The Primorsky Regional Court refused to collect compensation from the employee for moral damage caused to him as a result of the employer’s unlawful actions. The employee’s claims boiled down to the fact that he was not familiar with the vacation schedule (appeal ruling of the Judicial Collegium for Civil Cases of the Primorsky Regional Court dated July 17, 2018 in case No. 33-6487/2018).
The court indicated that the employer’s obligation to familiarize the employee with the vacation schedule is not provided for by labor legislation. The employer is obliged to notify the employee against signature of the start of annual paid leave. He does not specify which document he must sign. The court referred to the explanations of Rostrud, according to which such a document can be an individual notification of an upcoming vacation, an order for granting vacation (two weeks in advance), a familiarization sheet (statement) as an appendix to the vacation schedule, a vacation schedule with a special column for signature employees. The use of any of these documents for notification is legal ().
At the same time, the employee did not contact the employer with a request to familiarize himself with the vacation schedule. In this regard, the court did not find any violations in the employer’s actions.
Note that the issue of the need to familiarize employees with the vacation schedule is controversial. There is a position according to which the employer, in fulfillment of the requirement, is obliged to familiarize employees with the vacation schedule against signature, since this document is binding on the parties labor relations and is approved in compliance, and therefore is local normative act ( , ).
Does the employer have the right to issue work book to the employee on the last day before the vacation, if he resigns from it? Answer in "Encyclopedia of solutions" Internet version of the GARANT system. Get 3 days free!
In our deep conviction, the vacation schedule is not a local regulatory act, since it does not contain legal norms, that is, rules of conduct that are mandatory for an indefinite number of people and are designed for repeated use. The fact that the employer, when approving the vacation schedule, must comply with the procedure for taking into account the opinion of the trade union established for the adoption of local regulations, does not make the vacation schedule a local regulation. Therefore, according to which the employer is obliged to familiarize employees, upon signature, with the adopted local regulations directly related to their labor activity, V in this case does not apply. There is no separate provision obliging the employer to familiarize employees with the vacation schedule against signature. Accordingly, the employer’s obligation to familiarize employees with the order of granting vacations in the organization is limited to notifying a specific employee about the start time of his vacation no later than two weeks before it begins ().
This point of view also has supporters both among Rostrud specialists and among judges (,).
Magazine: Personnel Directory
Year: 2009
Author: Batura Anna Vladimirovna, Potapova Lidia Aleksandrovna
Topic: HR documents, Annual paid leave
Category: Procedure: step by step...
Summer is the time for vacations, and November and early December are the time to plan them for the next calendar year. Vacation schedule must be approved by the employer no later than two weeks before the start of the calendar year. Drawing up a vacation schedule and taking into account the opinion of the elected body of the primary trade union organization (if there is one) takes some time, so the preparation of this document must be started in advance.
Vacation schedule it is signed by the head of the personnel department, which means that it is the personnel department employees who are responsible for its preparation and execution. Let us dwell on the procedure for developing and approving a vacation schedule in more detail.
Based on Art. 123 of the Labor Code of the Russian Federation, the priority for granting paid vacations is determined annually in accordance with the vacation schedule approved by the employer, taking into account the opinion of the elected body of the primary trade union organization no later than two weeks before the start of the calendar year in the manner established by Art. 372 of the Labor Code of the Russian Federation for the adoption of local regulations.
NA No. 6‘2004 To reflect information about the time of distribution of annual paid leave of employees for the calendar year by month, the unified form No. T-7, approved is used. Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1 “On approval of unified forms of primary accounting documentation on accounting of labor and its payment."
The Instructions for the application and completion of forms of primary accounting documentation for the accounting of labor and its payment, approved by the said resolution, contain the rule that when drawing up a vacation schedule, the provisions of the current legislation, the specifics of the organization’s activities and the wishes of employees are taken into account.
The provisions of the current legislation include: general rules for the provision and calculation of the duration of vacations; features of the use of vacation by certain categories of employees (for example, employees under the age of 18 have the right to use vacation at a time convenient for them); special duration leave (for example, individual employees may be granted extended basic leave, as well as additional holidays); features of the use of vacation by individual employees (for example, an employee may not use all or part of the vacation for the previous working year).
The specifics of the employer's activities when drawing up a vacation schedule are taken into account in such a way that the use of vacation by employees does not affect the normal course of work of the organization (for example, the interchangeability of employees and work plans for the next calendar year are taken into account).
