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We all love to listen to music loudly, have a party, or drill a couple of holes in the walls with our favorite hammer drill. But do not forget about the comfort of your neighbors. They will not always be happy to appreciate the power of your acoustics or endure the whine of a drill until 6 in the morning. So, from what time and until how much you can not make noise? The law takes care of the peace of the citizens of our country and provides for a "period of silence", which begins at 23.00 ...

After considering the issue, we came to the following conclusion:
The current legislation does not oblige the employer to make additional payments to employees for working on the evening shift.

Rationale for the conclusion:
Article 149 of the Labor Code of the Russian Federation provides that when performing work in conditions that deviate from normal (when performing work of various qualifications, combining professions (positions), overtime, working at night, weekends and non-working holidays and when performing work in other conditions that deviate from normal), the employee receives the appropriate payments provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract. The amounts of payments established by the collective agreement, agreements, local regulations, labor contract cannot be lower than those established by labor legislation and other regulatory legal acts containing labor law norms.
At the same time, the Labor Code of the Russian Federation does not mention such a thing as an evening shift, and does not establish the obligation of an employer to pay an increased amount for work on an evening shift.
Earlier, an additional payment for work in the evening shift in the amount of 20% was provided for in clause 9 of the resolution of the Central Committee of the CPSU, the Council of Ministers of the USSR and the All-Union Central Council of Trade Unions dated February 12, 1987 N 194 (hereinafter - Resolution N 194). The procedure for her appointment was determined by the Explanation “On the procedure for applying additional payments and granting additional holidays for work in the evening and night shifts, provided for by the Decree of the Central Committee of the CPSU, the Council of Ministers of the USSR and the All-Union Central Council of Trade Unions of February 12, 1987 N 194”, approved by the Decree of the USSR State Committee for Labor and the Secretariat of the All-Union Central Council of Trade Unions of 05/07/1987 N 294/14-38.
However, the aforementioned resolution was not actually subject to application from the date of entry into force of the Decree of the Government of the Russian Federation of July 22, 2008 N 554, which established the minimum wage increase for night work (see also the definition Supreme Court Russian Federation of November 12, 2008 N GKPI08-2113, letter of the Ministry of Health and Social Development of Russia and Rostrud of October 28, 2009 N 3201-6-1), and officially recognized as not valid on the territory of the Russian Federation by Decree of the Government of the Russian Federation of April 28, 2011 N 332.
Therefore, the pay for working in evening time should only be done if it is provided for by local normative act, a collective agreement, an agreement or an employment contract with an employee (Articles 8 and 9 of the Labor Code of the Russian Federation). In these cases, the grounds for and procedure for applying additional payment for work in the evening are determined by the provisions of these local regulations themselves (collective agreement, agreement, employment contract).

Prepared answer:
Legal Consulting Service Expert GARANT
Chernova Anastasia

Response quality control:
Reviewer of the Legal Consulting Service GARANT
Komarova Victoria

The material was prepared on the basis of an individual written consultation provided as part of the Legal Consulting service.

Additional payment for work in the evening and night shifts

The Labor Code of the Russian Federation does not contain a definition of the concepts "evening time" and "eveningshift” and does not regulate the obligation of the employer to establish increased wagesin evening time.

Earlier, an additional payment for work in the evening shift was provided for by the Decree of the Central Committee of the CPSU, the Council of Ministers of the USSR, the All-Union Central Council of Trade Unions dated February 12, 1987 No. 194 “On the transfer of associations, enterprises and organizations of industry and other industries National economy for multi-shift operation in order to increase production efficiency. This Decree has become invalid in accordance with the Decree of the Government of the Russian Federation dated April 28, 2011 No. 332.

In accordance with Art. 96 of the Labor Code of the Russian Federation, night time is considered from 22 pm to 6 am. In order to reduce the adverse factors of working at night, there is a rule according to which the duration of work (shift) at night is reduced by one hour without further working off. In accordance with the legislation of the Russian Federation, a shift is considered to be a night shift in which at least half of the time of work falls on the night. The duration of work at night can be equated with work during the day only in cases where this is caused by the conditions of production (for example, in shift work with a 6-day working week; in continuous production, etc.).

The hours of work at night are not reduced for employees for whom a reduced working time limit has been established. In addition to exceptions to this rule in Part 3 of Art. 96 of the Labor Code of the Russian Federation provides that the duration of work at night is not reduced even if the employee is hired specifically for work at night. The Labor Code of the Russian Federation contains only an approximate list of workers who cannot be allowed to work at night.

