In our country, military service appeared many centuries ago. Even in the Moscow state there was a well-organized army, in which only nobles served. A full-fledged regular army appeared under Peter I on the basis of conscription, which included peasants, townspeople and other tax-paying classes. In turn, Alexander II introduced universal personal conscription for the country's male population. Currently, male citizens aged 18 to 27 are subject to conscription for military service. At the same time, the next autumn conscription campaign for recruits began on October 1. In the article we will look at the responsibilities of the employer in relation to conscript employees.
Who can be summoned
Legal regulation in the field of military duty and military service is regulated by Federal Law No. 53-FZ of March 28, 1998 “On Military Duty and Military Service” (hereinafter referred to as Law No. 53-FZ). The procedure for conscription is prescribed in the Regulations on the conscription of citizens of the Russian Federation for military service (hereinafter referred to as the Regulations on conscription), approved by Decree of the Government of the Russian Federation of November 11, 2006 N 663. Instructions for the preparation and conduct of events related to the conscription of citizens of the Russian Federation for military service are not in reserve, approved by Order of the Minister of Defense of the Russian Federation dated October 2, 2007 N 400 (hereinafter referred to as the Instructions).
Male citizens aged 18 to 27 years who are or are required to be registered with the military and who are not in the reserves are subject to conscription for military service (Clause 1, Article 22 of Law No. 53-FZ). An exception is made for the following persons (Articles 23 and 24 of Law No. 53-FZ):
— exempt from military duty (for health reasons, relatives of deceased servicemen, etc.);
- those who have a deferment (for health reasons; single dads with two or more children; guardians of minor brothers/sisters; having a child and a pregnant wife whose pregnancy is at least 26 weeks, etc.);
- those who are not subject to conscription (those who have an unexpunged criminal record, are being investigated, etc.).
Call-up dates
Conscription for military service is carried out twice a year: from April 1 to July 15 and from October 1 to December 31 on the basis of decrees of the President of the Russian Federation (clause 1 of Article 25 of Law No. 53-FZ).
Table 1. Deadlines for conscription for military service of citizens who are not in the reserves
Summoning order
Conscription for military service includes (clause 1, article 26 of Law No. 53-FZ):
— attendance at a medical examination and meeting of the draft commission;
- reporting to the place of military service.
Citizens are summoned to all events related to conscription by summons from the military commissariat (clause 3 of article 26 of Law No. 53-FZ).
A similar procedure applies when sending citizens to alternative civil service. This follows from paragraphs 1 and 3 of Art. 10 of the Federal Law of July 25, 2002 N 113-FZ “On Alternative Civil Service” (hereinafter referred to as Law N 113-FZ).
For your information. A citizen has the right to replace military conscription service with alternative civilian service in cases where (Article 2 of Law No. 113-FZ):
- performing military service is contrary to his beliefs or religion;
- he belongs to a small indigenous people, leads a traditional way of life, carries out traditional farming and is engaged in traditional crafts.
The Regulations on the procedure for performing alternative civil service (hereinafter referred to as the Regulations) were approved by Decree of the Government of the Russian Federation of May 28, 2004 N 256.
Alternative civil service is a special type of labor activity in the interests of society and the state, carried out by citizens in exchange for conscription military service (clause 1 of the Regulations). The replacement of military service with an alternative one is carried out on the basis of an application submitted to the military commissariat (clause 1 of article 11 of Law N 113-FZ). The lack of popularity of alternative service is due to its duration, which is 1.5 - 1.75 times longer than the period of conscription military service (Article 5 of Law No. 113-FZ).
A summons is a document by which conscripts are summoned to the military commissariat to clarify issues of military registration and carry out activities related to the preparation and conduct of conscription for military service. The summons must be signed by the military commissar and certified with the seal of the military commissariat. The summons indicates the reason for the call (Appendix No. 30 to the Instructions):
— to clarify military registration documents;
— to undergo a medical examination or activities related to it;
- to pass the draft board;
- to be sent to the place of military service;
- for referral to alternative civilian service.
As a rule, the summons is handed over to the conscript no later than three days before the deadline specified in it (clause 34 of the Instructions).
