Andreeva V.I.,
cand. history. in Economics, Professor of the Labor Law Department of the Russian Academy of Justice, a member of the Labor Law Committee of the NSC
The monthly allowance for the care of the child is paid from the day of the granting of leave for the care of the child until the child reaches the age of one and a half years, in the paragraphs 2-5 of the first part of Article 13 of this Federal Law ...
Note!When working under conditions of part-time work, the employee's salary is paid proportionally to the time worked or depending on the amount of work performed (Part 2, Article 93 of the LC RF)
The employer, on the basis of the employee's application and the supplementary agreement entered into with the employment contract, issues an order on part-time work (see para. annex 4).
The specificity of such work is that it must be reflected in a special way in the time sheet. The employee is on leave to care for the child and does not interrupt his exit to work, respectively, this is noted in the time sheet. At the same time, there is a need to additionally take into account working hours worked out. This can be done by issuing in the report card one more line for the same employee (see. annex 5). It is also possible for the employer to introduce special designations for part-time workers who are on parental leave, since decree of the State Statistics Committee of Russia No. 1 of January 5, 2004 This designation does not provide (see unified form No. T-12).
In accordance with the Procedure for the Application of Unified Forms of Primary Accounting Documentation, Decree of the State Statistics Committee of Russia from 24.03.99 № 20, in the unified forms of the primary accounting documentation, Goskomstat of Russia, the employer may, if necessary, make additional requisites. At the same time, the changes introduced must be formalized by the organization's organizational and administrative document - an order or an executive order (see para. annex 6). In this case, the time sheet can be maintained using the entered symbols (cf. annex 7).
It is advisable to reflect part-time work in the employee's personal card (unified form No. T-2), in spite of the fact that there is no special section in this form (see. annex 8).
By the way, say
|
A worker who is on parental leave is usually replaced by another employee. When the main employee leaves for part-time work, it becomes impossible to maintain the originally established conditions for substitution. Despite the fact that the main employee will work on part-time terms, his entry into work is the basis for the following actions: 2) the termination of the temporary transfer and the provision of work provided for in the employment contract if another employee was temporarily transferred to the position of an employee on parental leave. In the event that the work of the main employee was distributed among other employees on the conditions of combining, increasing the scope of work or performing the duties of a temporarily absent employee, entering the work of the main employee may serve as a basis for the employer to cancel the additional work according to the rules provided for part 4 of Art. 60 2 LC RF. At the same time, the main employee, working on part-time terms, will not be able to perform the entire amount of work provided for by his employment contract. Therefore, the employer has the opportunity to keep the allocation of additional work for an appropriate surcharge between other employees until the time when the main employee can work within the normal working hours. |
Annex 1
Example of an order to grant parental leave
Appendix 2
An example of a woman worker's application for part-time work
Annex 3
Example of an additional agreement to an employment contract
Annex 4
Example of an order for part-time work
Annex 5
Example of the time sheet (option 1) (fragment)
Annex 6
An example of registration of an order to change a unified form
Annex 7
Example of time sheet (option 2) (fragment)
Annex 8
Example of employee's personal card (fragment) 4th page of form No. T-2
Question:
The employee is currently on parental leave until she reaches the age of 3 years. On the basis of Art. 256 TC RF decided to work on a part-time basis - 0.5 rate of his position. Will the period of her work on leave be included in the work experience to provide an annual regular basic paid leave, because in accordance with Art. 121 of the Labor Code of the Russian Federation, the time for parental leave to work for an annual basic paid leave is not included? In the time sheet we put 4 hours / OZH (OZH - leave to care for a child up to 3 years), is it correct? What to put in the report card if the employee takes a sick leave?Answer: In accordance with Part 3 of Art. 256 of the Labor Code of the Russian Federation, upon application of a woman while she is on parental leave, she can work on a part-time basis while retaining the right to receive a state social insurance benefit. Between the employee and the employer is an additional agreement to the employment contract, which determines the length of the working day and working week, the working time regime, the amount of pay for the period of being on leave to care for the child. When working under conditions of part-time work, the employee is paid in proportion to the time worked or depending on the amount of work performed (Part 2, Article 93 of the LC RF). Then, an appropriate order on part-time work is issued. Accounting for the time worked by the employee requires the entry of information into the time sheet. There is an extraordinary situation: the employee is on leave to care for the child and at the same time works. To solve this problem, in the report card of working hours it is necessary to make another line for this employee, which will indicate the marks on the work and the number of hours worked. Since the symbols used to complete the time sheet do not provide for this situation, the order can introduce a new symbol for part-time work for workers on parental leave, for example, OZH / I, indicating the number of hours.