Work at night is paid at an increased rate established by the collective agreement (remuneration regulations) of the organization, but not lower than provided by law.

Article 154 of the Labor Code of the Russian Federation establishes that each hour of work at night is paid at an increased rate compared to work under normal conditions, but not lower than the rates established by laws and other regulatory legal acts. This means that for every hour worked at night, the employee is entitled to an additional payment.

The minimum wage increase for night work is established by Decree of the Government of the Russian Federation of July 22, 2008 No. 554 “On the minimum wage increase for night work”. This value is 20% of the hourly tariff rate (salary per hour) for each hour of work at night. And the specific size of the increase is established by the employer, taking into account the opinion of the representative body of employees, a collective or labor agreement.

The duration of work at night is equalized with the duration of work during the day in cases where this is necessary due to working conditions, as well as in shift work with a six-day working week with one day off. The list of such works may be determined by a collective agreement, a local normative act.

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Let's look at an example. The organization, in accordance with the terms of the collective agreement, makes additional payments to employees for working on the night shift. The collective agreement establishes a 20% surcharge for night shift work, which lasts 10 hours: from 22 to 8 hours. The official salary of an employee is 12,600 rubles. per month. The shift schedule, which is an annex to the collective agreement, establishes that this employee works four days in the night shift every odd week while maintaining a 40-hour working week by providing three days off. In accordance with the time sheet, this employee worked in March 2011 eight night shifts.

According to Art. 154 of the Labor Code of the Russian Federation, each hour of work at night is paid at an increased rate compared to work under normal conditions, but not lower than the rates established by laws and other regulatory legal acts.

The specific size of the increase is established by the employer, taking into account the opinion of the representative body of employees, the collective agreement, the labor contract. The additional payment to an employee for working at night, calculated on the basis of the terms of the collective agreement, is 1200 rubles. (12,600 rubles 168 hours x 20% x 10 hours x 8 days, where 168 hours is the number of working hours in October). Consequently, wage employee for March will be 13,800 rubles. (12600 rubles + 1200 rubles).

As for the amounts of additional payment for work at night, for the purposes of taxation of profits, they relate to labor costs only to the extent that they are made in accordance with the law. Russian Federation in accordance with paragraph 3 of Art. 255 of the Tax Code of the Russian Federation. Article 96 of the Labor Code of the Russian Federation establishes that the time from 10 p.m. to 6 a.m. is recognized as night time. Consequently, the amount of additional payment for night work in accordance with this norm should be 960 rubles in the situation under consideration. (12600 rubles 168 hours x x 20% x 8 hours x 8 days). In this amount, the additional payment to the employee for working at night is a reasonable (economically justified) expense and reduces the income received in tax accounting in accordance with the norms of paragraph 1 of Art. 252, paras. 2 p. 2 art. 253 and paragraph 3 of Art. 255 of the Tax Code of the Russian Federation.

Additional payment to the employee for work from 6 to 8 hours in the amount of 240 rubles. (1200 rubles - 960 rubles) is not recognized as an economically justified expense and is not taken into account for income tax purposes.

If the organization uses a summarized accounting of working time for certain categories of employees (for example, drivers, security guards), where part of the working day (less than half) falls at night and the work is not shift and not six days, then night hours should be considered separately. And that's why.

As you know, the Labor Code of the Russian Federation requires payment for each hour of work at night in an increased amount compared to work under normal conditions in the amount of at least 20% of the hourly wage rate (hourly part of the salary). However, a direct indication that it is necessary to establish separately surcharges for night work and separately - the tariff rate, in Labor Code RF is not. Therefore, when setting the hourly tariff rate, it can be calculated taking into account the additional payment for night work. At the same time, this option of setting an hourly wage rate is not very convenient, especially if the employee is hired to work not only at night. In addition, in the case of an inspection by the labor inspectorate, each time it will be necessary to confirm the fact of increased pay for work at night by calculation. Therefore, it is more convenient to set a separate tariff rate and a separate surcharge for night work.

In practice, there are cases when the employer includes the extra payment for night work in the monthly bonus. The consequences of such actions are such that the inclusion of an additional payment for night time in the monthly premium will lead to a distortion of the meaning of Part 1 of Art. 129 of the Labor Code of the Russian Federation, which clearly distinguishes compensation payments, one of the varieties of which is an additional payment for working at night, from bonus payments that are part of incentive payments.