As for taking into account the wishes of employees, labor legislation does not provide for the rule that the order of vacations is determined by agreement of the parties. In accordance with Part 1 of Art. 123 of the Labor Code of the Russian Federation, the vacation schedule is approved by the employer, taking into account the opinion of the elected body of the primary trade union organization, and in fact, the vacation schedule can be drawn up and approved by the employer. However, in order to maintain a balance of interests of the parties to the employment contract, it is desirable that employees have the opportunity to participate in vacation planning. In practice, most often, all interested parties participate in drawing up vacation schedules, including employees, their immediate supervisors, heads of structural divisions, and personnel departments.
The employer organizes the preparation of the vacation schedule at his own discretion. It is advisable that the procedure, deadlines for compilation and persons responsible for preparing the schedule are determined by the employer in local regulations, for example, in the Instructions for Personnel Administration. In this case, the employer will not have to organize the work of drawing up a vacation schedule every year.
Stage 1. Obtaining information about the planned time of use of vacations
In practice, information about the time employees use vacations is received by the personnel service in various ways.
In many organizations, heads of structural divisions draw up a list of planned vacation dates for department employees. Such information for transmission to the personnel service can be drawn up, for example, in the form of a memorandum.
For some employers, HR department employees take into account the wishes of employees and the recommendations of heads of structural divisions regarding the timing of vacation use. In this case, individual documents can be drawn up in any form, for example, questionnaires, questionnaires, statements.
All preliminary information about planned vacations is analyzed by personnel service employees and adjusted taking into account the provisions of the current legislation, which were mentioned above. At the same time, in relation to each employee, the individual characteristics of the provision of vacations are taken into account: the duration of the vacation that should be provided to the employee, his current working year, the duration of vacations used for the previous working year, the reasons why the vacation was not used in the previous working year, and other features .
Stage 2. Drawing up a vacation schedule
The vacation schedule is consolidated; it reflects information about the time of distribution of annual paid vacations of employees of all structural divisions for the calendar year by month.
Such a schedule is drawn up in the form of a table consisting of ten columns. When drawing up a vacation schedule, only columns 1–6 of the table are filled in.
Stage 3. Taking into account the opinion of the elected body of the primary trade union organization
The vacation schedule is approved by the employer, taking into account the opinion of the elected body of the primary trade union organization in accordance with the procedure established in Art. 372 Labor Code of the Russian Federation.
Step 1. We send the draft vacation schedule to the elected body of the primary trade union organization
Note!
The procedure for taking into account the opinion of the elected body of the primary trade union organization is not carried out if the organization does not have a trade union
Part 1 art. 372 of the Labor Code of the Russian Federation provides that, before making a decision, the employer sends a draft document and justification for it to the elected body of the primary trade union organization representing the interests of all or the majority of employees.
It is advisable to forward the draft vacation schedule and documents that serve as the basis for its preparation to the elected body of the primary trade union organization with cover letter, which indicates: names of documents, number of sheets and number of copies of each document.
A covering letter can be issued, for example, in the form of a notification, which is signed by the head of the organization or other authorized person and registered in a special accounting form.
Step 2. We receive a reasoned opinion from the elected body of the primary trade union organization
The elected body of the primary trade union organization during the period established in Part 2 of Art. 372 of the Labor Code of the Russian Federation (no later than five working days from the date of receipt of the draft) sends a reasoned opinion on the draft vacation schedule in writing.
Option 1. A reasoned opinion reflects consent to approve the vacation schedule as presented. Option 2. The reasoned opinion does not contain agreement with the draft vacation schedule. The employer agrees with the amendments made to the draft
The draft vacation schedule is finalized based on comments and approved in the wording proposed by the elected body of the primary trade union organization.
Option 3. The reasoned opinion does not contain agreement with the draft vacation schedule. The employer does not agree with the amendments made to the draft
Note!
If the elected body of the primary trade union organization does not send a reasoned opinion in writing to the employer within the prescribed period, the employer has the right to approve the vacation schedule in the form in which the draft was prepared
Within three days after receiving a reasoned opinion, the employer must conduct additional consultations. To do this, he should notify the elected body of the primary trade union organization about the time and place of consultations.
The results of consultations (negotiations) are documented in a protocol that can record:
- new dates for granting vacations to employees, agreed upon by the parties; the fact that the parties failed to reach an agreement regarding disagreements that arose regarding the planned dates for using vacations.
