay double for such work.
Without the consent of employees, they cannot be hired to work on weekends. Moreover, they should not work for free.
Cleaning the area: covered with snow
Forced labor is prohibited in our country. Everyone has the right to work in conditions that meet safety and hygiene requirements, as well as to remuneration for work (Article 37 of the Constitution of the Russian Federation).
It’s another matter if cleanup days are prescribed in the collective agreement and are held during working hours. Let's say your organization needs to remove snow. During working hours, volunteers are sought who are willing to swing a shovel.
If a couple of physical education teachers had voluntarily come out to clear snow during the sensational Saratov subbotnik, and they had been paid extra, according to the Labor Code of the Russian Federation, then there would have been no scandal.
If an employer says that payment for subbotniks is not provided for by law, he is misleading you.
Article 151 of the Labor Code of the Russian Federation:
When combining professions (positions), expanding service areas, increasing the volume of work or performing the duties of a temporarily absent employee without release from the work specified employment contract, the employee is paid additionally.
The amount of additional payment is established by agreement of the parties to the employment contract, taking into account the content and (or) volume of additional work (Article 60.2 of the Labor Code of the Russian Federation).
Whennot requiredemployee consent to work on days off
Art. 113 of the Labor Code of the Russian Federation stipulates a number of cases when an employer has the right to involve employees in work on weekends and non-working holidays without their consent. This is permitted in the following cases:
- to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, industrial accident or natural disaster;
- to prevent accidents, destruction or damage to the employer’s property, state or municipal property;
- to perform work the need for which is due to the introduction of a state of emergency or martial law, as well as urgent work in emergency circumstances, that is, in the event of a disaster or threat of disaster.
In all other cases, employment on weekends and non-working holidays is permitted only with the written consent of the employee.
That is, if your organization wants to organize cleaning of the territory by its employees on Saturday, then you need to obtain the written consent of everyone who will go to the cleanup. Otherwise, the labor inspectorate will have questions for the company when forced labor on the weekend becomes known.
Subbotnik: how to do it in 2019
Voluntary and free work for the benefit of the employer is a thing of the past. Those who want to work for free in our new reality volunteer on projects that interest them personally. The rest don't want to work for free.
But sometimes in organizations there is a need to perform some work on weekends, and there may not be special positions for such work at all. What should an employer do so as not to break the law, not cause discontent among employees and the labor inspectorate, but still get the work done?
An employer can involve its employees in so-called subbotniks, but subject to several mandatory conditions:
- work on a subbotnik must be stipulated in local regulations (for example, in a collective agreement signed by employees);
- subbotnik, free work is nonsense and a direct violation of the Labor Code of the Russian Federation;
- The subbotnik must be held during working hours (Article 60.2 of the Labor Code of the Russian Federation allows for the possibility of involving employees in extra work not in their specialty during a work shift, and such work is paid additionally);
- if the cleanup is carried out on a day off, then the work is paid double;
- in all cases, to conduct a cleanup day, the written consent of the employees is required, and without such consent, the cleanup day is impossible -;
- The employer does not have the right to apply any sanctions for refusing to participate in the subbotnik.
"Housing and communal services: accounting and taxation", 2010, N 10
FINE FOR NOT ATTENDING SUBBOTTON DAY
The homeowners' association decided to charge the apartment building residents a fine for not showing up for cleanup work. Is such an initiative legal? How can it be legalized? Is there any reason to levy such a fine on all property owners or only on HOA members?
The law does not oblige the owners of premises in an apartment building to attend cleanup days. Consequently, liability for failure to attend cleanup work has not been established. To determine whether the HOA has the right to independently establish monetary sanctions, let us turn to the concept of a fine. In accordance with paragraph 1 of Art. 330 of the Civil Code of the Russian Federation, a penalty (fine, penalty) is a sum of money determined by law or contract, which the debtor is obliged to pay to the creditor in the event of non-fulfillment or improper fulfillment of an obligation, for example, in the event of a delay in its fulfillment. Upon a claim for payment of a penalty, the creditor is not required to prove that he suffered losses. From civil legislation it follows that a fine can be established not only for violation legal norms, but also for failure to fulfill obligations under the contract.
