The Supreme Court of the Russian Federation composed of:
Judges of the Supreme Court of the Russian Federation Zelepukina A.N.,
Under secretary Stepanova E.N.,
With the participation of prosecutor Voskoboynikova E.L.,
having considered in open court a civil case on T.’s application to recognize clause 29 of the “Rules on regular and additional leaves”, approved by the CNT of the USSR on April 30, 1930, as invalid and not subject to application,
installed:
In accordance with paragraph 29 of the “Rules on regular and additional leaves”, approved by the People's Commissar of the USSR on April 30, 1930, upon dismissal of an employee who has not used his right to leave, he is paid compensation for unused leave. In this case, “full compensation is paid in the amount of average earnings for the period of full leave.
Proportional compensation is paid in the following amounts:
a) for a vacation of 12 working days - in the amount of daily average earnings for each month of work subject to credit during the period giving the right to vacation;
b) for a vacation of 24 working days and for a monthly vacation - in the amount of two days' average earnings for each month;
c) for a one-and-a-half-month vacation - in the amount of three days, and for a two-month vacation - in the amount of four days' average earnings for each month.
When calculating the period of work giving the right to compensation, Section 1 of these Rules applies accordingly.”
T. filed the above statement, in which he indicated a violation of his right to rest by the contested legal act and equal compensation for unused vacation.
In support of the stated requirements, the statement argued that this regulatory legal act contradicts Part 3 of Art. 55 and art. 37 of the Constitution of the Russian Federation, as well as Art. Art. 3, 114 and 127 Labor Code Russian Federation.
T. did not appear at the court hearing, asked to consider the case in his absence, and therefore his failure to appear does not interfere with the consideration of the case.
Representative of the Ministry of Health and social development of the Russian Federation, R. asked that the application be dismissed, since the contested part of the normative legal act does not contradict the current legislation.
Having heard the conclusion of the prosecutor of the General Prosecutor's Office of the Russian Federation E.L. Voskoboynikova, who believed that the application should be left unsatisfied, the Supreme Court of the Russian Federation finds it subject to being left unsatisfied for the following reasons.
On April 30, 1930, in accordance with the existing procedure, the CNT of the USSR “Rules on regular and additional vacations” was approved, paragraph 29 of which established the procedure for calculating compensation for unused vacation.
This regulatory legal act is not included in the list of individual legislative acts that have lost force, set out in Art. 422 of the Labor Code of the Russian Federation, and according to Art. 423 of this Code, legislative acts of the former USSR in force on the territory of the Russian Federation within the limits and in the manner provided for by the Constitution of the Russian Federation, Resolution of the Supreme Council of the RSFSR dated December 12, 1991 N 2014-1 “On the ratification of the Agreement on the creation of the Commonwealth of Independent States”, apply , since they do not contradict this Code.
In accordance with Art. 127 of the Labor Code of the Russian Federation, upon dismissal, the employee is paid monetary compensation for all unused vacations.
Cash compensation for unused vacation is provided for in Art. 291 of the Labor Code of the Russian Federation for employees who have entered into an employment contract for a period of up to two months, which is paid upon dismissal at the rate of two working days per month of work.
The applicant baselessly refers to the presence of contradictions in the contested part normative act Art. Art. 3, 114 and 127 of the Labor Code of the Russian Federation.
Yes, Art. 3 of the Labor Code of the Russian Federation prohibits discrimination in the sphere of labor, which includes restrictions in labor rights and freedoms or advantages based on sex, race, color, nationality, language, origin, property, social and official position, age, place of residence, attitude to religion, political beliefs, membership or non-membership public associations, as well as from other circumstances not related to business qualities employee.
It does not follow from the contested provisions of the normative legal act that it is aimed at discriminating against workers in the world of work.
In accordance with Art. 114 of the Labor Code of the Russian Federation, employees are granted annual leave while maintaining their place of work (position) and average earnings.
This norm of the Labor Code of the Russian Federation also does not determine the procedure for calculating compensation for unused vacation, and therefore the part of the regulatory legal act challenged by the applicant does not contradict it.
The norms of the Constitution of the Russian Federation cited by T. provide the right to work, including the right to rest and annual paid leave (Article 37), a ban on restriction of rights, which is possible only by federal law in these cases (Article 55) in order to protect the foundations of the constitutional order , morality, health, rights and legitimate interests of other persons, ensuring the defense of the country and state security, are also not violated by the contested part of the normative act.