The employer has the right to approve the vacation schedule in the edition that he considers appropriate.
Step 3. We issue a note about taking into account the opinion of the elected body of the primary trade union organization
After receiving a written reasoned opinion of the elected body of the primary trade union organization, a note is made on the vacation schedule that this opinion was taken into account when planning vacations.
Stage 4. Registration and approval of the vacation schedule Step 1. Fill out the details of the unified form
After drawing up the vacation schedule and taking into account the opinion of the elected body of the primary trade union organization, the following details are drawn up.
1. Name of the organization.
Indicated in the corresponding line of the unified form No. T-7 in full accordance with the name enshrined in the constituent documents, including the abbreviated name and the name of foreign language. If there is an abbreviated name, the full name is indicated first, and then, below or after it, the abbreviated name (in parentheses).
2. Organization code.
The code, which includes eight characters, is entered in the coding zone of the unified form No. T-7 according to the All-Russian Classifier of Enterprises and Organizations (OKPO).
3. Date of compilation.
It is issued digitally in the appropriate column. Date elements are written in Arabic numerals in one line in the sequence: day, month, year. The day and month are represented by two pairs of Arabic numerals separated by a dot, and the year is indicated by four digits.
In addition to the date of compilation, the corresponding column of the unified form No. T-7 indicates for which calendar year the schedule was drawn up.
Step 2. Sign the vacation schedule
The vacation schedule must be signed by the head of the HR department. The “Signature” detail contains the name of the position, personal signature and its transcript.
Step 3. Approve the vacation schedule
The vacation schedule is approved by the head of the organization or a person authorized by him. The “Approval stamp” detail contains the word APPROVED, the title of the position of the person who approved the document, a personal signature, its transcript and the date of approval.
Step 4. Register the vacation schedule
Unified form No. T-7 contains the column “Document number”. The vacation schedule is drawn up in one copy and is valid throughout the entire calendar year, therefore, in practice, this document is assigned number 1 upon registration.
Stage 5. Familiarization of employees with the vacation schedule
Part 2 Art. 22 of the Labor Code of the Russian Federation provides for the employer’s obligation to familiarize employees, against signature, with the adopted local regulations directly related to their work activities. The legislation does not provide for a form for familiarizing employees with the vacation schedule; the unified form No. T-7 does not contain a special column for issuing visas for familiarizing employees with the vacation schedule.
The employer can use different variants familiarization of employees with this document.
Option 1. Adding column 11 to the table of the unified form No. T-7
The procedure for applying unified forms of primary accounting documentation, approved. Resolution of the State Statistics Committee of Russia dated March 24, 1999 No. 20, allows the employer, if necessary, to enter additional details into the unified forms. Changes made must be formalized in the appropriate organizational and administrative document - an order or instruction of the employer.
A strict rule has been established according to which the employer needs to notify employees about adopted local regulations. Therefore, based on this norm, this also applies to the vacation schedule. If the organization’s management does not fulfill its obligations, then it is believed that employees may not comply with the requirements in these acts.
Reference! The vacation schedule is mandatory for both parties labor relations and must be issued fourteen days before the end of the calendar year.
Notifying employees about upcoming vacation schedules
To inform the employee about the upcoming vacation, labor legislation has established a two-week period before the start of the vacation (). At the same time, it was presented important condition: The notified person must sign. This will mean that the organization has fulfilled its notification obligation properly.
Let's look at the procedure:
- The vacation schedule is approved.
- A familiarization sheet with this schedule is drawn up.
- The HR department employee walks around each employee, or calls each one to his place and asks them to sign after reviewing the schedule.
- Two weeks before the start of the work holidays, HR officers additionally notify the employee about the imminent vacation and offer to familiarize themselves with the manager’s order about this.
- It is important for the accounting department not to forget to accrue vacation pay. Otherwise, the employee may refuse leave and request it at another time.
There is another option for familiarization, when an additional column is added to the vacation schedule itself for the signature of employees and for the date of familiarization. This option is also legal.
The familiarization sheet is drawn up in any form. Its structure depends on the divisions of the organization. If this is a small enterprise, then you can list all the employees in a list with continuous numbering. If we are talking about large enterprises, then it is better to divide the list of employees according to regular divisions. This will make it easier to quickly find one or another subordinate.
It is more convenient to create it in the form of a table. It indicates such columns as: employee’s full name, structural unit, position, signature, date of acquaintance.