We pay for employee absence from work
During the employee’s participation in activities to ensure the fulfillment of military duties (registration for military service, passing a medical examination, appearing at a meeting of the draft board), the employer must relieve him from performing labor duties. These employees retain their place of work and are paid an average salary (Article 170 of the Labor Code of the Russian Federation and paragraph 1 of Article 6 of Law No. 53-FZ).
Average earnings are calculated according to the rules specified in Art. 139 of the Labor Code of the Russian Federation and in the Regulations on the specifics of the procedure for calculating average wages, approved by Decree of the Government of the Russian Federation of December 24, 2007 N 922.
For your information. In tax accounting of the amount of average earnings retained by an employee during the performance of military duty:
— taken into account as part of labor costs (clause 6 of Article 255 of the Tax Code of the Russian Federation);
— are subject to personal income tax (Article 209, paragraph 1 of Article 210, Article 217 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance of Russia dated November 10, 2009 N 03-04-05-02/13);
- are subject to insurance contributions for compulsory social insurance (Part 1, Article 7 and Article 9 of the Federal Law of July 24, 2009 N 212-FZ “On Insurance Contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund ", hereinafter - Law N 212-FZ; Letter of the Federal Insurance Service of the Russian Federation dated April 13, 2011 N 14-03-11/08-3338);
- are subject to contributions for compulsory insurance against industrial accidents and occupational diseases (Articles 20.1 and 20.2 of the Federal Law of July 24, 1998 N 125-FZ “On compulsory social insurance against industrial accidents and occupational diseases”, hereinafter referred to as Law N 125-FZ; Letter of the Federal Insurance Service of the Russian Federation dated November 17, 2011 N 14-03-11/08-13985).
If the company uses unified forms, then the time of employee’s participation in activities to ensure the fulfillment of military duty is reflected in the work time sheet with the letter code “G” or the digital code “23” (Resolution of the State Statistics Committee of Russia dated January 5, 2004 N 1 “On approval of unified forms of primary accounting documentation for the accounting of labor and its payment"; hereinafter referred to as Resolution No. 1).
For your information. When called up for service, military registration and enlistment offices send citizens for a medical examination (Clause 1, Article 5 of Law No. 53-FZ). Since 2014, examination and examination of citizens during initial military registration and conscription for military service are carried out in accordance with the Regulations on military medical examination, approved by Decree of the Government of the Russian Federation of July 4, 2013 N 565.
We reimburse expenses
Average earnings paid during participation in activities to fulfill military duty (taking into account accruals to funds), expenses associated with renting housing and paying for travel to another area and back, as well as travel expenses are subject to reimbursement from the budget. This follows from paragraph 2 of Art. 5 of Law No. 53-FZ and paragraphs. 5 clause 2 and clause 4 of the Rules for compensation of expenses incurred by organizations and citizens of the Russian Federation in connection with the implementation of the Federal Law “On Military Duty and Military Service”, approved by Decree of the Government of the Russian Federation of December 1, 2004 N 704 (hereinafter referred to as the Rules for Compensation of Expenses) .
Arbitrage practice. The courts explained that during the period of medical examination, as well as other measures to ensure the fulfillment of military duty, employers pay average earnings to working citizens, on which insurance premiums are calculated.
In the future, the military commissariat is obliged to compensate the employer for expenses associated with both the payment of average earnings and the payment of insurance premiums. This conclusion is contained in the following Resolutions: FAS of the North-Western District dated November 9, 2012 in case N A26-493/2012 (Determination of the Supreme Arbitration Court of the Russian Federation dated December 28, 2012 N VAS-17305/12), FAS of the Ural District dated September 5, 2013 N F09- 8466/13, FAS of the Far Eastern District dated 06/09/2012 N F03-2011/2012 (Determination of the Supreme Arbitration Court of the Russian Federation dated 10/19/2012 N VAS-13062/12), FAS of the West Siberian District dated 07/05/2013 in case N A46-29291/2012 .
To pay compensation, you must submit to the military commissariat (clause 5 of the Rules for compensation of expenses):
— a letter indicating reimbursable expenses and bank details of the organization (the signature of the manager (deputy manager) and the company seal are placed on the official letterhead);
- copies of documents on actual expenses incurred.
For a sample letter, see example 1.
For your information. In case of compensation of employer expenses from the budget, the funds received are reflected in non-operating income (Letter of the Ministry of Finance of Russia dated November 11, 2011 N 03-03-06/2/170).