Article 149 of the Labor Code of the Russian Federation, which establishes the features of wages at night, is intended to compensate the employee for the performance of work in conditions that deviate from normal working conditions. Labor activity at night requires certain additional efforts from the employee, since biologically night time is a time of rest. Accordingly, the increased payment for work at such a time is not associated by the legislator with the achievement of any production results or the solution of the tasks set. The very fact of performing work at night gives the employee the right to receive an additional payment in an increased amount and is not related to the criteria that determine the payment of bonuses.

As for the surcharge for night time, the analysis of Art. 154 of the Labor Code of the Russian Federation allows us to draw the following conclusion: in an increased amount, it is not the possibility of engaging in work at night that is paid, but directly each actually worked hour.

Therefore, the employer must determine how much he raises pay for exactly one night hour. The possibility of paying for work at night in other ways is not provided for by labor legislation. This means that the employer is not entitled to set such a fixed amount for night work, which can be paid, for example, for professional excellence, classiness, work with information constituting a state secret, etc. For work at night, it is necessary to establish a specific amount of payment per hour of work, which is multiplied by the number of hours worked.

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A different form and procedure for paying for work at night will be a violation of labor legislation, namely, Art. 154 of the Labor Code of the Russian Federation and may entail administrative liability in accordance with Art. 5.27 of the Code of Administrative Offenses of the Russian Federation.

Thus, it is impossible to consider wages in an increased amount for night work as part of the bonus. It should be remembered that pregnant women and employees under 18 years of age, women with children under the age of three, disabled people, employees with disabled children, employees caring for sick family members in accordance with medical certificate, mothers and fathers (guardians) raising children under the age of five without a spouse. According to Art. 96 of the Labor Code of the Russian Federation, such workers can be involved in night work only with their written consent, and also on condition that such work is not prohibited to them for medical reasons.

Also on this topic:

We are introducing multi-shift operation at the enterprise. tell me in what cases payment is required for work in the evening

"Personnel service and personnel management of the enterprise", 2007, N 4

Question: We are introducing a multi-shift operation at the enterprise. Tell me in what cases you need to pay for work in the evening.

P.Yu.Proshkina, St. Petersburg

Answer: The Labor Code of the Russian Federation does not determine what time of work should be considered evening, respectively, there are no direct indications of the obligation of the employer to pay for evening time.

However, in Art. 149 of the Labor Code of the Russian Federation, an approximate list of works performed in conditions that deviate from normal is given (performance of work of various qualifications, combination of professions (positions), overtime work, work at night, weekends and non-working holidays and performance of work in other conditions that deviate from normal ).

According to the interpretation given by the Presidium of the Supreme Court of the Russian Federation in Ruling No. 48pv-03 of November 19, 2003, working conditions on evening shifts are the same deviation from normal working conditions as working conditions on a night shift. Therefore, working the evening shift requires higher pay.

How much should be paid in this case? As follows from Art. 149 of the Labor Code of the Russian Federation, such payments must be made in the amount established by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract.

So legal act is the Decree of the Central Committee of the CPSU, the Council of Ministers of the USSR and the All-Union Central Council of Trade Unions of February 12, 1987 N 194 "On the transition of associations, enterprises and organizations of industry and other sectors of the national economy to a multi-shift operation in order to increase production efficiency." According to paragraph 9 of the said Decree, additional payments for work on the evening shift should be 20 percent of the hourly tariff rate (official salary) for each hour of work.

This norm, despite the fact that it was adopted long before the entry into force of the Labor Code of the Russian Federation, is valid, which confirms the already mentioned Ruling of the Presidium of the Supreme Court of the Russian Federation of November 19, 2003 N 48pv-03.

Note that from the content of this Decree it follows that the increased pay is not due to all employees who work in the evening hours, but only to those who work in multi-shift mode (two or three-shift work modes). Employees who have a different working regime are not entitled to increased pay, even if they performed work in the evening.

A 20 percent surcharge for evening work for multi-shift workers is a guaranteed legal minimum. A collective agreement, agreement, local normative act, labor contract may establish a higher amount of payment.

When determining the time limits for evening time, one should be guided by the Explanation of the USSR State Committee for Labor, the Secretariat of the All-Union Central Council of Trade Unions of May 7, 1987 N 14 / 14-38 “On the procedure for applying additional payments and providing additional holidays for work in the evening and night shifts, provided for by the Decree of the Central Committee of the CPSU, the Council of Ministers USSR and the All-Union Central Council of Trade Unions dated February 12, 1987 N 194 "<1>. According to this Clarification, the shift immediately preceding the night shift is considered evening shift. The Labor Code of the Russian Federation recognizes night time from 10 p.m. to 6 a.m. (Article 96). The beginning of the evening shift depends on the accepted number of shifts, as well as the end of the shift recognized as a day shift.