Introductory sheets are kept by personnel officers. Their duration is not specified by law.
What to do if the employee does not agree?
If a colleague is not satisfied with the vacation date and the employee refuses to sign the acquaintance sheet, then the date can be changed.
Changing the date in this case is the right of the employer, and not the obligation (except for cases where the employee belongs to the categories of persons who are granted privileges in choosing vacation by law. The categories are listed below.).
What to do? If the employee does not agree and consensus is not reached, the schedule was drawn up correctly, the employee was notified in a timely manner, the employer has the right to send the employee on paid leave forcibly, according to the approved schedule.
Employer's liability
The HR department may forget to inform one or another employee about the upcoming vacation, thereby violating the rights of the working class guaranteed by current legislation. In this situation, such an employee may refuse the granted leave and demand that it be transferred to another period.
Important! In this situation, the employee’s will must be formalized in writing.
Who has the right to work holidays at a time convenient for them?
By general rule, The management of the enterprise itself sets the rest schedule for employees. However, in practice, in organizations with a favorable work atmosphere, the approval of this schedule is carried out taking into account the preferences of subordinates.
In case the employer does not want to accommodate the employee, the legislator has provided for categories of citizens who have a preferential right to choose a rest period.
The following categories of persons may apply for the right to choose the time of the upcoming work holidays:
- mothers with two children whose age does not exceed 12 years (Article 423 of the Labor Code of the Russian Federation);
- expectant mothers going to maternity leave(Article 260 of the Labor Code of the Russian Federation);
- husbands whose wives are already on maternity leave (Article 123 of the Labor Code of the Russian Federation);
- persons under 18 years of age (Article 267 of the Labor Code of the Russian Federation);
- employees combining different positions (Article 286 of the Labor Code of the Russian Federation).
Article 286 of the Labor Code of the Russian Federation. Vacation when working part-time
Persons working part-time are granted annual paid leave simultaneously with leave for their main job.
If an employee has not worked for six months at a part-time job, then leave is granted in advance.
If in a part-time job the duration of the employee’s annual paid leave is less than the duration of leave at the main place of work, then the employer, at the request of the employee, provides him with leave without pay for the corresponding duration.
Nothing lifts an employee's spirits like wage and vacation. In order to avoid incidents in the team, it is necessary to respect the rights and interests of each subject of labor relations. Therefore, it is important to notify the worker about the upcoming vacation within two weeks, so that the subordinate plans his vacation and returns back rested and with the desire to work hard.
As a rule, the fact that an employee familiarizes himself with the vacation schedule (hereinafter referred to as the vacation schedule) must be recorded on paper. Such paper can be:
- GO familiarization sheet;
- familiarization magazine;
- GO with an amended column about familiarization of employees with the start and end dates of vacation (form T-7);
- statements, notifications, etc.
Since this is not regulated by law, the employer himself decides in which document to record the employee’s signature (letter of Rostrud dated July 30, 2014 No. 1693-6-1).
IMPORTANT! Notification can also be made electronically by drawing up documents with enhanced qualified signatures of the employee and employer (Article 312.1 of the Labor Code of the Russian Federation, Articles 5, 6 of the Law “On Electronic Signatures” dated 04/06/2011 No. 63-FZ).
If such a document is a civil defense familiarization sheet, then it usually contains the following information, presented in table form:
- Full name of the employee;
- the name of his place of work and position;
- dates of rest days;
- acknowledgment note (date and handwritten signature).
You can download a sample sheet of acquaintance with the vacation schedule for signature at the link: Familiarization sheet with the vacation schedule (download sample).
Is it necessary to familiarize employees with the vacation schedule?
When answering the question of whether it is necessary to familiarize employees with the vacation schedule, you should refer to Art. 123 Labor Code of the Russian Federation. This norm assigns the following imperative actions to the employer:
- accept the GO no later than 14 days before December 31;
- notify the employee in advance of the start date of his rest days;
- provide some groups of workers with leave at a time suitable for them.
GO is mandatory for both parties to the employment contract. Thus, an employee cannot voluntarily go on vacation without the consent of the employer; such an action can be qualified as absenteeism.
IMPORTANT! The exception is when a donor employee donates blood and is entitled to rest days, regardless of the employer’s consent. Absence from work for this reason is not regarded as absenteeism (clause 39 of the resolution of the Plenum Supreme Court RF dated March 17, 2004 No. 2).
