Penalty for overtime

Decision of the Khabarovsk Regional Court of April 9, 2013 in case No. 21-151/2013 (key topics: standard working hours - duration of overtime - state labor inspection - labor protection - statute of limitations for administrative liability)

Decision of the Khabarovsk Regional Court of April 9, 2013 in case No. 21-151/2013

Judge of the Khabarovsk Regional Court Pilipchuk S.V., having considered the complaint of the defender of JSC FPC Chechikova O.Yu. on the decision of the judge of the Kirovsky District Court of Khabarovsk dated February 14, 2013. in the case of an administrative offense provided for in Part 1 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation, in relation to

JSC Federal Passenger Company (JSC FPK),

By resolution of the chief state labor inspector (labor safety) of the State Labor Inspectorate in the Khabarovsk Territory, FULL NAME1 N dated October 22, 2012. JSC FPC was sentenced to a fine in the amount of 30,000 rubles for committing an administrative offense under Part 1 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation (case sheets 21-27).

By the decision of the judge of the Kirovsky District Court of Khabarovsk on February 14, 2013. The official's decision was left unchanged.

Defender of JSC FPC Chechikova O.Yu. filed a complaint with the Khabarovsk Regional Court, asking the court to cancel the court's decision, pointing out its groundlessness.

The complaint was considered in the absence of the head of the OJSC - FULL NAME 2, Chechikova O.Yu., FULL NAME 1, who were duly notified of the day, place and time of consideration of the case, who did not file a motion to adjourn the case.

Having studied the arguments of the complaint, having heard the explanations of the defender of JSC FPC - Koltunova A.S., having examined the materials of the case, I find the decision of the official and the court decision subject to cancellation, and the proceedings in the case to be terminated on the following grounds.

In accordance with Article 24.1 of the Code of Administrative Offenses of the Russian Federation, the objectives of proceedings in cases of administrative offenses are a comprehensive, complete, objective and timely clarification of the circumstances of each case, its resolution in accordance with the law.

From the case materials it follows that during an unscheduled on-site inspection at OJSC FPC, non-compliance with the requirements of labor legislation was revealed, namely, in violation of Part 6 of Article 99 of the Labor Code of the Russian Federation, the duration of overtime work for an employee of OJSC FULL NAME4 in 2010 . and 2011 amounted to more than 120 hours, which served as the basis for initiating a case against JSC FPC for an administrative offense under Part 1 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation and bringing it to justice.

The judge of the first instance, when checking the legality and validity of the official's decision, pointing to the ongoing nature of the offense, also came to the conclusion that the actions of the legal entity constituted the elements of the incriminated offense. However, this conclusion was made without taking into account the following.

In accordance with paragraph 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2005. N5 “On some issues that arise for courts when applying the Code of Administrative Offenses of the Russian Federation”, the statute of limitations for bringing to justice is calculated according to the general rules for calculating time limits - from the day following the day the administrative offense was committed (after the day the offense was discovered). In the event of an administrative offense expressed in the form of inaction, the period for bringing to administrative responsibility is calculated from the day following the last day of the period provided for the fulfillment of the relevant obligation.

When considering the case, it was established that FULL NAME4 in the period from 2010 to 25.01. 2012 was an employee of the Khabarovsk Passenger Carriage Depot, a structural division of the Far Eastern branch of the Federal Passenger Company OJSC.

In 2010 Full name4 actually worked “data confiscated”, compensation was paid for hours worked in excess of normal working hours - “data confiscated”.

In 2011 Full name4 worked out “data confiscated”, compensation was paid for hours worked in excess of normal working hours - “data confiscated”.

The period of prosecution for this violation should have been calculated at the end of the annual period for 2010, since the year ends on December 31, 2010. — from January 1 to March 1, 2011; for 2011, since the year ends on December 31, 2011. — from January 01 to March 01, 2012

The official’s statement in the resolution that since the period of time established by Art. 99 of the Labor Code of the Russian Federation - per year does not establish the deadline for fulfilling the obligation by a certain date, but serves as a value for calculating the time standard, and therefore the offense incriminated by the OJSC is ongoing and unfounded.