The procedure for dismissing conscripts
The basis for the dismissal of an employee is a summons to appear at the military commissariat for dispatch to the place of military service or for assignment to alternative civilian service (clause 16 of the Regulations on conscription, clause 2 of Article 14 of Law No. 113-FZ, Appendix No. 30 to the Instructions ).
For your information. A citizen sent to alternative civil service is obliged to appear at the time and place specified in the agenda and receive, with a personal signature, an order to leave for the place of service (Clause 2 of Article 14 of Law No. 113-FZ).
In this case, the day of termination of the employment contract is the last day of work of the conscript employee (Part 3 of Article 84.1 of the Labor Code of the Russian Federation).
The employer issues an order to terminate the employment contract due to circumstances beyond the control of the parties, in connection with the employee’s conscription for military service or in connection with the employee’s assignment to alternative civilian service (Clause 1, Part 1, Article 83 of the Labor Code of the Russian Federation).
The order is signed by the head of the company (or another authorized person), then the employee is introduced to it under his signature.
One of the following entries is made in the work book (clause 1, part 1, article 83 and clause 10, part 1, article 77 of the Labor Code of the Russian Federation):
1) “The employment contract was terminated due to circumstances beyond the control of the parties, in connection with the employee’s conscription for military service, paragraph 1 of part one of Article 83 of the Labor Code of the Russian Federation” - in case of conscription for military service;
2) “The employment contract was terminated due to circumstances beyond the control of the parties, in connection with the assignment of an employee to an alternative civil service, paragraph 1 of part one of Article 83 of the Labor Code of the Russian Federation” - when sent to an alternative civil service.
A sample of filling out a work book about the termination of an employment contract in connection with the employee’s conscription for military service.
INFORMATION ABOUT THE OPERATION OF TC N 8604301
| N entries | date | Information about hiring, transfer to another permanent job, qualifications, dismissal (indicating reasons and reference to the article, clause of the law) | Name, date and number of the document on the basis of which the entry was made | ||
| Number | Month | Year | |||
| 1 | 2 | 3 | 4 | ||
| 7 | 12 | 11 | 2014 | Employment contract terminated | Order |
| Due to circumstances, no | From 11/11/2014 | ||||
| Depending on the will of the parties, in | N 48-k | ||||
| Connections with the employee's call | |||||
| For military service, point 1 | |||||
| Parts of the first article 83 | |||||
| Labor Code | |||||
| Russian Federation | |||||
| HR Specialist | |||||
| Markina E. A. Markina | |||||
| Seal of LLC "Saldo" | |||||
| Signature |
Upon receipt of the work book, the employee signs in the personal card and in the book recording the movement of work books and inserts in them. This follows from clause 41 of the Rules for maintaining and storing work books, producing work book forms and providing them to employers, approved by Decree of the Government of the Russian Federation of April 16, 2003 N 225.
On the day of dismissal, the employee is paid the following amounts (Article 140 and Part 3 of Article 178 of the Labor Code of the Russian Federation):
1) wages for the time actually worked;
2) compensation for all unused vacations;
3) severance pay in the amount of two weeks’ average earnings.
The taxation procedure for these payments is reflected in the table.
Procedure for taxation of payments upon dismissal of conscripts
For your information. The Rules on regular and additional leaves, approved by the People's Commissariat of the USSR on April 30, 1930 N 169 (hereinafter referred to as the Rules), are still relevant. Let us remind you that when an employee is dismissed who has not used his right to vacation, he is paid compensation for unused vacation. In this case, dismissed persons who have worked for this employer for at least 11 months receive full compensation. Also, full compensation is due to employees who have worked from 5.5 to 11 months if they quit due to entering active military service (clause 28 of the Rules).
Responsibility
If the employer does not provide citizens with the opportunity to appear at the military registration and enlistment office on time, the head of the organization or other official will be fined in the amount of 500 to 1000 rubles. (Article 21.2 of the Code of Administrative Offenses of the Russian Federation).
For an employee, failure by citizens to fulfill military registration obligations entails a warning or the imposition of an administrative fine in the amount of 100 to 500 rubles. (Article 21.5 of the Code of Administrative Offenses of the Russian Federation). Evasion from military service is a criminal offense.