Despite the fact that according to paragraph 2 of Art. 138 Housing Code of the Russian Federation HOAs are obliged to enter into agreements on the maintenance and repair of common property in apartment building With the owners of premises in an apartment building who are not members of the partnership, the relationship of the partnership with the residents is not always regulated by an agreement. In addition, in accordance with the norms of housing legislation, the HOA is not obliged to enter into agreements with its members; their relations are built on the basis of the HOA charter. How, in this case, can we legitimize penalties for absenteeism?
Clause 1 part 1 art. 137 of the RF Housing Code states that a partnership has the right to conclude, in accordance with the law, an agreement for the management of an apartment building, as well as agreements on the maintenance and repair of common property in an apartment building, agreements on the provision of utility services and other agreements in the interests of members of the partnership. It seems that the HOA can enter into some kind of agreement with the owners of premises in an apartment building, establishing the obligation of residents to go to cleanup work and responsibility for failure to comply in the form of penalties.
The question arises: can the consolidation of a similar obligation in the charter of the partnership or in the decision of the general meeting of HOA members be considered such an agreement? On the one hand, according to civil law, a fine can be established either by law or by agreement (clause 1 of Article 330 of the Civil Code of the Russian Federation). A contract, in turn, recognizes an agreement between two or more persons to establish, change or terminate civil rights and obligations (clause 1 of Article 420 of the Civil Code of the Russian Federation). In this case, the contract is considered concluded if an agreement is reached between the parties on all essential terms (clause 1 of Article 432 of the Civil Code of the Russian Federation). Consequently, the HOA must agree on the terms of application of penalties for failure to attend cleanup work with each resident individually. On the other hand, in accordance with paragraph 4 of Art. 420 of the Civil Code of the Russian Federation, to contracts concluded by more than two parties, the general provisions on the contract apply, unless this contradicts the multilateral nature of such contracts. And as a result, they are not applied if it contradicts their character.
Let's return to the situation at hand. The decisions of the general meeting of members of the partnership apply to all members of the HOA without exception. Even if the owner did not take part in the vote or voted against it, he is forced to obey the will of the majority. In this way, the owners ensure the proper maintenance of a single object - an apartment building. It seems that collecting a fine for failure to attend cleanup work only from those residents with whom a contract (agreement) has been concluded contradicts the nature of the relationship itself regarding the management of an apartment building. We insist that penalties can be legalized at a general meeting of members of the partnership. Additionally, the general meeting of HOA members has the right to decide to make appropriate changes to the charter of the partnership (clause 1, clause 2, article 145 of the Housing Code of the Russian Federation).
Even after the fine has been “legalized” by a decision of the general meeting of members of the partnership, the question remains about the possibility of collecting a fine from owners of premises who are not members of the HOA. The basis for collecting a fine from such owners may be the presence of a decision of the general meeting of premises owners or a corresponding condition in the agreement on the maintenance and repair of common property in an apartment building. The second option seems more preferable and less risky.
No less important is the question of where the money received from residents as a fine for not showing up for cleanup will be sent. The HOA should make an appropriate decision in this regard. It seems that it makes sense to form a fund and direct funds to priority needs, for example, to repair common property in the house. We remind you that making a decision on the formation of special partnership funds falls within the competence of the general meeting of HOA members (clause 5, clause 2, article 145 of the Housing Code of the Russian Federation).
G.Yu. Sharikova
Journal expert
"Department of Housing and Utilities:
accounting and taxation"
Signed for seal
08.10.2010
Sergey Bolshakov, economist
Many organizations will soon begin preparations for the annual republican cleanup.
In the magazine “I am a HR Specialist”, 2011, No. 12, we already wrote about the legal aspects of holding this event. Since the issue of holding a cleanup day from the perspective of labor legislation remains open, we suggest that you once again pay attention to the important points when holding this event.
Labor legislation does not define the concept of a subbotnik and the procedure for workers’ participation in it. In this regard, many questions arise in practice, in particular: will participation in a cleanup day be counted as working time? Is it necessary to compensate for such work in the manner established for work on a day off, and will an employee who refuses to participate in the cleanup day be subject to disciplinary or financial liability?
In what cases is a subbotnik held?
The cleanup can be initiated:
By the government - by making an appropriate decision. For example, in 2011, for these purposes, Resolution of the Council of Ministers of the Republic of Belarus dated 04/01/2011 No. 423 “On holding a republican cleanup day in 2011” was approved. Such subbotniks, as a rule, are timed to coincide with some memorable dates, for example, the anniversary of the Victory in the Great Patriotic War Patriotic War, or aimed at solving specific socio-economic problems;
- local authorities, for example in connection with the Dozhinki festival;
- by the administration of the organization, for example, for the purpose of landscaping the territory of the organization, etc.
