Explanations on the procedure for paying monetary compensation to employees of internal affairs bodies for performing official duties in excess of the established normal duration of duty time, at night, on weekends and non-working holidays. From betrayal

Hello!

Order of the Ministry of Internal Affairs of Russia dated January 31, 2013 N 65 (as amended on August 29, 2016) “On approval of the Procedure for providing monetary allowances to employees of internal affairs bodies of the Russian Federation”

IX. Monetary compensation for performance of official duties in excess of the established normal duration of official time, at night, on weekends and non-working holidays

56. An employee, at his request, set out in a report, according to the data of service time recording * (36) and on the basis of an order from the manager, instead of providing additional days of rest, may be paid monetary compensation for the performance of official duties in excess of the established normal duration of official time, at night, at weekends and non-working holidays*(37).

57. The manager’s order indicates the number of days for which monetary compensation is paid.

58. The number of days for which monetary compensation is paid in the current year should not exceed the duration of overtime work for the year established by labor legislation *(38).

59. The amount of monetary compensation for each day is determined by dividing the amount of salary and monthly additional payments as part of the monetary allowance established on the day of payment by the average monthly number of calendar days. The average monthly number of calendar days is determined by dividing the number of calendar days in a given calendar year by 12.

61. Based on the order of the manager, issued based on the results of recording the time when employees are involved in performing official duties at night, on non-working holidays according to the shift schedule within the normal length of service time for the accounting period, compensation payments are made to employees.

62. The compensation payment specified in paragraph 61 of this Procedure is made for each hour of work under appropriate conditions in the following amounts:

62.1. On non-working holidays - single hourly rate.

62.2. At night - 20 percent of the hourly rate.

63. The hourly rate is determined by dividing the employee’s official salary for the month in which the payment is made by the average monthly number of working hours in a given calendar year.

Order of the Ministry of Internal Affairs of the Russian Federation dated October 19, 2012 N 961 “On approval of the Procedure for attracting employees of internal affairs bodies of the Russian Federation to perform official duties beyond the established normal duration of service time, as well as at night, weekends and non-working holidays, providing employees of internal affairs bodies with Russian Federation additional days of rest"

2. Employees are involved in the performance of official duties beyond the established normal duration of service time, as well as at night, on weekends and non-working holidays on the basis of a legal act of the Minister of Internal Affairs of the Russian Federation, the Deputy Minister of Internal Affairs of the Russian Federation, the head (chief) of a unit of the central apparatus of the Ministry of Internal Affairs of the Russian Federation, a territorial body of the Ministry of Internal Affairs of the Russian Federation, an educational, scientific organization of the system of the Ministry of Internal Affairs of the Russian Federation, another organization or unit created to perform the tasks and exercise powers assigned to the internal affairs bodies of the Russian Federation, as well as legal an act of the head (chief) of a structural unit of a territorial body of the Ministry of Internal Affairs of the Russian Federation, who has the right to appoint employees to positions. The specified legal act is brought to the attention of the employee against receipt. A manager (supervisor) who has engaged an employee to perform official duties beyond the established normal duration of office hours, as well as at night, on weekends and non-working holidays, bears disciplinary responsibility for the legality and validity of such engagement.

3. In urgent cases, the decision to involve an employee in performing official duties beyond the established normal duration of duty time, as well as at night, can be made and communicated to him by his direct supervisor (supervisor) orally. In this case, the direct manager (chief) is obliged to report such involvement with a report to the Minister of Internal Affairs of the Russian Federation, the Deputy Minister of Internal Affairs of the Russian Federation, the head (chief) of a unit of the central apparatus of the Ministry of Internal Affairs of the Russian Federation, a territorial body of the Ministry of Internal Affairs of the Russian Federation, within two working days of the Russian Federation, an educational, scientific organization of the system of the Ministry of Internal Affairs of the Russian Federation, another organization or unit created to perform tasks and exercise powers assigned to the internal affairs bodies of the Russian Federation, a structural unit of a territorial body of the Ministry of Internal Affairs of the Russian Federation, which has the right to appoint employees to positions*(3). The report shall indicate the grounds for involving the employee in performing official duties beyond the established normal duration of duty time, as well as at night and its duration.

4. In order to take into account the duration of the performance of official duties by employees in excess of the established normal duration of official time, as well as at night, weekends and non-working holidays in bodies, organizations, divisions of the Ministry of Internal Affairs of Russia, time sheets are drawn up for accounting the official time of employees of the internal affairs bodies of the Russian Federation *(4 ) (Appendix to this Order). Taking into account the special tasks assigned to bodies, organizations, divisions of the Ministry of Internal Affairs of Russia, a legal act of the Ministry of Internal Affairs of the Russian Federation or the head (chief) of an agency, organization, division of the Ministry of Internal Affairs of Russia may establish additional forms for recording the duration of performance of official duties by employees in excess of the established normal duration of service time, as well as at night, weekends and non-working holidays.

5. The employees responsible for maintaining the time sheet are determined by the legal act of the head (chief) of the body, organization, division of the Ministry of Internal Affairs of Russia. These employees are responsible for the correctness and completeness of filling out the timesheet.

6. An extract from the legal act (its copy) specified in paragraph 2 of this Procedure, a report with a resolution of the head (chief) of the body, organization, unit of the Ministry of Internal Affairs of Russia, specified in paragraph 3 of this Procedure, are transferred to the employee responsible for maintaining the time sheet.

7. The completed timesheet at the end of the accounting period is transferred to the appropriate personnel department. Completed time sheets are stored in the personnel department for three years from the end of the accounting period.

8. The duration of the employee’s performance of official duties in excess of the established normal duration of official time is determined based on the duration of the employee’s performance of official duties in excess of the established normal duration of daily service, and in the case of cumulative accounting of official time - in excess of the established normal duration of official time for the accounting period.

9. An employee involved in performing official duties in excess of the established normal duration of official time, as well as at night, is provided with compensation in the form of additional rest time equal to the duration of performance of official duties in excess of the established normal duration of official time, as well as at night. An employee assigned to work on a day off or a non-working holiday is provided with compensation in the form of an additional day of rest.