In accordance with the Order of the Ministry of Health and Social Development of the Russian Federation of June 29, 2011 N 624n (in edition 2013) with temporary disability of persons on parental leave until they reach the age of 3 years, working part-time or at home, a leaflet of incapacity for work is issued on general grounds. In the time sheet, the symbol used in the organization, for example, OC / B, should be used.
In the work experience, which gives the right to an annual basic paid vacation, the time for parental leave is not included until it reaches the legal age (art. 121 TC RF). However, the employee, while on maternity leave, works part-time. According to the first part of Article 121 of the Labor Code, the time of actual work is included in the length of service that entitles to an annual basic paid vacation.
On the basis of the Labor Code, any employee after the appearance of the child has the right to take leave to care for him and leave his job for three years.
But it often happens that while still on vacation, moms want to return to work. We'll figure out what nuances are associated with this decision and what rights there are for a young working mother. We will consider possible situations when the employee is on vacation and at the same time working part-time. How it is possible to go to work in a decree, read in our material.
Dear readers! Our articles tell us about typical ways of solving legal issues, but each case has a unique character.
If you want to know, how to solve your problem - contact the online consultant form on the right! It's fast and free!
In contact with
Few people know, but you can combine work and maternity (this is indicated in article 255 of the Labor Code), however, the working day is reduced.
Female worker in this situation can count not only on the salary (in accordance with the time worked), but also on social benefits(it is also preserved).
Reference! Returning to the service before the due date, the young parents receive additional income and retain their qualifications.
Sometimes the employer offers a different position and responsibilities to the employee who decided to return to his place during the childcare leave.
This means that it can work a shortened day (for example, half a day) or a shortened week (several days out of five). In addition, a remote work schedule is possible - if the manager does not mind.
But you should know that if the employee decides to return to full employment, she does not rely on the child.
What should a woman on leave for child care do when she decided to return to her position?
Up to what age is it allowed to work under the reduced regime?
Not being on maternity leave, but having a child under the age of 14, any woman may be asked to transfer instead of the usual workday for reduced or for work at home.
Attention! For children with disabilities, this period is extended until their coming of age. Of course, wages in this case will also be reduced - in proportion to the amount of work done or work hours.
To work and receive child allowance and compensation, the child should not be more than three years old.
A young mother can simultaneously be on maternity leave and go to work not only at the place of her primary employment. She can also get a part-time job from another employer, this is not prohibited by the Labor Code of the Russian Federation.
At the same time, the payment of child benefits is preserved. She does not even have to notify her main employer about additional work.
However, one must know that on leave to care for a child it is impossible to conclude an urgent labor relationship. But if desired, a woman can interrupt maternity leave, work a certain period, and then go on vacation again.
What if the leader refuses you?
At the time of leaving the employee on maternity leave, he retains his position, and at any time when the employee decides to return to his job ahead of time (in advance notifying the head), he has the right to do so. The employer must provide him with his former job and has no right to refuse.
If the young mother still received a refusal to her application, she is entitled to ask for explanation of the refusal in writing or even write a complaint to the name of the head of the organization. If the case does not succeed, you can complain higher - to the Labor Commission, the prosecutor's office, the court.
A manager who has violated the law may receive a warning or even a fine.
gives the right to working mothers, if their children are less than one and a half years old, to use breaks for feeding - once every three hours and lasting at least half an hour (per child). If there are more than one children, the feeding can take at least an hour. All such breaks are counted as working hours and are accordingly paid.
