What happens if I don't go to Saturday. Can you be punished for not participating in the subbotnik. When is a Sabbath held?
Many have read about the Saratov subbotnik, when women teachers were forced to remove snow in a twenty-degree frost. How legal are the so-called “subbotniks”, and are employees obliged to take part in them?
The story about teachers clearing snow provoked widespread public discontent, and the official responsible for organizing the scandalous subbotnik 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 Saturday
There is no such term as "subbotnik" in the legislation. But, based on the current practice, we can derive the following definition.
Subbotnik is voluntary and free work in the interests of the employer or other third parties in their 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 subbotniks, employees clean up territories, take out garbage, put their and other people's workplaces in order. They are also engaged in other work that is useful for someone, in no way connected with their direct labor functions.
Going to a subbotnik is a personal matter for everyone and is usually positioned as a voluntary action. But sometimes this is only declared, but in reality, various kinds of sanctions can be imposed on employees who “missed” the subbotnik. For example, to deprive the bonus or somehow infringe.
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
As a general rule, work on weekends and non-working holidays is prohibited. However, such work is still possible when it is urgent to do unforeseen work in advance, on the urgent implementation of which the normal operation of the 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,
- to pay for such work in double the amount.
Without the consent of employees, they cannot be involved in work on weekends. Moreover, they should not work for free.
Territory cleaning: covered with snow
Forced labor is prohibited. Everyone has the right to work in conditions that meet the requirements of safety and hygiene, as well as to remuneration for work (Article 37 of the Constitution of the Russian Federation).
Another thing is if subbotniks are prescribed in the collective agreement and are held during working hours. Let's say your organization needs to clear snow. During working hours, volunteers are looking for who are ready to wave a shovel.
If in the sensational Saratov subbotnik a couple of physical education teachers voluntarily went out to clear the snow, and they were paid extra, according to the Labor Code of the Russian Federation, then there would be no scandal.
If the employer says that the payment of 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 exemption from work specified in the employment contract, the employee is paid an additional payment.
The amount of the 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 requiredconsent of the employee to work on weekends
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 allowed 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 property of the employer, 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 situations, that is, in the event of a disaster or threat of disaster.
In all other cases, involvement in work on weekends and non-working holidays is allowed only with the written consent of the employee.
That is, if your organization wants to organize cleaning of the territory by the forces of its employees on Saturday, then you need to obtain the written consent of everyone who goes out on a cleanup day. Otherwise, the labor inspectorate will have questions for the company when the forced labor on the weekend becomes known.
Subbotnik: as it should be in 2019
Voluntary and free labor 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 are interesting to them personally. Others 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 to cause discontent among employees and the labor inspectorate, but still perform the work?
The employer can involve his employees in the so-called subbotniks, but subject to several mandatory conditions:
- work on a community work day should be stipulated in local acts (for example, in a collective agreement signed by employees);
- subbotnik, free work - this is nonsense and a direct violation of the Labor Code of the Russian Federation;
- Saturday must be held during working hours (Article 60.2 of the Labor Code of the Russian Federation allows for the possibility of attracting employees to additional work not in their specialty during the work shift, and such work is paid additionally);
- if the subbotnik is held on a day off, then the work is paid double;
- in all cases, the written consent of the employees is required to conduct a subbotnik, and without such consent, a subbotnik is impossible;
- the employer is not entitled to apply any sanctions for refusing to participate in the subbotnik.
"Housing and communal services: accounting and taxation", 2010, N 10
PENALTY FOR NOT EXIT ON SATURDAY
The HOA decided to charge tenants of MKD a fine for absenteeism on Saturday. Is such an initiative legal? How can it be legalized? Is there any reason to collect such a fine from all owners of premises or only from members of the HOA?
The law does not oblige the owners of premises in an apartment building to go on subbotniks. Consequently, responsibility for absenteeism on Saturdays 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 interest) is a sum of money determined by law or an agreement that the debtor is obliged to pay to the creditor in case of non-performance or improper performance of an obligation, for example, in case of delay in its performance. Upon a demand for the payment of a penalty, the creditor is not obliged to prove the infliction of losses to him. It follows from civil law that a fine can be established not only for violation of legal norms, but also for failure to fulfill an obligation under an agreement.