10. Compensation in the form of rest of the appropriate duration is provided to the employee on other days of the week. If it is impossible to provide such rest on other days of the week, the time spent performing official duties in excess of the established normal duration of official time, as well as at night, on weekends and non-working holidays, is summed up and the employee is provided with additional days of rest of the appropriate duration, which at his request can be be added to annual paid leave. The order for granting annual paid leave indicates the number of additional days of rest to be compensated and the type of compensation.

11. Employees who have an irregular working day may be occasionally involved in performing official duties beyond the normal duration of official time established for them by decision of the direct supervisor (boss). For the performance by these employees of official duties in excess of the normal duration of service time established for them, compensation in the form of rest of the corresponding duration is not provided. Employees who have an irregular working day are granted additional leave in accordance with Part 5 of Article 58 of Federal Law No. 342-FZ of November 30, 2011 “On service in the internal affairs bodies of the Russian Federation and amendments to certain legislative acts of the Russian Federation”* (5).

12. Engaging employees who have irregular working hours to perform official duties at night, on weekends and non-working holidays, as well as providing them with compensation in connection with such engagement in the form of rest of the appropriate duration, is carried out in accordance with this Procedure.

13. For the performance of official duties by employees at night, on weekends and non-working holidays based on the shift schedule or in the case of cumulative accounting of service time within the normal duration of service time, compensation in the form of additional rest time or additional days of rest is not provided.

14. Compensation in the form of additional rest time, additional days of rest in accordance with this Procedure is not provided to employees performing tasks to ensure law and order and public safety in certain regions of the Russian Federation or serving under martial law or a state of emergency, armed conflict, or conducting counter-terrorism operations, liquidation of the consequences of accidents, natural and man-made disasters, other emergency situations and other special conditions associated with an increased danger to life and health, changes in the working time regime and the introduction of additional restrictions that establish increasing coefficients or allowances.

15. Providing additional rest time or additional days of rest for performing official duties in excess of the established normal duration of official time, as well as at night, on weekends and non-working holidays based on the employee’s report, agreed upon with the immediate supervisor (supervisor), is carried out:

15.1. Minister of Internal Affairs of the Russian Federation, Deputy Minister of Internal Affairs of the Russian Federation, head (chief) of an agency, organization, division of the Ministry of Internal Affairs of Russia.

15.2. Another leader (chief) to whom the corresponding right has been granted by the Minister of Internal Affairs of the Russian Federation, the Deputy Minister of Internal Affairs of the Russian Federation, the head (chief) of an agency, organization, division of the Ministry of Internal Affairs of Russia.

16. The report with the resolution of the manager (supervisor) specified in subparagraphs 15.1 and 15.2 of this Procedure is brought to the attention of the employee and transferred to the person responsible for maintaining the time sheet.

17. Unauthorized use by an employee of additional rest time or additional days of rest for performing official duties in excess of the established normal duration of official time, as well as at night, on weekends and non-working holidays is not allowed.

18. At the request of an employee, instead of providing additional days of rest, he may be paid monetary compensation*(6) in the manner established by Order of the Ministry of Internal Affairs of Russia dated January 31, 2013 N 65 “On approval of the Procedure for providing monetary allowances to employees of internal affairs bodies of the Russian Federation”* (7).

Social guarantees for employees of the Russian Ministry of Internal Affairs are often subject to discrimination, including such guarantees as compensation for performing work beyond the established normal working hours (overtime). In this article, I want to talk about one case from my legal practice, in which a former employee of the Russian Ministry of Internal Affairs sought compensation for overtime work, which he was involved in while performing the duties of an on-duty investigator as part of an investigative and operational group (IOG).

Background:

The work of many investigative departments is organized in such a way that the investigator, in addition to his direct responsibilities for investigating criminal cases in progress, also performs the duties of an investigator on duty (i.e., an investigator who goes to the scene of an incident and carries out urgent investigative actions after receiving information about the incident ).

In practice, this happens in such a way that an investigator can work five days a week, performing his direct duties, and on Saturday take up daily duty. In this connection, the total number of working hours of such an investigator increases sharply. At the same time, the investigator does not receive any additional payment for performing duties as part of the SOG.
Whether it was legal or not, the real matter had to be sorted out.

Attempt at pre-trial settlement of the dispute:

Before his dismissal from the Russian Ministry of Internal Affairs, the investigator submitted a report in advance on payment of compensation for overtime work. This report reflected shifts that fell on weekends and holidays, during which the investigator performed his official duties, and contained a requirement to pay compensation for them at the rate of double pay for each hour of performance of official duties. This calculation was motivated by the fact that payment on weekends, holidays and at night should be made at least double the amount (Article 153 of the Labor Code of the Russian Federation).

After the dismissal, a response was received to this report, from the content of which it followed that, according to clause 11 of the annex to the Order of the Ministry of Internal Affairs of Russia dated October 19, 2012 No. 961 “On approval of the procedure for attracting employees of the internal affairs bodies of the Russian Federation to perform official duties beyond the established normal duration of service time, as well as at night, weekends and non-working holidays, providing employees of the internal affairs bodies of the Russian Federation with additional days of rest", employees who have an irregular duty day may be occasionally involved in performing official duties in excess of the normal duration of official time established for them according to decision of the direct manager (boss). For the performance by these employees of official duties in excess of the normal duration of service time established for them, compensation in the form of rest of the corresponding duration is not provided. Employees who have an irregular working day are granted additional leave in accordance with Part 5 of Article 58 of Federal Law No. 342-FZ of November 30, 2011 “On service in the internal affairs bodies of the Russian Federation and amendments to certain legislative acts of the Russian Federation.”

Based on the above norm, the leadership of the Ministry of Internal Affairs of Russia considered that the work of the investigator is not standardized, and for the fact that he is involved in duty on weekends and holidays, he is not entitled to any bonus (compensation), since as compensation for such a regime of service he receives additional leave.

Filing a claim in court:

Not agreeing with this answer, a former employee of the Russian Ministry of Internal Affairs filed a lawsuit in which he asked to recover compensation for overtime work, a penalty for refusal to voluntarily pay compensation, as well as compensation for moral damage.