However, not all mothers work near home, therefore it may not always be convenient to be absent from work for such breaks. In this case, they can ask to postpone breaks through the application: for example, put them at the beginning of the work shift and just come a little later or, conversely, add to the end of the working day, thus reducing your shift.
Some mothers prefer to take breaks for lunch (before or after), thus having time to go home to feed and have lunch.
Today, not only mother, but also the baby's daddy and even immediate relatives, for example, a grandmother or grandfather, can leave for maternity. This right is fixed in article 256 of the LC RF.
A guardian or a relative may receive payments for a child until the child is three years old. The amount of the allowance is calculated according to the same scheme as for mothers - it is forty percent of the average salary (but the allowance can not be less than the established minimum).
It is quite easy to make such a vacation.
IMPORTANT! If the relative does not work or retires, he can take care of the child with all payments only if the parents of the child can not do it (for example, they died, stay in places of detention, etc.).
Conclusion
Today, the birth of a child should not be a hindrance to the continuation of work activities, and legislation provides an opportunity to combine childcare and work. Working part-time working mom can receive both salary and payment of child benefits, and she has the right to breaks for breastfeeding.
The labor legislation provides for such modes of work as reduced and incomplete working hours. It should be borne in mind that a shorter working time is a guarantee for certain categories of workers, depending on the nature of the work they perform, and is established by regulations. And part-time work is considered to be less than normal working time, established by agreement of the parties to the employment contract. As you know, part-time work can be provided to employees for various reasons, but in this article we will analyze the situation when a young mother, while on parental leave, decided to go to work.
Provision of childcare allowance
By virtue of paragraph 1 of Art. 9 of Law No. 165-FZ, the relations on compulsory social insurance arise with the insured (employer) for all types of compulsory social insurance from the moment of conclusion of the employment contract with the employee; for insured persons - for all types of compulsory social insurance from the moment of concluding an employment contract with the employer. According to paragraphs 6, paragraph 2 of Art. 12 of Law N 165-FZ, policyholders are obliged to pay certain types of insurance coverage to insured persons in the event of insured events in accordance with federal laws on specific types of compulsory social insurance. Clause 1 of Art. 22 of Law No. 165-FZ stipulates that the basis for the appointment and payment of insurance coverage to the insured person is the occurrence of a documented insurance event.
One of the types of insurance compensation is a monthly allowance for the care of a child (Article 7, subparagraph 8, clause 2 of Article 8 of Law No. 165-FZ).
As a general rule, leave to take care of a child is provided until he reaches the age of three years (part 1, article 256 of the Labor Code of the Russian Federation). For the period of leave to care for the child, the employee retains a place of work (position) (Part 4, Article 256). The monthly childcare allowance is paid to the insured persons (mother, father, other relatives, guardians) who actually take care of the child and are on parental leave from the day of granting parental leave until the child reaches the age of one and a half years 1 Article 11.1 of the Law N 255-FZ, Part 1 of Article 14 of Law N 81-FZ). A woman who is on parental leave until she reaches the age of one and a half years receives a benefit of 40% of the average earnings for which compulsory social insurance is paid for temporary incapacity for work and in connection with maternity, but not less than the minimum amount benefits established by Art. 15 of the Law N 81-FZ.
For your information. Starting from 01/01/2013, the minimum monthly allowance for childcare is set as follows:
- 2 453.93 rubles. - caring for the first child;
- 4,907.85 rubles. - caring for the second child and subsequent children.
Features of establishing part-time work
The right to a monthly childcare allowance is also retained if the person on an appropriate leave is part-time or at home, and in the event of continuing education (Article 13 of Law No. 81-FZ). Also part 3 of Art. 256 of the Labor Code of the Russian Federation established that while a woman is on parental leave, she can work under conditions of underemployment. That is, the legislation of the Russian Federation guarantees the preservation of the right to receive a monthly allowance for the care of a child for an insured person who has issued a specified leave and works part-time at the place of work. This is stated in the Letter of the Russian Federal Social Service of August 10, 2010 No. 02-02-01 / 08-4003.