In accordance with Part 2 of Art. 253 of the Code of Civil Procedure of the Russian Federation, the court found that the contested normative legal act or part of it contradicts federal law or another normative legal act of greater legal force, recognizes the normative legal act as ineffective in whole or in part.
Based on the above, guided by Art. Art. 194 - 199, 253 part 1 Code of Civil Procedure of the Russian Federation, Supreme Court of the Russian Federation
T.’s application to recognize clause 29 of the “Rules on regular and additional leaves”, approved by the People’s Commissariat of the USSR on April 30, 1930, as invalid and not subject to application, shall be left without satisfaction.
The court decision can be appealed to the Cassation Board of the Supreme Court of the Russian Federation within 10 days from the date of its production in final form.
RULES ABOUT REGULAR AND ADDITIONAL LEAVES
(Extract)
(as amended by the Resolutions of the People's Commissariat of the USSR dated 08/13/30, dated 12/14/30 N 365, dated 19.01.31 N 21, dated 31.01.31 N 32; Resolutions of the All-Union Central Council of Trade Unions from 02.02.36; Resolution of the Council of Ministers of the USSR dated 06.12.56 N 1586)
I. Right to leave
1. Every employee who has worked for a given employer for at least 5 1/2 months has the right to receive regular leave. The next vacation is granted once during the year the employee works for a given employer, counting from the date of entry to work, that is, once per working year. The employee’s right to the next regular leave for the new working year arises after 5 1/2 months from the end of the previous working year. If an employee is transferred at the proposal of a labor body or a commission attached to it or at the proposal of a party, Komsomol or professional organization from one enterprise or institution to another without a break in work, then the time worked for the previous employer is counted towards the length of service giving the right to leave. , - provided that the employee, at his own request, did not receive compensation for unused vacation during this time. (as amended by the Decree of the People's Commissariat of the USSR dated January 31, 1931 N 32 - "Izvestia of the People's Commissariat of the USSR", 1931, No. N 5 - 6) 2. There may be cases when an employee quits before the end of the working year for which he has already received leave. In these cases, when calculating, the employer has the right to wages make deductions for unworked vacation days. Withholding is not allowed if the employee quits due to: a) liquidation of an enterprise or institution or its individual parts, reduction of staff or work, as well as reorganization or temporary suspension of work; b) entry into active military service; c) business trips in accordance with the established procedure to a university, technical school, workers' school, preparatory department at a university or to training courses for a university or workers' school; d) transfer to another job at the suggestion of the labor body or its commission, as well as a party, Komsomol or trade union organization; d) revealed unsuitability for work. If the employer, having the right to withhold, was actually unable to make it at all or partially during settlement (for example, due to the insufficiency of the amounts due upon settlement), then further collection (through the court) is not made. This entire article applies regardless of whether the vacation is used after 5 1/2 months of work or before this period - in advance (Article 12). (as amended by the Decree of the People's Commissariat of the USSR dated December 14, 1930 N 365 - "Izvestia of the People's Commissariat of the USSR", 1930, No. 36) 3. If an employee quits before the end of the working year for which he has already received vacation or full compensation, then the new employer’s 5 1/2-month period of work, which gives the right to vacation, is calculated as follows: a) if upon dismissal a deduction was made for all unworked vacation days, then the 5 1/2-month period is counted from the date of arrival to the new employer; b) if upon dismissal the employer, having the right to withhold, did not actually make it at all or partially, then the 5 1/2-month period begins when the employee has worked for the new employer for one month for each unworked day of vacation for which wages remain unwithheld (and in case of 18- or 24-day vacation from the previous employer - one month for every 1 1/2 or 2 days); c) if upon dismissal the employer did not have the right to withholding, then the 5 1/2-month period begins after the expiration of the working year for which the leave or full compensation was received from the previous employer; in this case, the time of break from work after dismissal is also counted towards the one-year period
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RULES about regular and additional vacations
Document with changes made: ; ; ; ; Decree of the Council of People's Commissars of the USSR of October 22, 1942 N 1725; by Decree of the Council of Ministers of the USSR of December 6, 1956 N 1586; Resolution of the USSR Council of Ministers of March 21, 1961 N 254; joint resolution of the State Committee for Labor of the USSR and the Presidium of the All-Union Central Council of Trade Unions of December 29, 1962 N 377/30; by order of the Ministry of Health and Social Development of Russia dated April 20, 2010 N 253.
____________________________________________________________________ These Rules apply to the extent that they do not contradict the Labor Code of the Russian Federation. - Database manufacturer's note. ____________________________________________________________________ ____________________________________________________________________ . . ____________________________________________________________________
(Published on the basis of the resolution of the Council of People's Commissars of the USSR dated February 2, 1930 - protocol No. 5/331, paragraph 28). ________________ The resolution has not been published.