The legislation does not contain any specifics regarding the organization of a subbotnik depending on its initiator.
The procedure for holding a subbotnik
Clean-up work is carried out both at workplaces and in other places established by the employer. The location of the cleanup must be determined in the order (instruction) of the employer.
The legislation does not provide restrictions on the number, duration and time of subbotniks. There is information about dozens of cleanup days being held in individual organizations republics.
It must be remembered that it is prohibited to apply to employees:
1) means of political influence or education, or as a measure of punishment for the presence or expression political views or ideological beliefs contrary to the established political, social or economic system;
2) method of mobilization and use work force for economic development needs;
3) means of maintaining labor discipline;
4) means of punishment for participation in strikes.
During the subbotnik, the employee is involved in performing functions not provided for in his employment contract
Please note that the legislation establishes restrictions on the duration of the transfer due to production needs (part three of Article 33 of the Labor Code of the Republic of Belarus (hereinafter referred to as the Labor Code)). The duration of such a transfer cannot be more than 1 month, but the number of such transfers during a calendar year is not limited: it can be used in each case when a production need arises for the employer.
The list of cases of production necessity contained in the said norm of legislation is open, since it contains the evaluative concept of “other exceptional cases”, which is specified in judicial practice taking into account the circumstances of the case. In judicial practice, exceptional cases are understood as situations when the employer does not have the opportunity, in any other way, except by transferring the employee to work not stipulated by the employment contract, to prevent or eliminate a natural disaster or other cases of production necessity.
According to judicial practice, exceptional cases do not include the need to fulfill contractual obligations, provide assistance to other employers, carry out planned work, or shortcomings in the organization of workers’ work.
If an employee is invited to participate in a subbotnik, then similar cases are also temporary transfers, but there is no production need, which is provided for in part two of Art. 33 TK. Thus, there is no legal basis for the mandatory transfer of the employee in this case, and therefore the employee’s refusal to participate in the subbotnik should not be considered a violation of labor discipline.
Working hours when organizing a cleanup day
Working time is considered to be the time during which the employee, in accordance with labor agreements, collective agreements, internal labor regulations, is required to be at the workplace and perform his job duties.
(Article 110 of the Labor Code).
Working time is standardized by establishing norms for its duration throughout the calendar week (working week) and during the day (working day, work shift). Working hours are regulated by the employer, taking into account the restrictions established by law and the collective agreement.
All employees are provided with days off - weekly continuous rest (Article 136 of the Labor Code).
With a 5-day working week, 2 days off are provided every calendar week, except for those weeks when on one of the Saturdays the schedule provides for compensation of shortfalls up to the weekly standard of working time. In such a week, 1 day off is provided.
With a 6-day work week, 1 day off is provided.
The general day off is Sunday. In exceptional cases, Sunday may be declared a working day by the President.
The second day off in a 5-day working week is established in the internal labor regulations or in the work schedule (shift), unless otherwise determined by agreement of the parties.
Both days off are usually provided in a row.
All employees have the right to days off (Article 137 of the Labor Code).
The employee can use days off at his own discretion.
In this case, absenteeism from work on a day off cannot be considered absenteeism.
Work on weekends is permitted at the suggestion of the employer and only with the consent of the employee or at the initiative of the employee with the consent of the employer, except for the cases provided for in Art. 143 TK.
Thus, the employer has the right to attract an employee to work on his day off, established by the internal labor regulations or work schedule (shift), without the employee’s consent in the following exceptional cases:
1) to prevent a catastrophe, industrial accident, to perform work necessary to immediately eliminate their consequences or the consequences of a natural disaster;
2) preventing accidents;
3) eliminating random or unexpected circumstances that may disrupt or have disrupted the normal functioning of water supply, gas supply, heating, lighting, sewerage, transport, communications;
4) provision of emergency medical care by medical personnel.
Taking into account the above, the employee’s refusal to participate in the cleanup cannot be considered a violation, and disciplinary measures cannot be applied to the employee for this.
Who can participate in the cleanup?
It is prohibited to involve pregnant women and women with children under 3 years of age (part one of Article 263 of the Labor Code), and workers under 18 years of age (Article 276 of the Labor Code) to work on weekends.
Thus, it is unlawful to involve such workers in working on a subbotnik on a day off.