Failure to comply with the requirements of Art. 99 of the Labor Code of the Russian Federation is expressed in involving an employee in overtime work beyond the established working hours (more than 120 hours per year).

By virtue of Art. 99 of the Labor Code of the Russian Federation, the maximum limits for the duration of overtime work cannot be exceeded: four hours for two days in a row and 120 hours per year. The employer is required to keep accurate records of overtime work for each employee.

Thus, during the annual accounting period, the employer must control and regulate the number of overtime hours worked by employees and prevent overtime.

Fulfillment of the employer's obligations under Art. 99 of the Labor Code of the Russian Federation is determined by a specific execution period - one year, which ends on December 31 of the corresponding year, therefore the offense is not continuous.

Violation by the employer of the procedure for involving an employee in overtime work, as well as registration of overtime work, does not relieve him of the obligation to pay for the time actually worked by the employee in accordance with labor legislation, to pay compensation in case of late payment, which was done by JSC FPC in pursuance of the order of the labor inspectorate .

In the actions of JSC FPC in this regard, it was possible to see a violation of labor legislation on the day of the inspection, expressed in non-payment of compensation to FULL NAME4 due to late payment of all hours worked in excess of normal working hours. However, JSC FPC was not accused of this violation.

JSC FPC was brought to administrative responsibility for violating Part 6 of Art. 99 of the Labor Code of the Russian Federation - for violation of the duration of overtime work, FULL NAME4 in 2010. and 2011, which amounted to more than 120 hours, after the expiration of the period established by Article 4.5 of the Code of Administrative Offenses of the Russian Federation, since the specified offense is not continuous, and therefore, the decision of the official and the court decision are subject to cancellation, on the basis provided for in paragraph 3. 1 Article 30.7 of the Code of Administrative Offenses of the Russian Federation.

Since the statute of limitations for bringing JSC FPC to responsibility, established by Art. 4.5 of the Code of Administrative Offenses of the Russian Federation, the issue of his guilt cannot be resolved, the proceedings in this case are subject to termination on the basis provided for in paragraph 6, part 1, article 24.5 of the Code of Administrative Offenses of the Russian Federation (expiration of the statute of limitations for bringing to administrative responsibility).

At the same time, I consider the arguments of the defense lawyer’s complaint about improper notification of the legal representative of the OJSC about the place and time of drawing up the protocol and consideration of the complaint to be unfounded. The court's conclusions in this part are motivated and based on the requirements of the Code of Administrative Offenses of the Russian Federation.

Taking into account the above, guided by clause 3, part 1, article 30.7, clause 6, part 1, article 24.5 of the Code of Administrative Offenses of the Russian Federation, -

Resolution of the chief state labor inspector (labor safety) of the State Labor Inspectorate in the Khabarovsk Territory No. dated DD.MM.YYYY and the decision of the judge of the Kirovsky District Court of Khabarovsk dated February 14, 2013. in the case of an administrative offense provided for in Part 1 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation, in relation to

OJSC "Federal Passenger Company" -

The proceedings in the case are terminated on the basis provided for in clause 6, part 1, article 24.5 of the Code of Administrative Offenses of the Russian Federation - the expiration of the statute of limitations for bringing to administrative responsibility.

Complaint by OJSC FPC defender Chechikova O.Yu. consider partially satisfied.

Judge of the Khabarovsk Regional Court S.V. Pilipchuk

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Overtime duration

Overtime work is the initiative of the employer. But often employees do not mind working beyond the norm, since payment for this work is made in a larger amount. But even with the employee’s consent, overtime work should not exceed the established limit.

Standard working time and its excess

According to the Labor Code of the Russian Federation, overtime is considered work that is performed at the request of the company’s management in excess of the established norm. That is, a greater number of hours than are established in one working day or shift. And if the employee has a summarized recording of working hours, then in excess of the norm of working hours established for a certain accounting period.