I. Right to leave
1. Every employee who has worked for a given employer for at least 5 months has the right to receive regular leave.
The next vacation is granted once during the year the employee works for a given employer, counting from the date of entry to work, i.e. once per working year.
The employee has the right to the next regular leave for the new working year after 5 months from the end of the previous working year.
Employees who joined this employer in 1929 or earlier are granted leave in compliance with Article 37.
If an employee is transferred at the proposal of a labor body or a commission attached to it, or at the proposal of a party, Komsomol or professional organization from one enterprise or institution to another, without a break in work, then the time worked at the previous employer - provided that the employee, at his own request, did not receive compensation for unused vacation during this time (part additionally included by Decree of the People's Commissariat of Labor of the USSR of January 31, 1931 N 32).
Example. The employee entered the plant on February 3, 1930. On July 18, 1930, he receives the right to another vacation for the year of his work, i.e. until February 3, 1931. He will receive the right to the next vacation for the second year of work until February 3, 1932 on July 18, 1931, etc.
2. There may be cases when an employee quits before the end of the working year for which he has already received leave. In these cases, when making calculations, the employer has the right to deduct from wages for unworked vacation days.
Withholding is not allowed if the employee quits due to:
a) liquidation of an enterprise or institution or its individual parts, reduction of staff or work, as well as reorganization or temporary suspension of work;
b) entry into active military service;
c) business trips in accordance with the established procedure to a university, technical school, workers' school, preparatory department at a university or to training courses for a university or workers' school;
d) transfer to another job at the suggestion of the labor body or its commission, as well as a party, Komsomol or professional organization;
d) revealed unsuitability for work.
The paragraph is not valid on the territory of the Russian Federation - order of the Ministry of Health and Social Development of Russia dated April 20, 2010 N 253. ____________________________________________________________________ Paragraph 3 of paragraph 2 of these Rules was declared invalid on the territory of the Russian Federation on the basis of Order of the Ministry of Health and Social Development of Russia dated March 3, 2005 N 190. Order of the Ministry of Health and Social Development of Russia dated March 3, 2005 N 190 was returned without consideration by the Ministry of Justice of the Russian Federation (letter of the Ministry of Justice of Russia dated March 31, 2005 N 01/2337-VYA) and canceled on the basis of order of the Ministry of Health and Social Development of Russia dated April 20, 2010 N 252. ____________________________________________________________________
This entire article applies regardless of whether the vacation is used after 5 1/2 months of work or before this period - in advance (Article 12).
3. If an employee quits before the end of the working year for which he has already received vacation or full compensation, then the new employer’s 5 1/2-month period of work, which gives the right to vacation, is calculated as follows:
a) if upon dismissal a deduction was made for all unworked vacation days, then the 5 1/2-month period is counted from the date of joining the new employer;
b) if upon dismissal the employer, having the right to withhold, did not actually make it at all or partially, then the 5 1/2-month period begins when the employee has worked for the new employer for one month for each unworked day of vacation for which wages remain unwithheld (and in case of 18- or 24-day vacation from the previous employer - one month for every one and a half or two days);
c) if upon dismissal the employer did not have the right to withholding, then the 5 1/2-month period begins after the expiration of the working year for which the leave or full compensation was received from the previous employer; in this case, the one-year period also includes the time of a break from work after dismissal, as well as the time spent in jobs that do not give the right to leave (temporary, seasonal, etc.).
Example 1 (to paragraph "b"). The employer, dismissing the employee on August 15, 1931, had the right to withhold wages from him for 5 unworked days of vacation, but in fact withheld it only for 2 days (since the employee was ill for the remaining days of August). On September 1, 1931, the employee joined a new employer. His 5 1/2-month period for a new leave will begin only on December 1, 1931 and will expire on May 15, 1932.
Example 2 (to item "c"). On October 1, 1931, due to staff reduction, the employer dismissed an employee who had served him since March 1, 1931 and had already used his vacation. On October 15, 1931, the employee joined a new employer. His 5 1/2-month period for a new vacation will begin only on March 1, 1932 and will expire on August 15, 1932. (Article as amended by the resolution of the People's Commissariat of Labor of the USSR dated December 14, 1930 N 365.