The main premise of the claim was that an employee of the Russian Ministry of Internal Affairs is guaranteed a 40-hour working week, and the defendant (the Russian Ministry of Internal Affairs) confuses two legal categories - irregular working hours and work beyond the established normal working hours (40 hours per week). Additional leave is a guarantee provided for the establishment of an irregular working day for an employee of the Ministry of Internal Affairs of Russia, and for involving him in performing duties overtime, appropriate monetary compensation must be paid.

Legally significant circumstances:

1. Proving that being part of the SOG is the performance of official duties beyond the established normal working hours. For this purpose, a request was made to the leadership of the Ministry of Internal Affairs of Russia, with a request to clarify the procedure for organizing duty, attracting employees of the investigation department to perform duties as part of the SOG, the procedure for their service as part of the SOG.

2. Proof of the fact that the employee was involved in performing the specified work. For this purpose, duty schedules of the investigative department were requested. Thus, specific days were identified on which the investigator performed duties as part of the SOG.

3. Proof of the amount of compensation. The compensation was calculated as follows: the amount of payment for one hour of work = the amount of salary/29.4 (average monthly number of calendar days) = 1 day/8 hours (working time period) further × 2 (wages on weekends and non-working holidays ). Next, the specified amount was multiplied by the number of hours worked as part of the SOG, that is, by 24 hours, since based on the information received (response from the Ministry of Internal Affairs of Russia) it was established that the investigator performs official duties while being part of the SOG during the day, while the time he is not provided with space for sleep or rest.

Bottom line.

The court of first instance agreed with this position of the plaintiff and in favor of the former employee of the Ministry of Internal Affairs of Russia, compensation was recovered for overtime work, a penalty for delay in payment of such compensation, as well as compensation for moral damage.

P.S. An interesting position on this case was expressed by the Novosibirsk Regional Court, about which a separate article will be written, I will only say that the decision of the court of first instance was left unchanged, and the defendant’s complaint was not satisfied.

More detailed information on the legal basis for the stated claim (justification of the differences between the legal category - irregular working hours and overtime work) can be found in the article published on my website at the link.

Case ---

SOLUTION

In the name of the Russian Federation

Petrovsky District Court... composed of:

presiding judge - FULL NAME11

under the secretary, full name 3,

with:

representative of the plaintiff - FULL NAME4, who provided the order -.-

representative of the defendant of the Department of the Ministry of Internal Affairs of Russia for... FULL NAME5, acting on the basis of a power of attorney,

having considered in open court in the courtroom... a civil case based on a claim FULL NAME1 against the department of the Ministry of Internal Affairs of Russia for... the collection of wages for overtime work,

INSTALLED:

FULL NAME1 filed a lawsuit against the department of the Ministry of Internal Affairs of Russia for... the collection of wages for overtime work, in which he asks to recover wages for overtime work from the department of the Ministry of Internal Affairs of Russia for... for *** years, in the amount of -.- ., and also to recover from the defendant in his favor compensation for moral damage in the amount of -.- rub.

He justifies his demands by the fact that in the period from *** to *** he served in the internal affairs bodies. According to an extract from the order of the department of the Ministry of Internal Affairs of Russia for... dated October 31, 2014. --- l/s FULL NAME1 dismissed from service in the internal affairs bodies as a senior police lieutenant (B-269992) - senior inspector of the road patrol service of a separate platoon of the road patrol service of the traffic police department of the Ministry of Internal Affairs of Russia for... under paragraph 4 of part 2 of Article 82 of the Federal Law dated --- “On service in the internal affairs bodies of the Russian Federation and amendments to certain legislative acts of the Russian Federation” on length of service giving the right to receive a pension. Length of service as of *** is -.-; - calendar for payment of EP - -.-.

*** FULL NAME1 filed a report addressed to the head of the department of the Ministry of Internal Affairs of Russia for... FULL NAME10 about the payment of monetary compensation for overtime worked, as well as at night for -.- years. After which he learned that he had not been paid monetary compensation for overtime work, since he had not previously received pay slips due to the transfer of wages to a bank card. He was also not provided with additional days of rest as compensation for overtime work. According to the time sheets, he worked in excess of the established normal working hours in -.- year - -.- hours, night - *** year overtime - -.- hours, night - -.- year overtime - -.- hours , night - -.-

*** he applied again to the defendant and the Main Directorate of the Ministry of Internal Affairs of Russia for the Investigative Committee with a request to calculate and pay the monetary compensation due to him. However, *** he was refused and it was indicated that monetary compensation for work in excess of the established normal length of service time, in the amount of 120 hours, was paid to him for -.- years, and the remaining days of overtime could be compensated to the employee in the form of providing additional days of rest during the period serving in the internal affairs bodies on the basis of his report.

I do not agree with the decision of the defendant FULL NAME1, he believes that he was unreasonably and illegally denied wages for overtime worked, due to the fact that article of the Federal Law “On Police” No. 3-F3 (as amended from *** year) defines , that for police officers the normal length of service time is established to be no more than 40 hours per week.

DECIDED:

In satisfying the claims of Full Name1 against the Department of the Ministry of Internal Affairs of Russia for... the collection of wages for overtime work from the Department of the Ministry of Internal Affairs of the Russian Federation for... in the amount of -.- for *** years, interest for violation of the established payment deadline in the amount of -.- for the period from *** to ***, compensation for moral damage in the amount of -.- rubles, as well as expenses for paying for the services of a representative in the amount of -.- rubles - shall be refused.

The decision can be appealed to the court within a month from the date of its adoption in final form.

The reasoned decision in its final form was made by ***.

Court:

Legal Department of the Administration of the Ministry of Internal Affairs of Russia for the Central Federal District

In accordance with Part 2 of Article 53 of the Federal Law of November 30, 2011 N 342-FZ “On service in the internal affairs bodies of the Russian Federation and amendments to certain legislative acts of the Russian Federation,” the normal length of service time for an employee of the internal affairs bodies cannot exceed 40 hours per week and a five-day work week is established for the employee.

Order attracting employees of the internal affairs bodies of the Russian Federation to perform official duties beyond the established normal duration of duty time, as well as at night, weekends and non-working holidays, providing employees of the internal affairs bodies of the Russian Federation with additional days of rest is regulated by the order of the Ministry of Internal Affairs of Russia dated October 19, 2012. N 961(hereinafter referred to as the Procedure approved by order of the Ministry of Internal Affairs of Russia dated October 19, 2012 N 961).