40 hours a week is the norm established by labor legislation. This length of working time is accepted as the norm for all workers. And this norm does not depend on what type of activity the company is engaged in, its organizational and legal form, the type of employment contracts and other conditions.

Duration of overtime work

The duration of work in excess of the established norm should not be more than four hours for two days in a row. And in a year this number of hours should not exceed 120. This number is indicated for each employee. The employer must strictly keep records of the time the employee worked overtime. Each hour of overtime must be reflected in the time sheet.

How many overtime hours are allowed per month?

The permissible number of hours for overtime depends on what working hours are in effect in the company and the number of working days in the week.

In order to determine the maximum possible number of hours per month an employee can stay at work, you need to calculate the number of working days in this month. For example, with a 5-day work week (40-hour week) in April 2017, there are 20 such days.

Then we will calculate possible overtime, taking into account the fact that there should not be more than 4 hours over two working days in a row. If you plan to involve an employee in overtime every day, then you can overwork no more than 2 hours every day. We multiply 20 working days by 2 hours of daily overtime, which equals 40 hours per month—the maximum possible number of overtime hours in April. But don’t forget that there is also a total limit per year. Therefore, when calculating possible overtime in the next month, all previous overtime must be taken into account.

How is overtime limited during the year?

The duration of work exceeding the established norm should not be more than 120 hours per year. Using the previous example, it turned out that an employee in April 2017 could work 40 hours a month. But he cannot work in this mode every month. Because there would be more than 400 hours of overtime per year (40 x 12). Therefore, the employer should not forget about the total limit per year.

The total duration of overtime work must not exceed the established limit.

If a manager violates this order, he may be held accountable. It is provided for in Part 1 of Art. 5.27 Code of Administrative Offenses of the Russian Federation. And if he commits such a violation again, he will be prosecuted under part two of the same article.

Payment for overtime

The employee has the right to choose how his overtime will be compensated:

additional rest time;
or increased wages.

The first hours of overtime (the first two hours) must be paid one and a half times more than regular working hours. Subsequent overtime hours are paid more - at least twice as much. Higher rates can be set by the employer and specified in:

labor or collective agreement;
local regulatory act.

From November 1, a new fine for overworking drivers will be introduced in Russia

The President signed Law No. 216-FZ dated July 26, 2019, which introduces new fines for overworking drivers, as well as the lack of tachographs.

Employees of the traffic police or Rostransnadzor will begin to fine employers if drivers do not take rest breaks during the trip or drive a car without a tachograph.

Inspectors will find a violation during a scheduled inspection or when identifying the culprit of an accident. In this case, they request documents: waybills, assignments, as well as printouts of data from the tachograph. They show how much time the driver spent on the road when he made stops.

Drivers are required to take 15-minute breaks during their shift. The first time a break will be required four hours after leaving for the flight, then every two hours (clause 19 of the Regulations, approved by order of the Ministry of Transport dated August 20, 2004 No. 15). The driver should not work beyond the norm - 8 hours per shift, 40 hours per week.

With cumulative accounting, a driver’s shift can last 10 or 12 hours if we are talking about the manager’s driver or international transportation (Article 104 of the Labor Code, paragraphs 7-11 of the Regulations, approved by Order No. 15).

New fine for overtime from November 1: for the driver - up to 2 thousand rubles, for the employer - from 20 thousand to 50 thousand rubles. (Part 3 of Article 11.23 of the Administrative Code).

The company will be punished if the drivers could not comply with the work and rest schedule due to the fault of the manager. For example, an employee was tasked with getting to a destination in too short a time.

Another amendment to the Code of Administrative Offenses introduces a fine for releasing a car on a flight without a tachograph. Carriers of goods and passengers are required to install it in their vehicles (clause 2 of the Procedure, approved by order of the Ministry of Transport dated August 21, 2013 No. 273, clause 1 of Article 20 of the Federal Law of December 10, 1995 No. 196-FZ).