4. The following are included in the 5-month period of work, which gives the right to the next vacation:
a) actual time worked;
b) the time when the employee did not actually work, but the employer was obliged by law or collective agreement to retain his position and earnings in full or in part (including the time of forced absence paid by the employer in case of improper dismissal and subsequent reinstatement);
c) the time when the employee, while retaining his position, did not actually work, but received benefits from the insurance fund (illness, injury, pregnancy, childbirth, quarantine, caring for a sick family member).
The rest of the time during which the employee did not actually work is not counted towards the employee.
Example. The worker entered the workshop on March 5. From April 1 to April 15, he was sick and received benefits from the insurance fund for these days; on the days of May 1-5, he was called up for a short-term training camp in the territorial unit; from June 1 to June 10, he did not go to work for reasons recognized by the employer as valid, but without payment for the missed time. The right to leave for such an employee arises after 5 months and another 10 days, i.e. August 30.
5. Does not apply - joint resolution of the State Committee for Labor of the USSR and the Presidium of the All-Union Central Council of Trade Unions dated December 29, 1962 N 377/30..
6. Receipt of leave or compensation for it must be noted by the employer in the pay book and work list - in accordance with the established forms of these documents. The same note must be included in the certificate issued to the employee upon dismissal.
In all these cases, the period for which the leave or compensation was granted must be indicated (for example, “vacation was used for the period before June 1, 1931”). If, upon dismissal of an employee, the employer has the right to withhold wages for unworked vacation days (Article 2), then a note is added to the employee’s documents: “withholding for unworked vacation days has been made in full” or “wages for so many vacation days have remained unwithheld.” (part supplemented by Decree of the People's Commissariat of Labor of the USSR dated December 14, 1930 N 365.
If the documents submitted by the employee do not contain instructions on the use of leave at the previous job, the employer may require a corresponding certificate from the employee or request it himself from the previous place of work.
II. Duration of vacation
7. The next vacation for adult employees is granted in all cases for 12 working days, with the addition of days off falling during vacation time.
In the same amount, full additional leave is provided to employees employed in particularly harmful and dangerous conditions, according to the lists of professions established by the People's Commissariat of Labor or a collective agreement, unless these lists provide for leave of a different duration.
8. Employees with irregular working hours may be provided with additional leave as compensation for workload and work outside normal hours.
The duration of this vacation is government institutions and enterprises and mixed joint stock companies with predominant participation of state capital cannot exceed 12 working days.
9. Minor workers who are under 18 years of age on the day the right to leave arises, as well as all students of factory and mining apprenticeship schools and schools of mass professions, are granted regular leave in the amount of one calendar month (for example, from June 5 to July 5 ), but not less than 24 working days.
If these minors or students are allowed, in accordance with the established procedure, to work in especially harmful and dangerous professions listed in the NKT lists, then the next leave is granted to them in a total of one and a half calendar months, but not less than 36 working days.
III. Time and procedure for using vacation
10. Vacations are granted to employees at any time throughout the year in the order of priority established by the Labor and Labor Committee, and in the absence of the Labor and Labor Committee - by agreement of the employer with the relevant trade union body.
The order of granting vacations for each year is established no later than January 1 of this year (for 1931 - no later than January 25, 1931) (part as amended by Resolution of the People's Commissariat of Labor of the USSR dated January 19, 1931 N 21. *10.2)
Leave can be granted either sequentially to one employee after another, or simultaneously to all or some groups of employees (for example, if it is inevitable that the enterprise will be suspended for repairs).
In the event of an unexpected suspension of work in an enterprise or institution or in its individual parts (due to an accident, natural disaster, etc.), by decision of the RKK, vacations may be granted to all groups or some groups of workers simultaneously, with a deviation from the previously established queue.
11. Vacations should not be confined exclusively to the 1st and 15th of each month, but should be distributed, if possible, evenly throughout the month.
12. When establishing a queue, provision may be made for granting leave to one or another employee before he becomes entitled to leave (in advance).
Part excluded by Decree of the People's Commissariat of Labor of the USSR dated December 14, 1930 N 365..
The example was excluded by Decree of the People's Commissariat of Labor of the USSR dated December 14, 1930 N 365..
13. Leave for minor workers is provided (in the order of priority established by the RKK) according to general rule in summer. This does not deprive minors of the right to use vacation at other times of the year.
14. There may be cases when an employee’s right to regular and additional leave arises at different times. In such cases, both leaves are granted to him simultaneously in full within the period determined by the RKK when establishing the general queue of leaves. In this case, the period of work for a new vacation for the next working year is calculated separately for the next and additional vacations.
Example. An employee who entered the plant on March 10, 1930 is transferred to a hazardous workshop on May 10. His right to another vacation begins on August 25, and for an additional one only on October 25. He is granted both leaves on a first-come, first-served basis from October 1. Next year, he again has the right to new holidays; for the first vacation - August 25, and for the second - October 25.