<1>Approved Decree of the State Committee of the USSR on Labor and Social Affairs and the Secretariat of the All-Union Central Council of Trade Unions of May 7, 1987 N 294 / 14-38.

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Terms of payment for evening and night work hours

What is night work and how is it paid?

According to Art. 96 of the Labor Code, night time is considered from 22.00 to 6.00 in the morning. Work during this period is recognized as work at night. IN employment contract hours of work are written; the employee signing the contract additionally signs his consent to work at night.

According to Article 154 of the Labor Code, an employee working during the specified time period can count on an additional payment for each hour of work. This article refers to Government Decree No. 554 of 07/22/2008, which states that the minimum surcharge is 20% of the hourly rate or salary calculated for 1 hour.

The executive body has set a lower limit beyond which employers have no right to go. But the upper limit can be higher if it is approved in:

  • collective agreement;
  • In the local act of a particular organization;
  • in an employment contract.

    • That is, the organizations themselves can increase the surcharges for their employees. It's about about the surcharge for the watch itself, and not for quality characteristics, for example, the surcharge is not affected by how much the employee produced products.

    What time does the evening start? When does evening end and night begin?

      It is customary to divide the day into day, evening, night, morning into 4 equal parts, that is, 6 hours each.

      The generally accepted (which is more common) division looks like this:

      12.00 - 18.00 is the day.

      18.00 - 24.00 is the evening.

      00.00 - 6.00 - night.

      6.00 - 12.00 is morning.

      But there is another division, the followers of which are based, for example, on physiological ones. Followers therapeutic fasting And healthy lifestyle I affirm that from 3.00 to 5.00 is the dew point; when new blood is born, which means that a person should sleep at this time.

      From 5.00 to 7.00 new blood is born, at this time a person should have breakfast.

      From 17.00 - 1.00 hours. If you eat at this time, then the blood dies.

      Or in business etiquette it is customary to say good eveningquot ;, starting at 17.00.

      Therefore, there is such a division into evening, night, day and morning.

      17.00 - 23.00 is the evening.

      23.00 - 5.00 is the night.

      5.00 - 11.00 - morning.

      11.00 - 17.00 is the day.

      If you think about it, there is logic in this. After all, it is customary to go to bed at 23.00, and some even earlier. Centenarians are already on their feet at 5 am. Previously, they got up at 5 and milked the cows, fed the cattle, and took them out to pasture. And the roosters crow when it's already light. They start crowing as early as 5:00.

      The classical arrangement of time in a day is elementary, but as a rule no one knows it :)

      If 00 and 12 are midnight and noon, what does quot mean; there can't be morning from 6 to 12 and night from 00 to 6 for example...

      Everything is proportional.

      Night - from 22 to 02 hours (00 hours - midnight)

      Morning - from 02 to 07 hours.

      Day - from 07:00 to 17:00 (12:00 - noon)

      Evening - from 17 to 22 hours.

      Everything is logical, at 17 o'clock they have an afternoon snack and drink tea, this is the beginning of the evening.

      It lasts 5 hours - all the time when it gets dark. Then the night is all beneficial processes in the human body

      leak in a dream at this particular time (if you go to bed later than 2 hours, then they do not leak at all!)

      In old films, you can easily hear: he called me at two in the morning because it's right! And the morning also goes 5 hours - at this time, wars and battles began, at about 3-4 in the morning they got up earlier in the villages to do household chores. The day starts at 7 o'clock!

      Ten o'clock in the evening, but eleven o'clock in the morning means the night comes after ten

      Three in the morning, but four in the morning, which means morning comes at four

      Eleven o'clock in the morning, but twelve is already noon - which means that the border between morning and afternoon comes after ten.

      It is more difficult with the border of the day and the evening, but in my opinion it is five o'clock, it is already evening and probably the border of the day is determined by four o'clock in the afternoon.

      This is purely my reasoning and feelings, so I can be wrong - criticism is accepted.

      For some reason I always thought this:

      0-6 hours is NIGHT.

      6-12 o'clock is MORNING

      12-18 hours is DAY

      18-24 hours is EVENING

      This is, so to speak, legallyquot ;. And in life - the evening, when the sunset is already close, the morning - when the sun is still low. Night - as soon as it gets dark.