It is also necessary to obtain written consent from female workers with children aged 3 to 14 years (disabled children under 18 years old) and disabled workers (unless work is prohibited for them in accordance with medical indications), before such workers begin a cleanup day on a day off (part three of Article 263 of the Labor Code).
Non-standard cases of holding a subbotnik
Some organizations initiate holding a cleanup day outside of working hours, i.e. after work.
We believe that in this case the order should clearly indicate the procedure for attracting workers to cleanup work outside the working day.
Participation in a subbotnik, as stated above, is a social activity, not a labor activity, and is based on different principles. It cannot be considered as fulfillment of an employment contract and, accordingly, lead to overtime working time.
The procedure for registering a subbotnik
Conducting a subbotnik must be formalized by an order for the main activity.
We believe that the order will have a recommendatory nature.
When a subbotnik is initiated by the Government, it is always carried out on a voluntary basis. Thus, in the decision of the Council of Ministers on this matter, republican bodies government controlled, state organizations subordinate to the Government, local executive and administrative bodies, and other organizations are recommended to hold a republican cleanup day at their workplaces on a voluntary basis or to carry out landscaping and bringing into proper condition public gardens, parks, other public recreation areas, roadways of streets, sidewalks and courtyard areas .
Thus, the organization transfers exactly the money earned during the republican subbotnik.
For a sample order on organizing and conducting a subbotnik, see the “Useful Documentation” section on p. 22 magazines.
If Saturday is a working day for employees
If Saturday is a working day in the organization, the employer withholds funds from wages employees and their subsequent transfer is carried out on a voluntary basis in amounts determined by the teams themselves and the employee. In other words, employees of the enterprise must express a desire or at least agree to the deduction of funds from their wages. Otherwise, the employer does not have the right to make a deduction and is obliged to pay money to the employee, and not transfer it to the accounts of the initiators of the subbotnik.
Often a situation arises in organizations: a cleanup day is scheduled, the day is a day off, and management forces you to take part. Naturally, workers have a question: “Is this state of affairs legal?” Let's figure this out together.
First, remember that forced labor is prohibited by the Constitution Russian Federation. This is one of the basic principles of labor organization in our country. Secondly, according to Russian labor legislation, weekends are the time when a person is free from performing his direct labor functions, and accordingly, he disposes of them at his own will and discretion. In other words, It is possible to involve employees in performing work on such days only after receiving their written consent. But as always: there are exceptions to all rules. In this case, in emergency situations (disasters, accidents, state of emergency), all employees are required to go to work. Of course, subbotniks do not belong to this number of events.
Participation in the cleanup can only be voluntary. Therefore, even if management plans to fine workers for non-participation in this event, such actions are illegal in advance. So, even if the employer refers to the fact that the employees were warned by the relevant order, we remind you that local acts of the organization that worsen the situation of their employees in comparison with the norms of the current legislation are not subject to application. Thus, a local order on taking part in a cleanup day on a day off is not subject to mandatory execution.
The only “way” to oblige an employee to participate in a subbotnik is the following: stipulate mandatory participation in such events in his employment contract(either a contract; or job description). But, nevertheless, the employer will have to pay double the amount for the employee to go to work on a day off - in accordance with the current Labor Code of the Russian Federation (or more - but this is at the discretion of the management).
Thus, we realized that not all employees are required to take part in a cleanup event on a day off. And various sanctions emanating from management towards them, in the form of fines, for example, are absolutely unlawful if such an obligation is not stated in the employee’s employment contract or in his job description.
Preparations for the next republican cleanup day, scheduled this year for April 16, did not go unnoticed by visitors. So, reader of our portal Dmitry contacted the editor with the following question:
“I am interested in the question about community cleanups, namely in what order should they be held? Does the director of an enterprise/company have the right to force people to work on a day off and does he have the right to force each employee to pay a certain amount for a cleanup day? The Labor Code of the Republic of Belarus states that there are no such rights. Why then do they do it anyway? Where can I write about a violation of the Labor Code?”
The leading legal consultant of the Center for Legal Services, Alexey Nesterenko, comments on the question.
Subbotnik by law
Holding a subbotnik in a work collective is subject to the Labor Code of the Republic of Belarus. Considering that the Labor Code does not contain such a thing as subbotnik, it should be applied rules on inviting an employee to work on weekends.
According to Art. 142 of the Labor Code of the Republic of Belarus, work on weekends is allowed at the suggestion of the employer and only with the consent of the employee or at the initiative of the employee with the consent of the employer, except for cases provided for by the Labor Code.