According to paragraph 4 The procedure approved by Order of the Ministry of Internal Affairs of Russia dated October 19, 2012 N 961, in order to take into account the duration of performance of official duties by employees in excess of the established normal duration of official time, as well as at night, weekends and non-working holidays in the units of the Ministry of Internal Affairs of Russia, time sheets are compiled for employees of the bodies Internal Affairs of the Russian Federation.

Points 9 And 10 The above-mentioned Procedure provides that an employee involved in performing official duties on weekends and non-working holidays is provided with compensation in the form of additional days of rest, and for service in excess of the established normal duration of service time, as well as at night - in the form of additional rest time equal to the duration of performance of official duties in excess of the established normal duration of official time, as well as at night, which can be summed up and provided in the form of additional days of rest of the appropriate duration. In addition, at the request of the employee, additional days of rest can be added to the annual paid leave.

Employees who have an irregular working day may be occasionally involved in performing official duties beyond the normal length of working time established for them by decision of the direct supervisor (boss). For the performance by these employees of official duties beyond the normal length of service time established for them compensation in the form of rest of the appropriate duration is not provided. Employees who have irregular working hours are granted additional leave in accordance with part 5 of article 58 Federal Law of November 30, 2011 N 342-FZ “On service in the internal affairs bodies of the Russian Federation and amendments to certain legislative acts of the Russian Federation.”

According to paragraph 12 of the Procedure approved by Order of the Ministry of Internal Affairs of Russia dated October 19, 2012 N 961, the involvement of employees who have an irregular working day to perform official duties at night, on weekends and non-working holidays, as well as providing them with compensation in connection with such involvement in type of rest of the appropriate duration are carried out in accordance with the above Procedure. That is, when employees who have an irregular working day are involved in performing official duties at night, they are provided with additional rest time equal to the duration of performing official duties in excess of the established normal duration of official time, and when such employees are involved in performing official duties on weekends and On non-working holidays, they are provided with additional days of rest, which, at their request, can be replaced by monetary compensation.

Also, according to paragraph 18 The procedure approved by Order of the Ministry of Internal Affairs of Russia dated October 19, 2012 N 961, at the request of an employee, instead of providing additional days of rest, monetary compensation may be paid in the manner established by Order of the Ministry of Internal Affairs of Russia dated January 31, 2013. N 65“On approval of the Procedure for providing monetary compensation to employees of internal affairs bodies of the Russian Federation” (hereinafter referred to as the Procedure approved by Order of the Ministry of Internal Affairs of Russia dated January 31, 2013 N 65).

According to paragraph 56 of the Procedure, approved by order of the Ministry of Internal Affairs of Russia dated January 31, 2013 N 65, to the employee at his request stated in the report, according to service time records and on the basis of an order from the manager, instead of providing additional days of rest, monetary compensation may be paid for the performance of official duties in excess of the established normal duration of official time, at night, on weekends and non-working holidays.

It should be noted that for the purpose of the above-mentioned accounting of the duration of performance of official duties by employees in excess of the established normal duration of service time, as well as at night, weekends and non-working holidays in bodies, organizations, divisions of the Ministry of Internal Affairs of Russia time sheets are prepared ( clause 4 of the Procedure approved by order of the Ministry of Internal Affairs of Russia dated October 19, 2012 N 961).

Guided by paragraphs 58, 59 of the Procedure approved by Order of the Ministry of Internal Affairs of Russia dated January 31, 2013 N 65, the amount of monetary compensation for each day is determined by dividing the amount of salary and monthly additional payments as part of the monetary allowance established on the day of payment by the average monthly number of calendar days. The average monthly number of calendar days is determined by dividing the number of calendar days in a given calendar year by 12. Moreover, the number of days for which monetary compensation is paid in the current year should not exceed

for each employee 4 hours for two consecutive days and 120 hours per year.

Employees performing official duties at night, on weekends and on non-working holidays based on the shift schedule are not provided with compensation in the form of additional rest time and additional days of rest ( paragraph 13 Procedure approved by order of the Ministry of Internal Affairs of Russia dated October 19, 2012 N 961), and monetary compensation is paid in accordance withparagraphs 61 - 63 The procedure approved by order of the Ministry of Internal Affairs of Russia dated January 31, 2013 N 65. Thus, the above compensation payment is made for each hour of work under appropriate conditions in the following amounts:

on non-working holidays - single hourly rate.

at night - 20 percent of the hourly rate.

In this case, the hourly rate is determined by dividing the employee’s salary for the month in which the payment is made by the average monthly number of working hours in a given calendar year.

Taking into account the above, when deciding on the payment of monetary compensation in exchange for additional days of rest to employees involved in performing official duties in excess of the established normal duration of official time, as well as at night, weekends and non-working holidays (i.e. according to the employee’s official time sheet internal affairs bodies of the Russian Federation, and not according to the shift schedule), one should be guided points 56- 59 of the Procedure approved by Order of the Ministry of Internal Affairs of Russia dated January 31, 2013 N 65.

That is, employees involved in performing official duties beyond the established normal duration of official time, as well as at night, weekends and non-working holidays, for whom Irregular working hours are established, provided at their choice or financial compensation(according to the corresponding employee report) in exchange for additional days of rest weekends and non-working days holidays and night time or additional days of rest, respectively. It should be noted that the above-mentioned employees are not provided with either monetary compensation for performing official duties in excess of the established normal length of service time, or compensation in the form of rest of an appropriate duration. For such employees, for involving them in the performance of official duties beyond the established normal duration of official time, a type of additional leave is established and provided - for an irregular working day.

Employees who Irregular working hours are not established, when they are involved in the performance of official duties beyond the established normal duration of official time, as well as at night, weekends and non-working holidays, it is provided at their choice or monetary compensation (according to the relevant report) in return for additional days recreation for performing official duties in weekends and non-working days holidays, on night time as well as for performing official duties in excess of the established normal duration of service time or additional days of rest, respectively.