15. Leave for a combined position is granted simultaneously with leave for the main position.
16. The employer is obliged to promptly submit for consideration by the RKK (and in the absence of the RKK - for the consideration of the trade union) a draft distribution of the vacation queue.
The employer is also obliged to notify each employee of the start and end time of his vacation. Notification is made no later than fifteen days in advance by posting relevant notices in workshops, departments and other places of work.
Employees receiving leave on an individual basis (for example, when rescheduling their leave) must be notified by written notice.
If, by decision of the RSC, leave is granted to a group of employees out of turn due to an accident, natural disaster, etc., then notification of the employees about the time of their leave must be made no later than two days in advance.
17. The next or additional leave must be postponed to another period or extended in the following cases:
a) in case of temporary incapacity for work of an employee, certified by a sick leave certificate (certificate of incapacity for work) (subparagraph as amended by Resolution of the Council of Ministers of the USSR of December 6, 1956 N 1586;
b) in case of involvement of an employee in the performance of state or public duties;
c) in case of arrest of an employee;
d) in other cases provided for by special regulations.
The employer has the right to require the employee to submit documents proving the impossibility of using vacation at the appointed time.
In addition, at the special request of the employee, the vacation must be postponed even if the employer did not promptly notify the employee about the time of his vacation or did not pay wages for the vacation in advance before the start of the vacation.
18. If the reasons preventing the employee from going on vacation occurred before it began, then new term vacation is determined by agreement between the employer and the employee.
If these reasons occur while the employee is on vacation, then the period for returning from vacation is automatically extended by the corresponding number of days, and the employee is obliged to immediately notify the employer about this.
These days are paid by the employer if, by law or contract, he was obliged to pay wages to the employee during the performance of state or public duties or during the arrest.
When vacation is extended due to temporary disability, the employer does not pay for additional days.
Example 1. An employee went on vacation on September 15 for a month. From October 1 to October 10, he was sick and received a sick leave certificate and benefits from the insurance fund. His leave should be extended until October 25, without payment by the employer, since thanks to the issuance of benefits, the additional days were already paid when the leave was granted. But if the employee has not received sick leave, the vacation cannot be extended.
Example 2. An employee, while on vacation, was summoned to court by an expert for 3 days. The vacation must be extended by 3 days with payment for these days according to average earnings.
19. Transfer of the entire vacation in other cases, except for those specified in Article 17, is allowed by agreement of the employer and employee or by decision of the RKK, and division into parts of the next vacation (including summed up) is by agreement of the employer and employee.
In the absence of the specified conditions, transferring and splitting vacation is not allowed.
IV. Maintaining your position and earnings during vacation
20. Dismissal of an employee who is on regular or additional leave is not permitted, except in the following cases:
a) complete liquidation of an enterprise or institution;
b) suspension of work in an enterprise or institution as a whole for a period of more than one month for production reasons;
c) entry into force of a guilty verdict in a case directly related to work in a given enterprise or institution;
d) in the case when dismissal is made in order to clean the apparatus in the first or second category.
21. During the employee’s stay on regular or additional leave, his average earnings are retained.
Payment of earnings is made on the eve of the start of the vacation.
22. If during the employee’s stay on vacation his salary has changed, then recalculation with the employee in connection with this change is not made, except in the case of an increase in the fixed rate or the employee’s salary paid on a time basis. The enterprise or institution is obliged to pay this employee the difference between the old and new rate or salary for the period from the date of the increase in pay.
Recalculation is carried out in all cases where errors are detected in the calculation of wages.
V. Summation of vacations and compensation for vacations
23. Failure to provide the next vacation in the current year is allowed only if the provision of vacation to this employee may adversely affect the normal operation of an enterprise or institution.
To not provide leave, an agreement between the employer and the employee and approval of this agreement by the pricing and conflict commission is required. If an agreement between the employer and the employee is not reached, the issue is resolved by the RKK in a conflict manner.
24. Failure to provide regular vacations for two consecutive years is prohibited.
25. Failure to provide regular leaves to minors, as well as additional leaves in particularly harmful and dangerous professions, is prohibited - except in cases of dismissal of an employee.
26. In addition to cases of direct non-provision of leave (Article 23), leave is considered unused (in whole or in part) due to the fault of the employer also in the following cases:
a) if the vacation remains unused due to the employer’s failure to take measures to establish a vacation queue;
b) if the vacation, which was subject to mandatory transfer, was not transferred to a new term.