Recall that clause 8 of Regulation No. 111 / 8-51 provides the following modes of work, established when working with part-time work:
- reduction in the duration of daily work (shift) for a certain number of working hours on all days of the working week;
- reduction in the number of working days per week, while maintaining the normal duration of daily work (shift);
- Reduction in the duration of daily work (shift) for a certain number of working hours while reducing the number of working days per week.
These modes of work may include dividing the duration of daily work into parts, for example, in the morning and in the evening.
When setting working hours with part-time work, the working day (shift) usually should not be less than 4 hours, and the working week should be less than 20-24 hours, respectively, at a five- and six-day week.
Incomplete working hours can be set for any period. Changes in the terms of the employment contract, including transfer to another job, are permitted only by agreement of the parties. The agreement on changing the terms of the employment contract determined by the parties is concluded in writing (Article 72 of the LC RF).
note!! While on leave to care for a child, a woman can work simultaneously as a civil law contract, either part-time or at home. At the same time, it retains the right to receive a monthly allowance for the care of the child, since remuneration under a civil law contract by wages is not due to Part 1 of Art. 129 of the LC RF.
In practice, a question often arises: what kind of working time can be established? Legislation does not resolve this issue. The parties to the employment contract must independently determine the length of the working day (working week) acceptable for them. FSS in Letter No. 02-03-13 / 08-2498 of 02/22/2010 recommends that persons working part-time work should be guided by the norms established by the Labor Code of the Russian Federation as well as by Regulation No. 111 / 8-51 on the issue of working hours.
To answer this question, let's turn to the court practice. The FAS Resolution No. F09-9217 / 08-C2 of 10.12.2008 states that even if every working day of an employee is less than 12 minutes (39 hours of work per week), the regime of her work corresponds to the signs of part-time work. In addition, clause 8 of Regulation No. 111 / 8-51 is of a recommendatory nature, not an imperative one. Accordingly, in this case, the employee retains the right to receive a monthly allowance for the care of the child. A similar conclusion is presented in the Decree of the Federal Antimonopoly Service of the Russian Federation from 08.07.2009 N F09-4211 / 09-C2.
In the decision of FAS DF of 09/19/2012 N F03-3632 / 2012, when considering the case, the court stated: if the employee is assigned part-time work with a working week of 35 hours, a working day of 7 hours, while partially working 30 hours a week, partially at 7.2 hours per day (which corresponds to a 36-hour work week), this mode of operation corresponds to the signs of part-time work (each working day is reduced by 40 minutes) and a shorter working week (36 hours instead of 40 hours), due to than at it the right to reception monthly
FAS NWO in Resolution No. A21-620 / 2012 of 23.11.2012, having analyzed the circumstances of the dispute, indicated that the employee had the right to receive a monthly allowance for the care of the child, since the conditions stipulated by the current legislation for obtaining such benefits were met:
- the fact of having an employment relationship is confirmed;
- Partly paid leave to take care of a child up to a year and a half is granted (according to the order);
- in connection with the employment for the period of the specified leave, the order establishes the regime of part-time work: 8 hours from Monday to Thursday (from 8.00 to 17.00), 7 hours on Friday (from 8.00 to 16.00), that is 39 hours per week.
Proceeding from this, the employee's work schedule meets the signs of a reduced working week (39 hours instead of 40 hours) with payment in proportion to the worked time.
At the same time, the court rejected the FSS's arguments about the abuse of the employee's right and the creation of an artificial situation in order to receive benefits, since the loss of earnings due to the reduction of working time is of minor significance compared to the amount of the benefit received. In addition, it was noted that the current legislation does not provide for the restriction of the payment of childcare allowance or the possibility of recalculating the FSS of the amount of the specified benefit, depending on the reduction in the length of working hours.
There is also much debate about part-time work: the FSS, in order not to pay benefits, argues that the issuance of wages in full-time work is unreasonable, as Art. 93 of the RF TC has a proportional payment.