From November 1, if a car does not have a tachograph, the company will be fined up to 50 thousand rubles. (Part 2 of Article 11.23 of the Administrative Code)

Earlier it became known that one entrepreneur was fined 128 million rubles for one minor mistake. This case caused a serious resonance.

It’s very easy to check whether you face fines or not. Take the test at the Small Business Accountant School. 51% of accountants were unable to answer the questions the first time. Try it too.

What risks does overtime pose for the employer?

Each organization on the basis of Part 1 of Art. 100 of the Labor Code of the Russian Federation is obliged to establish a working time schedule for employees, which determines the length of the work week and daily shift, its beginning and end, the number of shifts during the day, etc. According to Art. 91 of the Labor Code, its standard duration is 40 hours per week. If the production process must be continuous, shift work is introduced, and in accordance with Part 5 of Art. 103 Labor Code prohibits working 2 shifts in a row. The organization and the manager are responsible for overtime; fines are provided for non-compliance with the rest and work schedule.

How to get overtime work

Its duration cannot be more than 120 hours per year and 4 hours over 2 consecutive days. Those. it is possible to involve in work beyond the norm from time to time and only in specific cases, namely, when it is necessary:

finish the work that was not completed during the shift, otherwise the equipment or mechanisms will be damaged;
eliminate a malfunction that could stop the operation of the enterprise;
continue work if a replacement does not show up.

The legislation establishes situations when an employee can be forced to work overtime without his consent:

in the event of an industrial accident or natural disaster to prevent them or eliminate their consequences;
in case of disruption of the water and gas supply systems, transport and communications for public works;
in case of emergency or martial law.

Overtime work is not permitted for pregnant women and persons under 18 years of age. Disabled people and women with children under 3 years of age can be recruited only when this is not prohibited for them due to health reasons.

It is also unacceptable for them to regularly continue to work after the end of the day on verbal orders from their superiors.

The organization's personnel department must keep strict records of the time worked above the norm for each employee.

What is not considered overtime work

Performing duties within an irregular day does not constitute overtime work. In this case, the employer periodically engages an employee beyond the established shift duration; such a regime must be agreed upon when concluding an employment contract. However, this should not be systematic.

Working time standards for drivers

The peculiarities of work and rest of employees whose activities ensure the movement of vehicles are established by Chapter. 51 of the Labor Code and Order of the Ministry of Transport No. 15 of August 20, 2004. The drivers' work shift consists of:

driving a vehicle;
rest breaks on the road and at the final stop;
preparatory work before leaving the garage and after returning from a trip;
undergoing a pre- and post-trip medical examination;
parking during loading and unloading;
troubleshooting technical problems;
downtime is not the fault of the driver;
protection of the vehicle and cargo, if provided for in the contract.

According to clause 7 of Order No. 15, the driver’s working time cannot be more than 40 hours during the week. If the daily shift lasts 12 hours, then driving the car itself should take no more than 9 hours. The rest of the time is allocated to a medical examination, preparing the car for departure and final placement in the garage.

In the case where the duration of working time is more than 40 hours during the week, its summarized accounting is introduced. A shift schedule is established for drivers. You can drive a car no longer than 56 hours per week and 90 hours in 2 consecutive weeks. It is allowed to work 10 hours a day, but no more than 2 times a week. Based on clause 25 of Order No. 15, the duration of rest between shifts should be 2 times greater than the duration of work on the previous day. If the driver worked for 12 hours, he must rest for at least 24 hours. Daily rest time should not be less than 12 hours.

The law does not prohibit the establishment of irregular hours or flexible working hours for drivers of passenger cars. On weekends and holidays, employees can only be hired with their consent.

Responsibility for violating the procedure for engaging in overtime work

Sanctions for non-compliance with the rest and work regime for workers are provided for in Art. 5.27 Code of Administrative Offences. For managers and individual entrepreneurs, fines amount to up to 5 thousand, for organizations - up to 50 thousand rubles. If the culprit is convicted again, the amount of the penalty will increase to 20 thousand and 70 thousand rubles, respectively. For an official, the fine can be replaced by disqualification for 1-3 years.