Despite the fact that according to paragraph 2 of Art. 138 of the Housing Code of the Russian Federation, the HOA is obliged to conclude agreements on the maintenance and repair of common property in an apartment building with owners of premises in an apartment building who are not members of the partnership; partnership relations with residents are not always regulated by the contract. In addition, in accordance with the norms of housing legislation, the HOA is not obliged to conclude contracts with its members, their relations are built on the basis of the HOA charter. How, in this case, to legitimize penalties for absenteeism on Saturday?
Paragraph 1 of Part 1 of Art. 137 of the Housing Code of the Russian Federation states that the partnership has the right to conclude, in accordance with the law, an agreement on 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 public services and other agreements in the interests of members of the partnership. It seems that the HOA can conclude some kind of agreement with the owners of premises in an apartment building, fixing the obligation of tenants to go on Saturdays and the responsibility for its 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 members of the HOA be considered such an agreement? On the one hand, under civil law, a fine can be established either by law or by agreement (clause 1, article 330 of the Civil Code of the Russian Federation). An agreement, in turn, is an agreement between two or more persons on the establishment, change or termination of civil rights and obligations (clause 1, 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 conditions (clause 1 of article 432 of the Civil Code of the Russian Federation). Consequently, the HOA must agree on the conditions for applying penalties for absenteeism on Saturdays with each tenant 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 is contrary to their nature.
Let's return to the situation under consideration. 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 voting or voted against, he is forced to obey the will of the majority. Thus, the owners ensure the proper maintenance of a single object - an apartment building. It seems that the levying of a fine for absenteeism only from those tenants with whom an agreement (agreement) has been concluded contradicts the nature of the relations themselves in managing an apartment building. We insist that penalties can be legalized at a general meeting of members of the partnership. Additionally, the general meeting of members of the HOA has the right to decide on making appropriate changes to the charter of the partnership (clause 1, clause 2, article 145 of the LC RF).
Even after the "legitimization" of the fine by the decision of the general meeting of members of the partnership, the question remains of the possibility of collecting a fine from the owners of premises who are not members of the HOA. The basis for levying a fine from such owners may be the presence of a decision of the general meeting of owners of the premises or the corresponding condition in the agreement on the maintenance and repair of common property in an apartment building. The second option seems to be more preferable and less risky.
No less important is the question of where the money received from the tenants as a fine for absenteeism will be directed. 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 funds of the partnership falls within the competence of the general meeting of members of the HOA (clause 5, clause 2, article 145 of the LC RF).
G.Yu.Sharikova
Journal Expert
"Department of Housing and Utilities:
accounting and taxation"
Signed for print
08.10.2010
Sergey Bolshakov, economist
Many organizations will soon begin preparations for the annual republican subbotnik.
In the magazine "I am a personnel specialist", 2011, No. 12, we have already written about the legal aspects of holding this event. Since the issue of holding a subbotnik from the position of labor legislation remains open, we suggest that you once again pay attention to important points when holding this event.
Labor legislation does not define the concept of subbotnik and the procedure for employees to participate in it. In this regard, many questions arise in practice, in particular: will participation in the subbotnik be taken into account as working time? Is it required 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 subbotnik be held disciplinary or financially liable?
What are the occasions for a Saturday?
Subbotnik can be initiated:
Government - by making an appropriate decision. For example, in 2011, for these purposes, the Resolution of the Council of Ministers of the Republic of Belarus dated April 1, 2011 No. 423 “On holding a republican subbotnik 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, or are aimed at solving certain socio-economic problems;
- local authorities, for example, in connection with the Dozhinki festival;
- the administration of the organization, for example, in order to improve the territory of the organization, etc.
The legislation does not contain any specifics regarding the organization of a subbotnik depending on its initiator.
The order of the subbotnik
Subbotnik is carried out both at workplaces and in other places established by the employer. It is necessary to determine the place of the subbotnik in the order (instruction) of the employer.
The legislation does not provide for restrictions on the number, duration and time of subbotniks. There is information about the holding of dozens of subbotniks in individual organizations of the republic.
At the same time, 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 of political views or ideological convictions that are contrary to the established political, social or economic system;
2) the method of mobilization and use of labor for the needs of economic development;
3) means of maintaining labor discipline;
4) means of punishment for participating in strikes.
During the subbotnik, the employee is involved in the performance of functions not provided for in his employment contract
Please note that the legislation establishes limits 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 term 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 of a production need 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. Exceptional cases in judicial practice are understood as situations when the employer does not have the opportunity, except by transferring the employee to a job not stipulated by the employment contract, to prevent or eliminate a natural disaster, other cases of production necessity.