DD.MM.YYYY<адрес>

Mikhailovsky District Court of the Amur Region, consisting of:

presiding judge Kundikova Yu.V.,

under secretary Gurkina N.V.,

with the participation of the plaintiff V.P. Belokopytov, a representative of the defendant of the Ministry of Internal Affairs of Russia "<адрес>» Bolkunova N.A., acting on the basis of power of attorney No. dated DD.MM.YYYY

Having considered in open court a civil case based on the claim of V.P. Belokopytov. to the Ministry of Internal Affairs of Russia "<адрес>", ATC<адрес>on the collection of wages for work overtime and holidays,

installed:

Belokopytov Viktor Pavlovich filed a lawsuit against the Ministry of Internal Affairs of Russia "<адрес>", Regional Ministry of Internal Affairs of the Russian Federation for<адрес>on the collection of wages for work overtime and holidays. In support of the request, he indicated that in the period from DD.MM.YYYY to DD.MM.YYYY he served in the Department of Internal Affairs for<адрес>ATC<адрес>Ministry of Internal Affairs of Russia, in the period from DD.MM.YYYY to DD.MM.YYYY served as head of the department - operational duty officer of the Department of Internal Affairs for<адрес>. The duty of the duty department employees is organized one day (24 hours) every other day (48 hours), and therefore, over the last three years preceding his dismissal (from August 2008 to August 2011), overtime was formed in the amount of: 2008 - 121 hour; 2009 - 709 hours; 2010 - 685 hours; 2011 XXX hours, of which 288 hours are on holidays and non-working days. At the specified time, he repeatedly appealed to the management of the internal affairs department with a request for payment for overtime work, but it was refused due to lack of funds. Requests to recover wages from the defendants for working overtime and holidays.

At the preliminary court hearing, the plaintiff presented a calculation of the arrears of wages for overtime work and non-working holidays, and asked to recover from the Ministry of Internal Affairs of Russia "<адрес>total debt<данные изъяты>rub. for the period from August 2008 to August 2011.

At the court hearing, plaintiff V.P. Belokopytov. supported the demands, additionally explained that the statement of claim was sent to him by mail DD.MM.YYYY, he was fired DD.MM.YYYY, the final payment was not made to him immediately, the last payment was in December 2011. Upon receipt of the payment, it became known that he was not accrued or paid any monetary compensation for overtime work. During the period of work, amounts of salary were transferred to his personal account; pay slips were not issued. Salaries are transferred to your personal account from the 20th to the 25th of the current month. After my dismissal, I twice appealed to the leadership of the Ministry of Internal Affairs of Russia "<адрес>» with an application for payment for overtime work and non-working holidays for the period of service from DD.MM.YYYY to DD.MM.YYYY, i.e. over the past three years. DD.MM.YYYY a response was received in which it was indicated that in order to calculate overtime work, work on weekends and non-working holidays for the period of service, it is necessary to provide schedules of reporting to duty during the specified period. Those. the employer actually recognized his demands and was ready to pay the debt. He also indicated that the employer had work schedules. He believes that he was paid a smaller salary, and therefore is subject to recalculation. Referring to the provisions of Art. 395 of the Labor Code of the Russian Federation, believes that the statute of limitations for collecting wages is not limited. He indicated that the accounting period for overtime payments is a calendar year. The service schedules indicate the periods when he carried out work. Moreover, during the period of duty for 24 hours, he could not leave the location of the duty station; meals were taken in the duty station, and therefore, all 24 hours must be counted as working time. Order No. dated DD.MM.YYYY states that the duty units of internal affairs departments in their activities are guided by the Constitution of the Russian Federation, the Federal Law and the regulations of the Ministry of Internal Affairs of the Russian Federation within the limits of their powers. In paragraph 23 of the MV order<адрес> The duration of each shift is set at 24 hours, with time for eating and rest for a three-shift shift of 6 hours and for a four-shift shift of 4 hours. In paragraph 24 of this order, employees of the duty shift are prohibited from leaving the premises of the duty station during the entire shift. Clause 26 states that meals and rest for the duty shift should be carried out alternately in the premises of the police department on duty. Those breaks during the work shift that are provided in the Ministry of Internal Affairs system (in the duty station) cannot be considered rest time, since at his own discretion the duty officer cannot use such break time. The above order prohibits him from leaving the duty station during lunch and rest. During a break, an employee is not free from performing his job duties, and such a break must be counted as working time. According to Art. 106 of the Labor Code of the Russian Federation, if an employee cannot leave working time during rest, then it is not considered rest time, since during rest the employee is free from performing work duties and he can use this time at his own discretion. In addition, the checklist book does not reflect substitutions for rest and meals, therefore periods of meals and rest were counted as service time and were subject to timesheets and payment. Normal working hours should not exceed 40 hours per week, and the employer is required to keep records of the time actually worked. The duration of overtime work should not exceed 4 hours for each employee for two consecutive days and 120 hours per year. According to the Order of the Ministry of Internal Affairs of the Russian Federation dated December 14, 2009. No. 960 “On approval of the Regulations on monetary compensation for employees of internal affairs bodies of the Russian Federation”, employees of internal affairs bodies are paid compensation payments: for work performed in excess of the statutory working hours, at night, on weekends and non-working holidays, compensation payments are made for every hour of work in appropriate conditions based on the hourly rate in the following amounts: at night - an additional payment of 35%; on weekends and non-working holidays - single hourly rate - if the work was carried out within the normal working time for the accounting period, double hourly rate - if the work was carried out in excess of the normal working time for the accounting period; overtime: for the first two hours in the amount of one and a half hourly rate, for subsequent hours in the amount of double hourly rate. The hourly rate is determined by dividing the employee's salary by the average monthly number of working hours in a given calendar year, established according to the production calendar, taking into account the working hours of the corresponding category of employees. From the presented duty schedules it is clear that the plaintiff’s duty was organized one day (24 hours) every other day (48 hours), as a result of which 2,469 hours of overtime were generated, including 216 hours on non-working holidays. For the work performed, he was required to accrue wages, taking into account overtime work and work on holidays in accordance with the Labor legislation of the Russian Federation and the guarantees enshrined in the Constitution of the Russian Federation. According to the calculation, he was not accrued or paid wages for work overtime and holidays in the amount of<данные изъяты>rubles He also asked to recover legal costs associated with payment of the cost of gasoline necessary for travel to<адрес>, at the rate of<данные изъяты>rub.