27. In case of non-use of vacation (in whole or in part) due to the fault of the employer, the employee must be paid monetary compensation for the unused vacation or next year the vacation must be extended for the unused period.
To accumulate leave, an agreement between the employer and the employee concerned is sufficient. Summation of leave in case of disagreement of the employer or employee, as well as any payment monetary compensation for vacation (except in cases of dismissal) is allowed only by decision of the RKK.
An employee’s refusal to use vacation within the prescribed period without agreement with the employer, and if an agreement is not reached, without a decision by the RKK, does not give the employee the right to compensation or summation of vacation.
28. When dismissing an employee who has not used his right to vacation, he is paid compensation for unused vacation.
At the same time, employees dismissed for any reason who have worked for this employer for at least 11 months, which are subject to credit towards the period of work giving the right to leave, receive full compensation.
Full compensation is also received by employees who have worked from 5 to 11 months if they are dismissed as a result (paragraph as amended by the Resolution of the People's Commissariat of Labor of the USSR dated August 13, 1930 N 267:
a) liquidation of an enterprise or institution or its individual parts, reduction of staff or work, as well as reorganization or temporary suspension of work (the clause was additionally included by Decree of the People's Commissariat of Labor of the USSR of August 13, 1930 N 267);
b) entry into active military service (the clause was additionally included by Decree of the People's Commissariat of Labor of the USSR of August 13, 1930 N 267);
c) business trips in the prescribed manner to universities, technical schools, workers' faculties, preparatory departments at universities and training courses for universities and workers' faculties (the clause was additionally included by Decree of the People's Commissariat of Labor of the USSR dated August 13, 1930 N 267);
d) transfers to another job at the suggestion of labor bodies or their commissions, as well as party, Komsomol and professional organizations(the clause was additionally included by Decree of the People's Commissariat of Labor of the USSR dated August 13, 1930 N 267);
e) revealed unsuitability for work (the clause was additionally included by Decree of the People's Commissariat of Labor of the USSR of August 13, 1930 N 267).
In all other cases, employees receive proportional compensation. Thus, proportional compensation is received by employees who have worked from 5 to 11 months if they quit for any reasons other than those indicated above (including at their own request), as well as all employees who have worked for less than 5 months, regardless of the reasons dismissals. *28.4)
29. Full compensation is paid in the amount of average earnings for the period of full leave.
Proportional compensation is paid in the following amounts: *29.2)
a) for a vacation of 12 working days - in the amount of daily average earnings for each month of work, subject to offset against the period giving the right to vacation;
b) for a vacation of 24 working days and for a monthly vacation - in the amount of two days' average earnings for each month;
c) for a one-and-a-half-month vacation - in the amount of three days, and for a two-month vacation - in the amount of four days' average earnings for each month.
When calculating the period of work giving the right to compensation, Section I of these Rules is applied accordingly.
Example 1. An employee started work on June 1, 1930 and left on March 1, 1931. He has the right to receive compensation for 9 months of work, i.e. for a vacation of 12 working days - 9 days, for a vacation of 24 working days and a month's vacation - 18 days, for a one and a half month vacation - 27 days, and for a two-month vacation - 36 days based on the daily average earnings.
Example 2. An employee started work on March 1, and from June 1 was transferred to a workshop with hazardous working conditions. Upon dismissal on August 1, he will receive compensation: for the next vacation - for 5 months of work, and for an additional one - for 2 months, and a total of seven days' earnings.
30. Compensation for leave extended on the basis of collective or written employment contract or on the basis of a mark in the pay book, is paid according to the vacation period established in the contract or pay book.
In other cases of extension of vacation that is not obligatory by law, the employer is obliged to pay compensation in accordance with the generally established vacation period.
When summing up vacations, extended vacations are included in the calculation in all cases in full.
31. In case of part-time work, compensation for leave not used for the position being combined is paid on a general basis. ____________________________________________________________________ Clause 31 is no longer in force in relation to employees official salary whose main place of work exceeds 60 rubles per month - Resolution of the USSR Council of Ministers of March 21, 1961 N 254. ____________________________________________________________________
32. Vacation compensation is paid at the end of the year of work, except in cases of dismissal of the employee.
33. In the event of the death of an employee, compensation for leave is paid on a general basis.
VI. Final provisions
34. When paying wages or compensation for vacation, average earnings are calculated in the manner prescribed by Decree of the People's Commissariat of the USSR dated April 2, 1930 N 142 on average earnings and payment for less than a full month (Izvestia of the People's Commissariat of the USSR, 1930, No. 13).