Deadlines for reviewing the vacation schedule
The legislation establishes the minimum period for familiarization with the vacation schedule - 2 weeks before the start of the employee’s rest days (Article 123 of the Labor Code of the Russian Federation). Upper limits this period is not provided.
Thus, the employee can be notified of the period of his vacation at any time from the moment the order is issued to approve the vacation schedule for the corresponding calendar year and 2 weeks before going on vacation (see the appeal ruling of the Samara Regional Court dated November 7, 2012 No. 33-10182 /2012).
More information about how civil defense is adopted is described in the article Order on approval of the vacation schedule - sample.
IMPORTANT! Failure by the employer to fulfill the obligation to timely notify the employee about the upcoming vacation gives the latter the opportunity to take a vacation at any other time suitable for him (Article 124 of the Labor Code of the Russian Federation).
Thus, the form of the sheet for familiarization with the vacation schedule is chosen by the employer at his own discretion. As a rule, it contains information about the employee and his rest period. The fact of familiarization with the specified period is certified by the employee’s handwritten signature.
As they say, prepare the sleigh in the summer and the cart in the winter. In personnel matters, the vacation schedule plays the role of the proverbial cart. By law, it must be approved no later than two weeks before the start of the calendar year. But when the vacation schedule is drawn up and approved, HR specialists often have a question: is the employer obliged to familiarize all employees of the company with this document against signature?
Superjob specialists will help you figure this out.
There are heated debates on this issue on professional forums for HR managers, including the Superjob.ru portal. We decided to summarize the existing opinions and understand the nuances of personnel records management. It turned out that HR managers have considerable freedom in this matter.
Killing two birds with one stone
First, let’s clarify what he says about this Labor Code RF. Article 123, which regulates the order of granting vacations, does not provide for the need to familiarize all employees with the vacation schedule upon signature. It is only mentioned that the employee must be notified of the start time of the vacation by signature no later than two weeks before it begins. It is not the same. Nevertheless, many HR specialists still carry out this procedure, explaining this for two reasons.
First, there is a hidden legal conflict: Article 22 of the Labor Code talks about the employer’s obligation to familiarize employees, upon signature, with the adopted local regulations directly related to their work activities. If we consider the vacation schedule to be such a local regulatory act, then it is still necessary to familiarize all employees with it, despite the lack of direct instructions in Article 123. To avoid possible violation labor legislation, HR managers are hedging their bets.
Secondly, familiarizing employees with the vacation schedule can actually replace preparing and filling out numerous notifications about the start time of vacation. In other words, if an employee has signed the vacation schedule (or the familiarization sheet), then it is no longer necessary to send him a notice two weeks before the start of the vacation. It is enough to prepare a vacation order on time and pay vacation pay.
After all, the Labor Code does not stipulate the form and method written notice employees, leaving this to the discretion of the personnel officer, but sets only the deadline (no later than 14 days before the start of the vacation) and the need to obtain “autographs” of employees. Thus, familiarizing yourself with the vacation schedule against signature allows you to kill two birds with one stone: to insure yourself in case of a hidden contradiction in the law and to simplify the notification of employees about the start time of the vacation.
How to notify colleagues?
So, you have decided to familiarize all employees with the vacation schedule against signature. How to organize this procedure more rationally? There are two possible ways.
Let us remind you that the vacation schedule is drawn up on the basis of a unified form personnel documents No. T-7. The first way is to add additional column No. 11 “I have read the schedule / date / signature”. It's better to do it with an order general director. Such an addition is not contrary to the law.
The second way is to create separate sheet introductions in any form. Like the vacation schedule, it can be divided into parts (by structural divisions companies). This is convenient when it comes to a large team. In addition, a separate order can assign the obligation to familiarize workers with the schedule to a specific employee or heads of company departments.
Finally, you can notify employees about the vacation schedule without any “autographs” - using Email, a company intranet portal or a good old information stand. But remember that in this case you are not relieved of the obligation to inform about the specific start date of your vacation no later than two weeks before this joyful event.
However, a vacation order can also be considered such a notice (the employee signs it after reviewing it), if it is issued no later than two weeks before the start of the vacation period. As you can see, there is nothing complicated in working with the vacation schedule, but knowing all the nuances of this procedure will allow you to always be in harmony with the law and your own colleagues. We wish you error-free paperwork and pleasant holidays!
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