The Labor Code provides for a number of cases of being hired to work on a day off without the employee’s consent.
So, according to Art. 143 of the Labor Code of the Republic of Belarus, the employer has the right to attract an employee to work on his day off, established by the internal labor regulations or work schedule (shift), without the employee's consent in the following exceptional cases:
- to prevent a catastrophe, industrial accident, to perform work necessary to immediately eliminate their consequences or the consequences of a natural disaster;
- to prevent accidents;
- to eliminate accidental or unexpected circumstances that may disrupt or have already disrupted the normal functioning of water supply, gas supply, heating, lighting, sewerage, transport, communications;
- for the provision of emergency medical care by medical personnel.
The above list is comprehensive. In other cases, hiring someone to work on a day off without the employee’s consent is not permitted.
In addition, according to labor legislation, It is forbidden to hire someone to work on a day off pregnant women and women with children under three years of age, workers under eighteen years of age, and disabled people.
Labor legislation provides for the obligation of the employer to provide the employee with compensation for working on a day off.
Work on a day off may be compensated by agreement of the parties by providing another day of rest or increased pay. Work on weekends is paid no less than double. For employees receiving a monthly salary, payment is made in an amount not lower than a single hourly tariff rate (salary) in excess of the monthly salary, if the work was performed within the monthly working hours, and in an amount not lower than a double hourly tariff rate (salary) in excess of the monthly salary, if the work was carried out in excess of the monthly norm.
We also draw your attention to the fact that an employee cannot be forced to perform work unrelated to his main job responsibilities.
According to Art. 20 of the Labor Code of the Republic of Belarus, the employer does not have the right to require the employee to perform work not stipulated by the employment contract, except in cases provided for by legislative acts.
This means that you cannot force an accountant, legal adviser, or journalist to wash windows or pick up trash in the area adjacent to your property. office building territories. Otherwise, the employer must issue temporary transfer such an employee due to production needs according to the rules of Art. 33 of the Labor Code of the Republic of Belarus.
Compliance with the above formalities seems to be very important for the employer, since in the event of an accident with an employee during a cleanup day, the injury received by the employee will be considered as an industrial injury. In this case, the employer will have to justify the need and procedure for attracting the employee to work on a day off.
What if they are forced?
If the employer has taken disciplinary measures against an employee for not showing up for work on a cleanup day or has not paid (not paid in full) the wages received by the employee for that day, the employee has the right to appeal to the labor dispute commission (if one exists at the enterprise ) or to court.
Forced labor is prohibited, except for work or service determined by a court verdict or in accordance with the law on emergency and martial law (Article 41 of the Constitution of the Republic of Belarus).
Only voluntarily!
Every year, 2-3 weeks before the holding of republican subbotniks, recommendations related to issues of their organization are enshrined in the Resolutions “On holding a republican subbotnik” issued by the Council of Ministers of the Republic of Belarus.
As a rule, national subbotniks are timed to coincide with some holiday or anniversary.
Thus, in 2007, voluntary attendance at work on weekends was recommended by the country's Council of Ministers in connection with the declaration of 2007 as the Year of the Child.
In 2008, Belarusians landscaped the streets and courtyards of their cities in honor of the Year of Health. The funds raised during the cleanup this year were used to purchase medical equipment for healthcare institutions.
A year ago, work for the benefit of society was dedicated to celebrating the 65th anniversary of Victory in the Great Patriotic War and declaring 2010 the Year of Quality.
It should be noted that the government’s annual call to take part in the improvement and restoration of settlements is advisory in nature, and going to the republican subbotnik and transferring funds earned on this day only imply voluntary decision of the organization.
Thus, according to the Resolution of the Council of Ministers of the Republic of Belarus No. 530 dated April 7, 2010 “On holding a republican subbotnik in 2010”, money earned at workplaces on the day of the republican subbotnik is in the amount determined by employees, including employees whose activities are not related to the production of products (works), the provision of paid services, voluntarily were transferred through district and city executive committees to the regional executive committees and the Minsk City Executive Committee.
With participation in the republican cleanup day non-profit organizations by decision of the collectives of employees of these organizations, funds were transferred in amounts determined voluntarily by the teams themselves.
Employers withholding funds from employees' wages, for which the day designated for subbotnik is a working day, was carried out voluntarily in amounts determined by the collectives themselves.
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