For example, in the FAS VOU Resolution No. A29-10887 / 2009 of 02.09.2010, the judges established that, in accordance with the order and the supplementary agreement to the employment contract, an employee who is on parental leave for a child under one and a half years is entitled to part-time work working hours from 7.2 to 6.2 hours). Herewith, the accrual and the issuance of wages to her were made for a full working day. The organization, in turn, did not provide evidence that the employee was working part-time and that the payment of her childcare benefit before reaching the age of one and a half years from the FSS funds was made justifiably. Accordingly, the court denied the organization the satisfaction of the requirement for acceptance of the allowance.
However, FAS RVO, in its Resolution No. F03-3632 / 2012 of 09/09/2012, when considering the issue of full-time wage with part-time work indicated that, by virtue of Art. 132, 135 of the Labor Code of the Russian Federation, the determination of the amount of wages to the employee refers to the exclusive powers of the employer, while the right to receive a childcare allowance for up to one and a half years is a federal guarantee in the field of social security. Thus, the argument was rejected that the employee did not have the right to reimburse the funds from the FSS, since this, in turn, is a restorative measure aimed at compensating the lost earnings of the employee in connection with the need to care for a child up to one and a half years. And the earnings of the worker was not lost.
In FAS Resolution No. F09-3400 / 10-C2 of 26.05.2010, the court did not take into consideration the FSS's arguments that from the moment of granting parental leave leave, the conditions of work of individuals and payment for their labor have not changed, that is, loss of earnings did not happen. However, as it turned out during the trial, the employees were found to have incomplete working hours (based on the documents submitted - orders, labor contracts, time sheets), and wages were paid in proportion to the worked time.
We would also like to draw your attention to the FAS Resolution No. 03/03/2012 NF09-1216 / 12, which addresses the following situation. On the basis of the order, the employee, on leave for child care, began to work on a part-time basis. According to an additional agreement to the employment contract, she was allowed to perform work duties on the conditions of work at home with the establishment of a work regime, while retaining the right to receive childcare allowance until he reached the age of one and a half years. Note that when working at home, part-time work is not established. At the same time, the court concluded that the woman who performed the work at home continued to actually take care of her child, and therefore had the right to receive benefits from the FSS. The court rejected the FSS's argument that work at home should be connected only with material production. After all, labor legislation:
- does not contain restrictions on the circle of persons who can work at home;
- implies the freedom of the parties to establish a home-based form of organization of the labor process.
In addition, it was noted that the possibility of working at home is determined by the employer himself, taking into account the economic feasibility and the real possibility of doing work at home. Based on this, the courts concluded that the organization's lack of good faith and the direction of its actions to obtain unreasonable benefit by the controlling body have not been proven.
Feeding breaks
According to Art. 258 of the Labor Code of the Russian Federation, a working woman who has children under the age of one and a half years, upon her application, is provided, in addition to the break for rest and food, additional breaks for feeding the child at least every three hours for at least 30 minutes each. In this case, breaks for feeding are given to women regardless of whether they are breastfeeding or not. These breaks are included in working hours and are payable in the amount of average earnings.
According to the woman, breaks for feeding the child (children) join the break for rest and nutrition or are summed up both at the beginning and at the end of the working day (working shift) with the corresponding reduction.
That is, the employer, when establishing an employee with a child under the age of one and a half years, part time, must take into account that she has breaks for feeding the child one hour a day. In this case, the amount of working time, including the time of breaks for feeding the child, which is less than 40 hours a week under normal operating conditions, will be considered part time.
Reduced pre-holiday day
Does a person who works on a part-time basis and cares for a child before he reaches a year and a half have the right to him?
The duration of the working day immediately preceding the non-working holiday is reduced by one hour (part 1 of Article 95 of the LC RF). This rule applies to all employees regardless of the length of their working hours, including those who work part-time. This is due to the fact that work under conditions of underemployment does not entail any restrictions on labor rights (Part 3, Article 93 of the LC RF).
At the same time, in continuously operating organizations and in certain types of work where it is not possible to reduce the duration of work (shift) on a holiday day, processing is compensated by providing the employee with additional leisure time or, with the consent of the employee, payment according to the norms established for overtime work (p. 2 items 95, 153 of the Labor Code of the Russian Federation). It should be borne in mind that a worker can choose - increased payment or rest on another day.