Representative of the defendant, Russian Internal Affairs Directorate for<адрес>Nikiforova O.V. did not appear at the court hearing, in the case materials there is a telephone message from her from DD.MM.YYYY, from which it follows that the representative asks the court to consider the civil case on the merits without her participation, she supports the objections sent from DD.MM.YYYY in full.

According to paragraph 5 of Art. 167 of the Code of Civil Procedure of the Russian Federation, the parties have the right to ask the court to consider the case in their absence and to send them copies of the court decision. The court, guided by Article 167 of the Code of Civil Procedure of the Russian Federation, decided to consider the case without the participation of a representative of the Ministry of Internal Affairs of Russia for<адрес>Nikiforova O.V..

From the written objection of the Russian Ministry of Internal Affairs to<адрес>it follows that the requirements of Belokopytov V.P. to the Russian Ministry of Internal Affairs for<адрес>are unfounded and cannot be satisfied for the following reasons. According to Art. 392 of the Labor Code of the Russian Federation, the plaintiff missed the three-month deadline for going to court to resolve an individual labor dispute, established by law. In addition, according to labor legislation, wages are paid to the employee at least every half month, including for work beyond the established working hours. According to clause 7 of the Regulations on monetary allowances for employees of internal affairs bodies, approved by order of the Ministry of Internal Affairs of Russia dated DD.MM.YYYY No., payment of monetary allowances to employees of internal affairs bodies is made for the current month once, in the period from the 20th to the 25th. Belokopytov, who did not receive full wages for a certain period, must be aware of the violation of his right, namely, to be paid in full, from the date of payment of his basic earnings for the month worked. The plaintiff knew that, despite overtime work during duty, payment was made at the usual rate, however, the claim for payment for overtime work was first submitted to the court only in November 2011. The employment relationship with the employee was terminated, and his wages were accrued. Belokopytov was dismissed from the internal affairs bodies DD.MM.YYYY. He filed a claim for recovery of wages after the termination of his employment relationship with the Ministry of Internal Affairs. The plaintiff served in the Main Directorate of the Ministry of Internal Affairs of Russia "<адрес>", where he was paid wages. Accounting for actually worked night time was carried out at the Main Directorate of the Ministry of Internal Affairs of Russia "<адрес>" Due to the lack of overtime in the duty unit during the disputed period of time, the accounting department of the Main Directorate of the Ministry of Internal Affairs of the Ministry of Internal Affairs of Russia “<адрес>“Belokopytov was not paid any wages for overtime work. In addition, the Ministry of Internal Affairs is not the proper defendant in this dispute, since Belokopytov served in the Main Directorate of the Ministry of Internal Affairs of the Ministry of Internal Affairs of Russia "<адрес>", which is an independent legal entity and acts independently in civil law relations on its own behalf. Regional Ministry of Internal Affairs of Russia<адрес>according to the stated requirements, he is not a defendant, since the payment of wages to Belokopytov was made at the place of service. They ask the court in the lawsuit of V.P. Belokopytov. refuse due to missing the deadline for going to court.

Representative of the defendant, Ministry of Internal Affairs of Russia "<адрес>» Bolkunova N.N. did not agree with the requirements and pointed out the unfoundedness of the stated requirements. She explained that Belokopytov V.P. according to the order of the Internal Affairs Directorate<адрес>from DD.MM.YYYY No. l\s to served in the Department of Internal Affairs for<адрес>from DD.MM.YYYY to DD.MM.YYYY (order of the Ministry of Internal Affairs of Russia on<адрес>from DD.MM.YYYY No.) in the position of assistant department head - operational duty officer of the police department on duty<адрес>from DD.MM.YYYY to DD.MM.YYYY (order of the Department of Internal Affairs on<адрес>from DD.MM.YYYY No. l\s). According to Articles 20, 22 of the Law of the Russian Federation “On the Police” Art. 44 of the Regulations on Service in the Internal Affairs Bodies of the Russian Federation for police officers, the total working time is set at no more than 40 hours per week. If necessary, a police officer may be involved in performing official duties beyond the established time, as well as at night, on weekends and holidays. The plaintiff filed claims for the period<адрес>G<адрес>that the plaintiff missed the three-month deadline for going to court to resolve an individual labor dispute. Belokopytov V.P. did not dispute the circumstances of the timely monthly accrual and payment of allowances during the disputed period. When carrying out duty during the disputed period in accordance with shift schedules, Belokopytov V.P. reliably knew about the volume of work actually carried out by him, including, outside the established working hours for him, on holidays, about the violation of his rights to payment of wages for overtime work, for work on holidays, V.P. Belokopytov found out, or definitely should have found out when he next received a pay slip with a breakdown of the components of the salary accrued to him for the corresponding period, in which there was no indication of the accrual of payment for overtime work, for work on holidays. Considering that the number of shifts per month was established by duty schedules approved by the head of the internal affairs department for<адрес>in accordance with which shift work was carried out, the presence of which by Belokopytov V.P. was not disputed, and was also recorded in the night work report cards of the duty department employees. The duty officer has the opportunity to calculate the actual time worked. In addition, Belokopytov V.P. it was reliably known that he performed work on holidays in accordance with shift schedules, and about the time actually spent on duty. According to paragraph 23 of the Order of the Ministry of Internal Affairs of the Russian Federation dated February 26, 2002. No. 174dsp “On measures to improve the activities of duty units of the system of internal affairs bodies”, duty unit employees work in shifts. The duration of each shift is set at 24 hours. While on duty, employees are alternately provided with breaks for eating and short-term rest, with a total duration of 6 hours each for a three-shift duty, and 4 hours for a four-shift duty. At the end of duty, duty station employees are given 48 or 72 hours of rest, respectively. If necessary, police officers may be involved in performing official duties beyond the established time, as well as on weekends and holidays. The work of duty department employees does not fall under the list of cases of involvement in overtime work established by labor legislation, since overtime work exceeds 4 hours for each employee for two days in a row and 120 hours per year. The work of the duty station employees has a different legal basis, namely the service of the employees of the police duty station for<адрес>regulated by the provisions of Art. 103 of the Labor Code of the Russian Federation, according to which shift work - work in two or three shifts is introduced when the duration of the production process exceeds the permissible duration of daily work, while each group of workers must work within the established working hours in accordance with the shift schedule. This article establishes the basis for the summarized recording of working time, i.e. impossibility of observing daily working hours for this category of employees. Working hours must be recorded in accordance with Article 104 of the Labor Code of the Russian Federation. The accounting period cannot exceed one year. The continuation of weekly uninterrupted rest is at least 42 hours when duty officers work three shifts. According to the order of the Ministry of Internal Affairs of the Russian Federation dated DD.MM.YYYY No. “On introducing changes to the manual on organizing the activities of duty units of the RF ATS system,” duty unit employees are allowed to leave the duty unit premises for eating and short-term rest. Labor legislation provides for breaks for rest and meals lasting no more than two hours and no less than 30 minutes, which are not included in working hours. The six hours provided for eating and short rest for each duty officer during a shift are not included in working hours. According to clauses 113.1 - 113.3 of the Order of the Ministry of Internal Affairs of the Russian Federation dated DD.MM.YYYY No. “On approval of the Regulations on monetary allowances for employees of internal affairs bodies,” an additional payment is made for night work at the rate of 35% of the hourly rate, calculated by dividing the monthly salary of the employee’s allowance by the average monthly number of working hours in a calendar year. It is impossible to keep track of working hours using the presented schedules. The plaintiff did not provide evidence of overtime work. He asks that the demands be refused.

