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LIABILITY FOR VIOLATION OF LABOR LAW.
Overtime work.



      1. Liability for Violation of Labor Law.
      A general provision on liability for violation of labor law is set forth in the Labor Code of RF (hereinafter -"the LC RF"). Article 249 of the LC RF defines that "Officials guilty of violation of labor law and labor protection regulations, default of collective and labor protection agreements, or impeding trade unions activities, bear liability (disciplinary, administrative, criminal) in the manner prescribed by law".

      Administrative liability for violation of labor and labor protection law is set forth by Art. 41 of the Administrative Offenses Code of RSFSR.

      Administrative penalty for the above offenses is set in the form of a fine equaling to 100 minimal labor remuneration rates. In Russia the state supervision and control over observance of labor and labor protection laws are exercised by the Federal Labor Inspectorate pursuant to the Statute of the Federal Labor Inspectorate approved by the Decree of the Government of RF dated 28 January 2000, No. 78 (para 3 of the Statute).

      Cases of administrative offenses (as well as application of administrative measures) are considered by state labor inspectorates being the agencies of the Federal Labor Inspectorate (subparagraph 3, para 6 of the Statute).

      Breach of occupational safety regulations or of any other labor protection standards committed by a person obliged to observe them, entails criminal liability measures application in case the breach concerned results by accident in a grave or moderately grave injury to another persons health.

      Pursuant to Art. 143 of the Criminal Code of RF a person who has committed the above offenses is fined in the amount of two hundred to five hundred minimal labor remuneration rates or in the amount of his wage or any other income for a period of two to five months, or punished with correctional labor for the term of up to two years.

      The person who has committed the same offense, which by accident has resulted in another persons death, is subject to imprisonment for a term of up to five years, and may or may not be deprived of the right to hold certain positions or to undertake certain activities for a period of up to three years.

      Criminal liability measures are applicable by the decision of common courts.

      2. Engagement of Motor Transport Drivers in Overtime Work.

      The LC RF sets forth general rules of overtime work regulation. Art. 54 of the LC RF stipulates that overtime work is, as a rule, inadmissible and specifies a list of persons who are prohibited from overtime work (part 3, Art. 54 of the LC RF). The list does not include motor transport drivers. The same article stipulates that in addition to the above persons "...other categories of employees defined by law" are prohibited from overtime work, too.

      Besides, the LC RF specifies exceptional cases, when overtime work is admissible (Art. 55 of the LC RF), and the maximum quantity of hours of overtime work (Art. 56 of the LC RF).

      Special regulation of motor transport drivers working and rest time was introduced in the Russian Federation, since the law refers motor transport to the source of increased hazard.

      Thus, the Federal Law On Traffic Safety dated 25.12.95, No. 196-FZ sets forth that "Legal entities and individual entrepreneurs whose business is connected with operation of transport facilities in the Russian Federation are obliged:
      - to organize drivers work in compliance with the requirements of traffic safety;
      - to ensure the routine of work and rest established for drivers by laws of RF" (para 1, Art. 20 of the Law).

      Regulation of working and rest time of drivers working under an employment contract on vehicles belonging to organizations registered on the territory of RF irrespective of their business and ownership forms, departmental affiliation (excluding drivers engaged in international transportation), or to entrepreneurs providing commercial transportation of cargoes and/or passengers or using vehicles for their own production needs, is effected in accordance with the Regulations On Working and Rest Time of Motor Transport Drivers approved by the Decree of the Ministry of Labor and Social Development of RF dated 25 June 1999, No. 6 (registered by the Ministry of Justice of RF 23.08.99, No. 1874).

      The above Regulations determine the rates of working time for drivers, the procedure of drivers working hours tracking, as well as fix rest time quotas for drivers and the procedure of granting rest time.

      The Regulations do not provide for an increase of the working time of drivers over and above the rates of working time established in the Regulations. Nor do they provide for overtime work with respect to drivers.

      Clause 11 of the Regulations stipulates that "An irregular working day may be set for car drivers (except taxi drivers)... .

      The decision to establish an irregular working day is taken by the employer with the employees agreement and is fixed in an employment contract or attachment thereto.

      Quantity and duration of working shifts, when an irregular working day is established, are fixed in shifts time-tables on the basis of a regular working week, and days of weekly rest are granted on general grounds".

       The Regulations determine a regular length of working time for drivers, which must not exceed 40 hours per week (clause 6 of the Regulations).

      The work performed in excess of this duration, when a working day is irregular, is not considered to be overtime.

      At the same time, the management has no right to oblige beforehand the employees with irregular working days to work constantly following a special routine of a working day (shift) of excessive duration. Hours admissible to be worked in excess of the working time do not transform an irregular working day into a prolonged one.

      The law establishes a procedure of remuneration for work carried out during irregular working days. Thus, subparagraph 3, Art. 68 of the LC RF stipulates that employees with irregular working days are granted an additional annual leave.

      The additional leave is added to an annual leave of 24 working days (paragraph 2, clause 2 of the Decree of the Supreme Soviet of RSFSR dated 19.04.91, No. 1029-I On the Procedure of Enactment of the Law of RSFSR On Enhancement of Social Guarantees for Employees"). The Decree stipulates that: "Enterprises (institutions, organizations) grant additional leaves with due regard for production and financial capacities" (clause 2 of the Decree). The law does not specifically define a quantity of an additional leave days. However, Regulations On Regular and Additional Annual Leaves approved by the People's Commissariat of Labor of the USSR dated 30 April 1930, which are still in force, stipulate that employees with irregular working days are granted an additional leave of up to 12 working days (para 8. of the Regulations).

      Apart from additional leaves, extra payments in addition to wage payments are established for car drivers with an irregular working day.

      The procedure of establishment of extra payments is defined in the Standard Regulations of Labor and Bonuses Payment to Motor Transport Drivers approved by the Decree of the State Committee of Labor of the USSR and the All-Union Central Council of Trade Unions dated 14 December 1974. These Standard Regulations are currently applicable. Subparagraph "c", para 29 of the Regulations defines the rate of extra payments to car drivers (except taxi drivers) for an irregular working day, which may vary and be fixed at different enterprises within the limits of 15 to 25% of a monthly wage.

      Hence, as regards the car drivers for whom an irregular working day is established, remuneration for extra hours of work in excess of regular working hours is fixed in the form of additional leaves and extra payments to their basic wages. Moreover, both these conditions must be necessarily observed with respect to car drivers. Otherwise, the management has no right to establish an irregular working day.

       Breach of the established procedure of remuneration for an irregular working day for car drivers is deemed to be a violation of the law in force.

Alexandra V. Plotnikova,
Associate lawyer, chief expert


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