Exceptional cases, according to judicial practice, do not include the need to fulfill contractual obligations, provide assistance to other employers, perform scheduled work, or shortcomings in the organization of work of employees.
If an employee is recruited 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 an employee in this case, and therefore the employee's refusal to participate in the subbotnik should not be considered as a violation of labor discipline.
Working hours when organizing a subbotnik
Working time is considered to be the time during which the employee, in accordance with labor, collective agreements, internal labor regulations, is obliged to be at the workplace and fulfill his labor duties.
(Article 110 of the Labor Code).
Working time is normalized by establishing norms for its duration during a calendar week (working week) and within a day (working day, work shift). The normalization of working hours is carried out by the employer, taking into account the restrictions established by law and the collective agreement.
All employees are provided with days off - weekly uninterrupted 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 for shortfalls to the weekly working time norm. In such a week, 1 day off is provided.
With a 6-day working 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 with a 5-day working week is established in the internal labor regulations or in the work (shift) schedule, unless otherwise specified by agreement of the parties.
Both days off are provided, as a rule, in a row.
All employees have the right to days off (Article 137 of the Labor Code).
The employee can use the days off at his own discretion.
In this case, absence from work on a day off cannot be considered absenteeism.
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, with the exception of cases provided for in Art. 143 TK.
So, the employer has the right to involve the employee to work on his day off, established by the internal labor regulations or the work schedule (shift), without the consent of the employee in the following exceptional cases:
1) to prevent a catastrophe, an industrial accident, to perform the work necessary to immediately eliminate their consequences or the consequences of a natural disaster;
2) accident prevention;
3) elimination of accidental 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 foregoing, the employee's refusal to participate in the subbotnik cannot be considered as a violation, and disciplinary measures cannot be applied to the employee for this.
Who can participate in the subbotnik?
It is forbidden to involve pregnant women and women with children under the age of 3 years (part one of article 263 of the Labor Code), workers under 18 years of age (art. 276 of the Labor Code) to work on weekends.
Thus, it is unlawful to involve such workers in work on a subbotnik on a day off.
Written consent must also be obtained from female workers with children aged 3 to 14 years (disabled children under 18 years of age) and disabled workers (unless they are prohibited from working on medical grounds) before such workers begin work. subbotnik on a day off (part three of article 263 of the Labor Code).
Non-standard cases of holding a subbotnik
Individual organizations initiate the subbotnik 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 subbotnik outside the working day.
Participation in the subbotnik, as indicated above, is a social activity, not a labor one, and is based on other principles. It cannot be considered as the fulfillment of an employment contract and, accordingly, lead to the occurrence of overtime working time.
The procedure for organizing a subbotnik
Conducting a subbotnik must be formalized by an order for the main activity.
We believe that in this case the order will have a recommendatory character.
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 issue, the republican government bodies, state organizations subordinate to the Government, local executive and administrative bodies, and other organizations are recommended to voluntarily conduct a republican subbotnik at workplaces or to improve and bring public gardens, parks, other areas of mass recreation, the carriageway of streets, sidewalks and courtyards.
Thus, the organization transfers exactly the money earned during the republican subbotnik.
For a sample order on organizing and holding 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 deduction by the employer of funds from the wages of employees and their subsequent transfer is carried out on a voluntary basis in amounts determined by the collectives themselves, the employee. In other words, the employees of the enterprise must express a desire or at least agree with the deduction of funds from their wages. Otherwise, the employer is not entitled to make a deduction and is obliged to pay the money to the employee, and not transfer them to the accounts of the initiators of the subbotnik.
Often in organizations there is a situation: a subbotnik is scheduled, the day is a day off, the authorities force them to take part. Naturally, the question arises among workers: "Is this state of affairs lawful?" Let's deal with this together.
First, remember that forced labor is prohibited by the Constitution of the Russian Federation. This is one of the basic principles of labor organization in our country. Secondly, according to the labor legislation of Russia, days off are the time when a person is free from performing his direct labor functions, respectively, and he disposes of them at his own will and discretion. In other words, to involve employees in the performance of work on such days only after obtaining their written consent. But as always, there are exceptions to all rules. In this case, in emergency situations (catastrophes, accidents, the introduction of a 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 subbotnik can only be voluntary.. Therefore, even if the management plans to fine employees for not participating 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. In this way, the local order on taking part in a subbotnik 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: prescribe mandatory participation in such events in his employment contract(either a contract; or a job description). But, nevertheless, the employer will have to pay for the employee to go to work on a day off in double the amount - in accordance with the current Labor Code of the Russian Federation (or more - but this is at the discretion of the authorities).