After listening to the participants in the process and examining the case materials, the court comes to the following conclusions.

According to a certificate from DD.MM.YYYY from the head of the Main Directorate of the Ministry of Internal Affairs of Russia "<адрес>» Belokopytov V.P. served in the internal affairs bodies<адрес>with DD.MM.YYYY (ATC order for<адрес>from DD.MM.YYYY No. l/s) to DD.MM.YYYY (order of the Ministry of Internal Affairs of Russia on<адрес>from DD.MM.YYYY No.). In the period from DD.MM.YYYY to DD.MM.YYYY Belokopytov V.P. served as assistant department head - operational duty officer of the police department on duty<адрес>.

From the provisions of Part 1 of Art. 392 of the Labor Code of the Russian Federation it follows that an employee has the right to go to court for resolution of an individual labor dispute within three months from the day when he learned or should have learned about a violation of his right, and in disputes about dismissal - within one month from the date of delivery to him copies of the dismissal order or from the date of issue of the work book.

The defendants claimed that the plaintiff missed the deadline to go to court.

The plaintiff did not agree with the defendants’ petition, indicated that the statute of limitations was three years, and learned about the violated right only upon receipt of the final pay upon dismissal, which he received in December 2011. At the same time, he explained that he was not given pay slips, he received wages monthly from the 20th to the 25th of the current month to your account. He also indicated that in 2009 he contacted management with a report on the need to make payments to him for overtime work, but such payments were not made.

Considering the defendants' petition for the plaintiff to skip the statute of limitations, the court finds it correct to refer the defendants to the provisions of Art. 392 of the Labor Code of the Russian Federation, and does not agree with the plaintiff’s argument that the period for his demands is three years.

Establishing the presence of valid reasons that served as the basis for the plaintiff to miss the statute of limitations, the trial proceeds from the fact that at the court hearing the plaintiff indicated that he did not have the opportunity to go to court with a demand for recovery of payment for overtime work, since he wanted to continue working at the police department, and after presenting such a demand it would have been impossible. At the same time, the plaintiff addressed the head of the police department for<адрес>with a report from DD.MM.YYYY on the production of payment for overtime work for the period from 2007 to the present.

At the same time, in court, the plaintiff explained that after presenting the specified report to the manager, he thought that the appropriate payments would be made to him, but this was not done. Thus, the court finds that already as of DD.MM.YYYY the plaintiff should have known that his right to receive wages for performing overtime work was being violated, but did not apply to the court with such a demand. The plaintiff’s indication that he did not have the opportunity to bring a claim in court, since he was in an employment relationship with the Department of Internal Affairs and filing a claim could have a negative impact on his employment relationship, the court cannot recognize as a valid reason for missing the statute of limitations. The plaintiff also addressed DD.MM.YYYY with a statement addressed to the head of the Ministry of Internal Affairs of Russia “<адрес>» on making payments for overtime work, work on weekends and non-working holidays for the period of service from DD.MM.YYYY to DD.MM.YYYY. At the same time, the plaintiff did not provide evidence that the accounting period of the summarized working time for the employer was a calendar year, and therefore, the trial proceeds from the general rule for determining working time accounting - calendar month. This circumstance is also confirmed by Art. 20 of the Law of the Russian Federation “On the Police” (repealed with DD.MM.YYYY), which states that for police officers the total working time is set at no more than 40 hours per week.

Based on the fact that the plaintiff received a monthly allowance from the 20th to the 25th of the current month, the plaintiff could find out about its amount both from the pay slips that he could request from the accounting department, and from the statement of the personal account to which the monetary allowance was transferred, which he could receive from the bank, and also taking into account that the plaintiff DD.MM.YYYY had already submitted a report on the payment of overtime, and based on the fact that the statement of claim was sent by the plaintiff by mail DD.MM.YYYY, which follows from the stamp on envelope, court comes to the conclusion that the plaintiff missed the statute of limitations on claims for the collection of payment for overtime work and work on holidays for the period from August 2008 to July 2011. In this regard, the requirements of Belokopytov V.P. in this part are not subject to satisfaction.

Considering the plaintiff’s claim to recover payment for overtime work and work on weekends and non-working holidays for August 2011, the court comes to the following.

From the job description of the assistant department head - operational duty officer of the police department on duty<адрес>from DD.MM.YYYY it follows that under normal conditions the duration of work is set at 24 hours. During duty, breaks are provided for eating and short-term rest with a total duration: with a three-shift duty - 6 hours, with a four-shift duty - 4 hours. At the end of duty, rest is provided for 48 or 72 hours, respectively. The operational duty officer is required to remain in the duty room at all times. In extreme conditions, the daily routine and routine are regulated by orders of the Ministry of Internal Affairs of the Russian Federation, the Internal Affairs Directorate, and the Department of Internal Affairs.