In this case, the calculation is made based on average earnings at the time of actual payment of wages or compensation.
35. When calculating the terms of work that give the right to proportional additional leave or compensation for leave upon dismissal, surpluses amounting to less than half a month are excluded from the calculation, and surpluses amounting to at least half a month are rounded up to a full month.
35-a. In institutions and in the management apparatus of enterprises of the socialized sector (on the boards of trusts, associations, etc., but not in plant managements), these Rules apply with the following additions:
a) During each month, 8-9 percent of the total workforce should go on vacation. In 1931, it was allowed to increase this rate to 12-15 percent from May 15 to October 1 (due to the incomplete preparedness of resorts and holiday homes for work throughout 1931). Deviations from these standards are allowed only in bodies related to the maintenance of seasonal work.
The simultaneous provision of vacations to all employees of an institution or its individual parts is allowed only in cases where this is caused by production conditions (for example, when it is inevitable to suspend work for the duration of repairs).
Example. The institution has 200 employees. Consequently, 16-18 employees must go on vacation during each month. Since vacations should be provided evenly throughout the month, it is possible, for example, to provide vacations on the 3rd, 13th and 23rd, or the 7th, 17th and 27th, etc. - so that in each of these periods 5-6 workers go on vacation, and in total 16-18 workers per month.
b) Extension of vacation due to unused days off is prohibited.
c) It is prohibited to grant leave without pay, except in cases where they are provided for by special laws (for example, laws on the assignment of young specialists to work after graduating from universities and technical schools).
d) When going on vacation, transferring unfinished work to other employees is not allowed. (The article was additionally included by Decree of the People's Commissariat of Labor of the USSR dated January 19, 1931 N 21)
36. In cases where special regulations establish special rules for granting leave for certain categories of employees (in particular, for workers in areas with particularly harmful climatic conditions), these Rules do not apply to the extent that they contradict these special regulations. The rest of these Rules apply on a general basis.
Special Rules on additional leave for particularly harmful climatic conditions are attached.
37. For employees who joined this employer before July 16, 1929, the 5-month period of work giving the right to leave from this employer in 1930 is counted from January 1, 1930.
For employees who joined between July 10, 1929 and January 1, 1930, the period is also counted from January 1, 1930, if they acquired the right to proportional leave or proportional compensation on the basis of a collective agreement in 1929. Otherwise, the period is counted from the date of entry into work.
For employees for whom the period of work giving the right to leave for 1930 is counted from January 1, 1930, the working year in further work for this employer is considered from January 1 to January 1 (i.e., coincides with the calendar year).
Example. The employee, having worked at the factory for 2 years, was on another vacation in 1928, and the vacation of 1929 was postponed to 1930. In 1930, he will receive cumulative leave, and the period of work for leave in 1930 is counted from January 1, 1930.
If voluntarily dismissed on October 1, 1930, before using the vacation, the employee will receive full compensation for the 1929 vacation and, in addition, proportional compensation for 9 months of work in 1930, counting from January 1.
38. When granting leave in enterprises and institutions in 1930 and compensation for them, these Rules do not apply to employees employed in them who, by the day these Rules entered into force, had already used their leave for 1930 or are on leave for 1930.
39. For employees who were dismissed by the employer in 1930 before the entry into force of these Rules and joined a new employer in 1930, these Rules apply as follows:
a) if the employee was dismissed with proportional compensation for part of 1930, then the Rules apply to him on a general basis;
b) if the employee was dismissed after receiving full leave or full compensation for 1930, and for 1929 also received the right to full leave or full compensation elsewhere, then the period of work for the new leave is counted from January 1, 1931;
c) if the employee was dismissed after receiving full leave or full compensation for 1930, and for 1929 did not receive the right to full leave or full compensation, then the period of work for the new leave is counted from the end of the year after joining the previous employer .
Example. The employee first started working as an employee on October 1, 1929. Since he worked only 3 months in 1929, he did not receive any leave or compensation for 1929. On April 1, 1930, he resigned with full compensation for 1930, and on June 1, 1930, he joined a new employer. The period of work for a new vacation will be counted only from October 1, 1930, when a year has passed from the date of entry into work with the previous employer.