Annual paid holidays and study leave
The length of work entitling them to an annual basic paid vacation does not include the time for parental leave to reach the statutory age (Part 2, Article 121 of the Labor Code of the Russian Federation). However, if during the leave for childcare the employee works part-time or at home, this rule does not apply to him, since the period of work on the part-time schedule is included in the length of service that gives the right to provide the next paid leave with preservation place of work (position) and average earnings (article 114, part 1, 4 article 122, part 4, article 124 of the LC RF).
However, paid leave can be granted only after a childcare leave, because at the same time the employee can not be on two holidays. And in calculating the average earnings taken into account the salary, accrued for the time worked, including payment for part-time work.
According to Part 2 of Art. 256 of the RF Labor Code, parental leave can be used in whole or in parts by the father of the child, grandmother, grandfather, other relative or guardian who actually cares for the child. That is, a woman who is on parental leave until she reaches the age of three years can, at any time convenient for her, leave the specified leave ahead of schedule, and in the future also at any time to resume leave after the break due to the employment, and the employer can not refuse to satisfy her statements.
Use this right can, in particular, if you need to provide the employee an educational leave. In other words, to take advantage of the right to study leave, she must interrupt the leave to take care of the child. To do this, you should write two applications with one date: the early exit to work and the provision of study leave. In this case, the calculation of the childcare allowance is interrupted and the student leaves for which the average earnings are calculated and paid. At the same time, during the period of the employee's employment, the child can be taken care of by another person who is actually caring for the child (father, grandmother, grandfather, other relative or guardian) during this period and having issued appropriate leave.
After graduation, the woman can again use the right to leave to take care of the child under art. 256 TC RF.
Allowance for temporary incapacity for work
A woman who works part time, in case of illness, has the right to temporary disability allowance, since she is an insured person (clause 1, part 1 and part 2, article 2 of Law No. 255-FZ, part 3, article 93, 183 of the LC RF). In case of temporary incapacity for work for persons on parental leave until they reach the age of three years, working part-time or at home, the disability certificate is issued on general grounds (clause 23 of Order No. 624n). Accordingly, the employer is obliged to pay both the temporary disability allowance and the childcare allowance. This norm is also maintained in the case of a child's illness, which is actually being treated.
The monthly childcare allowance is not paid only if the receiving mother is unable to care for the child due to her illness. In this case, another family member who actually cares for the child during this period can exercise the right to the said benefit. In this case, the right to appoint and pay benefits can pass from one member of the family to another, depending on who of them actually cares for the child. Proceeding from the above, the mother of the child must interrupt the leave to care for him, since she is assigned a temporary disability allowance (paragraph 42 of Order N 1012n). To do this, she must submit applications for the termination of the payment of benefits and that she interrupts the leave to take care of the child. If, for health reasons or for other reasons, the mother of the child can not submit the said application in person, it can be taken from another member of the family when presenting to them a document certifying the identity and relationship.
We fill in the time sheet
The peculiarity of accounting in the case under consideration is that in the time sheet it is necessary to combine the marks, since the employee is simultaneously on leave for child care (that is, freed from the performance of labor duties) and performs her labor function. So, if part-time work is established on the employee's initiative, the code letter "I" or digital "01" is placed in the table with the code indicating the duration of time worked per working day in accordance with the terms of the supplementary agreement to the employment contract.
If the employee is working in the part-time work week, additional non-working days are indicated in the report card as holidays.
At the same time throughout the leave to care for the child is put the letter code "P" (form 0504421).
To enter two marks in the institution's timekeeping form, you can enter an additional line.
In addition, we want to recall that if there is no standard letter code for designating a certain type of working time, then a new designation can be entered by the order of the manager. This possibility is established by Appendix 5 to Order No. 173n. This feature is used, for example, to reflect the breaks for feeding. Despite the fact that the breaks for feeding the child are equal to the working time, they are calculated in the amount of the average earnings and therefore in the time sheet must be reflected separately.