According to clause 23 of the order of the Ministry of Internal Affairs of the Russian Federation dated DD.MM.YYYY No. dsp “On measures to improve the activities of duty units of the system of internal affairs bodies of the Russian Federation,” the duration of each shift is set at 24 hours. While on duty, employees are alternately given breaks for eating and short-term rest with a total duration of each: with a three-shift duty - 6 hours, with a four-shift duty - 4 hours. At the end of duty, duty station employees and employees temporarily performing their duties are given 48 or 72 hours of rest, respectively. Paragraph 24 of the said order lists the cases in which duty station employees are allowed to leave the duty station premises, where eating is indicated as one of such cases. Paragraph 26 of the order establishes that the duty shift personnel take meals and rest alternately in the premises of the duty department (meals are allowed along with the duty shift in the canteen (buffet) located in the police department building).

In accordance with the order of the Department of Internal Affairs for<адрес>dated DD.MM.YYYY No. established the work schedule for police personnel<адрес>. For the duty unit, a three-shift duty schedule has been established, the daily duty is determined to consist of: an assistant to the head of the department - an operational duty officer; assistant operational duty officer; duty driver. The duration of each shift of the duty unit is determined to be 24 hours. It has been established that while on duty, the duty department employees are alternately given breaks for eating and short rest for a total duration of every XXX hours (2 hours - during the day, 4 hours - at night). At the end of duty, duty station employees are given 48 hours of rest.

From the provisions of Art. 42 of the Law of the Russian Federation “On the Police” (DD.MM.YYYY came into force) it follows that a police officer is remunerated in the form of monetary allowance, which is the main means of his material support and stimulation of official activities in the position he replaces.

In accordance with the Resolution of the Armed Forces of the Russian Federation from DD.MM.YYYY N 4202-1 (as amended from DD.MM.YYYY, as amended from DD.MM.YYYY) “On approval of the Regulations on service in the internal affairs bodies of the Russian Federation and the text The oath of an employee of the internal affairs bodies of the Russian Federation" employees of the internal affairs bodies are subject to the working hours established by the labor legislation of the Russian Federation. In necessary cases, employees of internal affairs bodies may be involved in performing official duties beyond the established time, as well as at night, on weekends and holidays. In these cases, they are provided with compensation in the manner established by the labor legislation of the Russian Federation.

According to Art. 103 of the Labor Code of the Russian Federation, shift work - work in two, three or four shifts - is introduced in cases where the duration of the production process exceeds the permissible duration of daily work, as well as for the purpose of more efficient use of equipment, increasing the volume of products or services provided<адрес>In shift work, each group of workers must work during the established working hours in accordance with the shift schedule.

The Labor Code establishes the permissible (maximum) duration of daily work only for certain categories of workers (Article 94 of the Labor Code of the Russian Federation). For other categories of workers, the duration of daily work (shift) is established by internal labor regulations, collective agreement, agreement, based on the normal weekly working hours, which should not exceed 40 hours.

In accordance with Art. 149 of the Labor Code of the Russian Federation when performing work in conditions deviating from normal (when performing work of various qualifications, combining professions (positions), overtime work, working at night, weekends and non-working holidays and when performing work in other conditions deviating from normal) , the employee is made appropriate payments provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, and an employment contract. The amounts of payments established by a collective agreement, agreements, local regulations, employment contract cannot be lower than those established by labor legislation and other regulations containing labor law norms.

It was not disputed by the parties that the plaintiff was assigned a 40-hour work week.

According to Art. 99 of the Labor Code of the Russian Federation, overtime work is work performed by an employee on 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 time - in excess of the normal number of working hours for the accounting period. The provisions of this norm establish cases of involving an employee in overtime work, both on the basis of his written consent, and in the absence of such consent.

At the same time, Art. 99 of the Labor Code of the Russian Federation determines that in order to attract an employee to carry out overtime work, the employer’s initiative must take place. Moreover, such an initiative should be expressed in the issuance of orders (instructions) to involve the employee in overtime work, indicating the period of such work. However, the case materials do not contain evidence confirming that the plaintiff, at the initiative of the employer, was involved in overtime work.

Due to the position held by the plaintiff, his job was to serve around the clock in accordance with the approved schedule. From the duty schedules available in the case materials, it follows that the plaintiff performed work on a shift schedule of duty “every two days.” According to the schedule for August 2011 Belokopytov V.P. was on duty DD.MM.YYYY, DD.MM.YYYY, DD.MM.YYYY.

At the same time, the court takes into account that by order of the Ministry of Defense<адрес>chipboard, as well as by order of the Department of Internal Affairs on<адрес>It is stipulated that out of the 24 hours during which service is carried out on a shift, 6 hours are provided for meals and short-term rest (2 hours during the day and 4 hours at night).

This period of time is not included in the calculation of working hours, despite the fact that during a break the employee of the duty station is prohibited from leaving it, since the employee can use the rest time at his own discretion, including for sleeping at night, which was confirmed by the plaintiff at the court hearing , while during sleep the employee certainly does not perform his job duties.

The plaintiff’s indication that even at night, if someone was taken to the duty department, he could be woken up, and he did not fully use his rest time, the court cannot take into account, since the employer established only the general duration of rest time, without indicating a specific period of such rest, since it is impossible to establish such a period within the framework of the duty unit, while the employee is not deprived of the opportunity to use the rest time in different parts.

Thus, excluding time for rest and food, in August 2011 the plaintiff worked 36 hours per week, which does not exceed the norm established by the Labor Code of the Russian Federation; in total, the plaintiff worked 54 hours in August. Under such circumstances, the court does not see any grounds for satisfying the plaintiff’s claims.

Based on the above and guided by Articles 194 - 199 of the Code of Civil Procedure of the Russian Federation, the court,

decided:

To satisfy the demands of Belokopytov V.P. to the Ministry of Internal Affairs of Russia "<адрес>", ATC<адрес>refuse to collect wages for working overtime and holidays.

The decision can be appealed to the Amur Regional Court through the Mikhailovsky District Court within one month from the date the court decision is made in final form by filing an appeal.

Chairman Kundikova Yu.V.