So, we realized that not all employees are required to take part in the subbotnik on a day off. And various sanctions coming from management against them, in the form of fines, for example, are absolutely illegal if such a duty is not fixed in the employee's employment contract or in his job description.
Preparations for the next republican subbotnik, scheduled for April 16 this year, did not go unnoticed by visitors. So, a reader of our portal Dmitry turned to the editorial office with the following question:
“I'm interested in the question of subbotniks, namely, in what order should they be held? Does the director of an enterprise / firm have the right to force them to work on a day off and does he have the right to make each employee pay a certain amount for a subbotnik? The Labor Code of the Republic of Belarus says that there are no such rights. Why then do they do it anyway? Where to write about violations of the Labor Code?
The question is commented by the leading legal adviser of the Legal Services Center Alexey Nesterenko.
Sabbath according to the law
Holding a subbotnik in a work collective falls under the Labor Code of the Republic of Belarus. Considering that the Labor Code does not contain such a thing as a community work day, one should apply rules for engaging 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, with the exception of cases provided for by the Labor Code.
The Labor Code provides for a number of cases of engaging in work on a day off without the consent of the employee.
So, according to Art. 143 of the Labor Code of the Republic of Belarus, the employer has the right to involve the employee to work on his day off, established by the internal labor regulations or work schedule (shift), without the consent of the employee in the following exceptional cases:
- to prevent a catastrophe, an industrial accident, to perform the 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 exhaustive. In other cases, engaging in work on a day off without the consent of the employee is not allowed.
In addition, according to the labor law, not allowed to work on weekends pregnant women and women with children under the age of three, workers under the age of eighteen, disabled people.
Labor legislation provides for the obligation of the employer to provide the employee with holiday pay.
Work on a day off can be compensated by agreement of the parties by providing another day of rest or increased pay. Weekend work is paid no less than double the amount. For employees receiving a monthly salary, payment is made in the amount of not less than a single hourly tariff rate (salary) in excess of the monthly salary, if the work was performed within the monthly norm of working hours, and in the amount of not less than the double hourly tariff rate (salary) in excess of the monthly salary, if the work was done in excess of the monthly norm.
We also draw your attention to the fact that an employee cannot be forced to perform work that is not related to his main job duties.
According to Art. 20 of the Labor Code of the Republic of Belarus, the employer is not entitled to demand from the employee to perform work not stipulated by the employment contract, with the exception of cases provided for by legislative acts.
This means that you cannot force an accountant, legal adviser or journalist to wash windows or clean up trash in the area adjacent to the office building. Otherwise, the employer needs to issue a temporary transfer of such an employee due to production needs in accordance with 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 community work 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 involving the employee to work on a day off.
What if they are forced?
If the employer has taken disciplinary measures against the employee for absenteeism on the day of the subbotnik or has not paid (has not paid in full) the wages received by the employee on that day, the employee has the right to apply 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 a state of 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 the republican subbotniks, recommendations related to the issues of their organization are fixed in the Resolutions “On holding the 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 date.
Thus, in 2007, voluntary exits to work on weekends were recommended by the Council of Ministers of the country in connection with the announcement of 2007 as the Year of the Child.
In 2008, Belarusians improved the streets and courtyards of their cities in honor of the Year of Health. The funds raised during the clean-up this year were used to purchase medical equipment for healthcare institutions.
A year ago, work for the benefit of society was dedicated to the celebration of the 65th anniversary of the Victory in the Great Patriotic War and the announcement of 2010 as the Year of Quality.
It should be noted that the annual appeal of the government to take part in the improvement and bringing the settlements into proper condition is recommendatory, and going to the republican subbotnik and transferring the money earned on that day involve only voluntary decision of the organization.
Thus, according to the Decree of the Council of Ministers of the Republic of Belarus No. 530 dated April 7, 2010 "On holding a republican subbotnik in 2010", the money earned in the workplace on the day of the republican subbotnik, in volumes defined by employees, including employees whose activities are not related to the production of products (works), the provision of paid services, on a voluntary basis were transferred through the district and city executive committees to the regional executive committees and the Minsk City Executive Committee.
With participation in the republican subbotnik non-profit organizations by decision of the collectives of employees of these organizations, funds were transferred in amounts determined by voluntarily by the teams themselves.
Withholding by employers of funds from the wages of employees, for which the day determined for Saturday is a working day, voluntarily in sizes determined by the teams themselves.
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