Art. 11.23 of the Code of Administrative Offenses provides for liability for failure to comply with the work and rest schedule, but only for the drivers themselves. They can collect up to 3 thousand rubles from them. The employer is charged for this violation under Art. 5.27 Code of Administrative Offences.

In July 2018, a bill was introduced to the State Duma to increase the responsibility of organizations of all forms of ownership and managers. This is due to the increasing frequency of accidents in freight and passenger transport, which led to the death of people. The cause of such incidents was most often the driver’s inattention or poor health due to overwork. The bill proposes to provide in Art. 11.23 of the Code of Administrative Offences, the liability of organizations and managers for non-compliance with the work and rest regime of drivers is in the amount of 50 thousand and 10 thousand rubles, respectively.

Penalty for overtime

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Related publications

The concept of normal working hours is defined in the Labor Code of the Russian Federation. According to labor legislation, in most cases, an employee is required to work 40 working hours per week. Subject to a number of conditions, the employer has the right to involve staff in overtime work. Is there a fine for overworking hours? Is it possible to force employees to work seven days a week? Let's look into the issue.

What are working hours, working hours and rest time according to the Labor Code of the Russian Federation?

In accordance with stat. 91 of the Labor Code of the Russian Federation, working time in an organization is the time established by the labor regulations for the performance of duties by personnel. If specialists work beyond the established normal duration of employment, they talk about overtime work (stat. 99 of the Labor Code of the Russian Federation) or irregular work (stat. 97 of the Labor Code of the Russian Federation). The daily duration of a shift (working day) is also regulated by law (stat. 94 of the Labor Code of the Russian Federation). The employer's HR officer is required to keep records of actual output for each employee.

According to stat. 100 of the Labor Code of the Russian Federation, the employment regime at an enterprise must provide for the length of the working week with weekend dates. When setting rest time, the employer needs to take into account the nature of the work - irregular, shift, part-time, five- or six-day work. In some cases, the scope of the organization's activities is also taken into account.

Working seven days a week is the employer's responsibility

Regardless of the industry sector of the enterprise, every employee is entitled to rest. One of the main types of rest time is weekly days off (stat. 107 of the Labor Code of the Russian Federation). With a 5-day week, two days off are allowed weekly, with a 6-day week - one (stat. 111 of the Labor Code of the Russian Federation). Sunday is considered a general compulsory day off for everyone. The second free day can be established by the employer’s internal regulations on any day of the week. The schedule may include work on weekends, if the production process cannot be stopped due to its specifics, then rest days are distributed over different days of the week.

Each employee has the right to use their days off at their own discretion. At the same time, employers are prohibited from engaging staff to work on rest days without their consent. Exceptions are force majeure and emergency situations specified in Art. 113 of the Labor Code of the Russian Federation (prevention of disasters, accidents, introduction of martial law, etc.). Such situations cannot be permanent. If personnel are required to work on weekends to complete urgent work, the written consent of the employees themselves will be additionally required.

Penalty for overtime

From the norms of the Labor Code of the Russian Federation, we can conclude that the constant involvement of personnel in employment outside working hours, or without days off, is unacceptable. At the same time, one-time cases of such a work schedule, the presence of valid reasons and the execution of all personnel documents can justify and confirm the need for employees to be employed on weekends off.

If the organization works without days off for a long time, the employer’s liability arises for violation of labor legislation according to Stat. 5.27 Code of Administrative Offenses of the Russian Federation (part 1):

for officials of the employer - issuing a warning or collecting a fine of 1000-5000 rubles,
for entrepreneurs - a fine of 1000-5000 rubles,
for legal entities - a fine of 30,000-50,000 rubles.

Note! For repeated similar offenses, sanctions are increased by Part 2 of Art. 5.27 Code of Administrative Offenses of the Russian Federation:

for officials, the fine increases to 10,000-20,000 rubles, or disqualification is possible for up to 3 years,
fine for individual entrepreneurs – 10,000-20,000 rubles,
companies can be fined 50,000-70,000 rubles.