40. Cancelled:
1) Resolution of the People's Commissariat of the USSR No. 36 of August 14, 1923 - Rules on regular and additional leaves ("Izvestia of the People's Commissariat of the USSR and the RSFSR", 1923, No. 4/28);
2) clarification of the People's Commissariat of the USSR No. 58 dated August 28, 1923 on the interpretation of Article 18 of the Rules on regular and additional leaves ("News of the People's Commissariat of the USSR and the RSFSR", 1923, No. 4/28);
3) clarification of the NKT of the USSR dated August 23, 1924 N 357/30 on the interpretation of Article 12-14 of the Rules on regular and additional leaves (Izvestia of the NKT of the USSR, 1924, N 31);
4) clarification of the NKT of the USSR dated October 24, 1924 N 446/38 on the procedure for calculating compensation for unused vacation and maintenance during vacation (Izvestia of the NKT of the USSR, 1924, N 43);
5) clarification of the People's Commissariat of the USSR dated June 16, 1928 N 132/350 on the duration of leave for persons under 18 years of age and employed in professions that give the right to additional leave due to the harmfulness of work (Izvestia of the People's Commissariat of the USSR, 1926, No. 24 -25);
6) clarification of the NKT of the USSR dated April 30, 1929 N 155 on the duration of the vacation (Izvestia of the NKT of the USSR, 1929, N 20-21).
41. In Article 1 of the resolution of the People's Commissariat of Labor of the USSR of February 21, 1928 on the working conditions of overage students of factory and mining apprenticeship schools (Izvestia of the People's Commissariat of the USSR, 1928, No. 11), the word “vacation” is excluded.
People's Commissar Labor of the USSR Uglanov
Member of the Board of the CNT of the USSR and head Organizational and Legal Department of the USSR NKT Serina
Appendix to Article 36. Rules on additional leave for particularly harmful climatic conditions
Appendix to Article 36 of the Rules on regular and additional vacations
(as amended on August 13, 1930) ____________________________________________________________________ Invalid on the grounds Resolution of the Council of People's Commissars of the USSR of October 22, 1942 N 1725. -
See previous edition ____________________________________________________________________
People's Commissar Labor of the USSR Uglanov
Member of the Board NKT of the USSR and head. Security Department Labor NKT of the USSR Zheltov
Revision of the document taking into account changes and additions prepared JSC "Kodeks"
Hello, to determine how many days compensation is due, do the following:
Calculate the length of service required to provide vacation in full months for the entire period of work in this company. Days of an incomplete month are discarded if there are fewer than 15 of them, or rounded up to a full month if there are 15 or more. Read more about length of service for vacation here. Determine the total number of days of vacation that the employee is entitled to for the entire period of work. Determine the total number of days of vacation granted for this period. Determine the amount of unused vacation (from the value in paragraph 2, subtract the value in paragraph 3) .
in accordance with Article 115 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), the duration of the annual basic paid leave of employees is 28 calendar days. According to Article 127 of the Labor Code of the Russian Federation, upon dismissal, an employee is paid monetary compensation for all unused vacations (regardless of the number of years worked for which vacations should be granted).
Currently, by virtue of Article 423 of the Labor Code of the Russian Federation, the number of vacation days for which monetary compensation must be paid is determined in the manner established by the Rules “On regular and additional vacations,” approved by the People's Commissariat of Labor of the USSR dated April 30, 2030 No. 169. In accordance with clause 28 of these Rules, if the employee has worked for the employer for at least 11 months, subject to accounting for the period of work giving the right to leave, then the employee must be paid compensation for the full period of leave in the amount of average earnings (full compensation). If the employee has worked for the employer for less than 11 months, he is paid proportional compensation. Clause 29 of these Rules establishes that proportional compensation is calculated in the amount of daily average earnings for each month of work subject to accounting during the period of work giving the right to leave. The amount of compensation for each month worked is determined by dividing the number of days of annual basic paid leave (currently 28 days) by 12 (the number of months in a year). In this case, the period of work that is less than half a month is not taken into account, and more than half a month is rounded up to a whole month.
Thus, the number of unused vacation days subject to compensation to the employee for each month worked can be determined by formula No. 1: 28/12 = 2.33 paid vacation days. If several months worked are subject to compensation, then 2.33 should be multiplied by the number of months worked. The result is the number of unused vacation days that are subject to compensation for the corresponding number of months worked. But in this case, the resulting number is not rounded to a whole number.
The procedure for calculating the average salary (including for determining the amount of monetary compensation for unused vacation) is established in Article 139 of the Labor Code of the Russian Federation. According to this article, to calculate the average salary, all types of payments provided for by the remuneration system (not of a one-time nature) applied in the relevant organization are taken into account, regardless of the sources of these payments. The specific list of payments taken into account when calculating average earnings was approved by Resolution of the Ministry of Labor of the Russian Federation dated May 17, 2000 No. 38