Thus, evasion of conscription for military service is punishable (Part 1 of Article 328 of the Criminal Code of the Russian Federation):
- a fine of up to 200,000 rubles. or in the amount of salary or other income for a period of up to 18 months;
- or forced labor for up to two years;
- or arrest for up to six months;
- or imprisonment for a term of up to two years.
Evasion from alternative civil service is punishable (Part 2 of Article 328 of the Criminal Code of the Russian Federation):
- a fine of up to 18,000 rubles. or in the amount of salary or other income for a period of up to six months;
— or compulsory work for a period of up to 480 hours;
- or arrest for up to six months.
Social guarantees for citizens who have completed military service
Personnel department employees should remember that the period of military service under conscription includes:
1) in the insurance period for benefits for temporary disability, pregnancy and childbirth (Part 1.1 of Article 16 of the Federal Law of December 29, 2006 N 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity”);
2) in length of service (clause 2 of article 28 of the Law of the Russian Federation of April 19, 1991 N 1032-1 “On employment in the Russian Federation”) at the rate of one day of military service for two days of work (clause 3 of article 10 of the Federal Law dated May 27, 1998 N 76-FZ “On the status of military personnel”; hereinafter referred to as Law N 76-FZ);
3) in the insurance period for pensions (counted if the period of service was preceded or followed by periods of work or other activities) (clause 1, clause 1 and clause 2, article 11 of the Federal Law of December 17, 2001 N 173-FZ “ On labor pensions in the Russian Federation").
Citizens discharged from military service are granted the following additional rights to employment and social security (Clause 5, Article 23 of Law No. 76-FZ):
— provision by employment services of priority work, taking into account their specialty in government organizations;
— preservation for three months after dismissal from military service for citizens who worked in government organizations before conscription, the right to work in the same organizations in a position not lower than the one occupied before conscription;
- priority right to remain in the job they first started in the event of a reduction in staff;
- providing citizens dismissed after completing military service by conscription and accepted to their previous place of work with financial assistance in the manner determined by Decree of the Government of the Russian Federation of November 25, 1998 N 1394 “On the procedure for providing citizens dismissed after completing military service by conscription and accepted to their previous place of work” place of work, financial assistance for the initial establishment of a household” (at least 500 rubles).
The time spent in alternative civil service is counted toward the total and continuous work experience and into the length of service in the specialty (Clause 2, Article 19 of Law No. 113-FZ). At the same time, for three months after the citizen’s dismissal from service, the right to work in the same organization and for the same position is retained, and in its absence, for another equivalent job (position) in the same or, with the consent of the employee, another organization ( Clause 4 of Article 19 of Law No. 113-FZ).
Citizens called up for military or alternative service during the period of training, upon dismissal from service, retain the right to continue their education in educational organizations in which they studied before conscription (clause 5 of article 19 of Law No. 76-FZ and clause 5 of art. 19 of Law No. 113-FZ).
Dismissal due to conscription into the army is one of the reasons for termination of the work of a subordinate on grounds that do not depend on the will of the parties to the contract. The draft commission or military commissar gives an order that is binding on both parties to the employment contract. A summons from the military commissariat about the need to appear at the place of demand on a certain day and time will become the basis on which the contract will be terminated. There is no need or obligation for the employee to write a statement, since the parties do not influence the circumstances under which the contract is terminated. However, the employer may take the employee's application.
What is the deadline for dismissal due to conscription?
The specific term for termination of the contract on this basis has not been determined. Objectively, dismissal due to conscription must be carried out before the deadline (date of appearance), which is indicated in the summons from the military registration and enlistment office. The employment contract must be terminated on the employee’s last day of work.
What to write in the order and work book
The employer issues an order terminating the contract due to conscription into the army, in the form T-8 or T-8a, which is established by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1.
The order states:
- Business name;
- location;
- number, date;
- FULL NAME. and the position of the employee;
- date and reason for dismissal.
The date of dismissal due to conscription is the employee’s last day of work preceding the date of dispatch to the place of direct service. It is necessary to pay attention to the fact that when issuing an order, it makes reference to clause 1 of part 1 of Article 83 of the Labor Code of the Russian Federation. The order is signed by the manager. The employee specified in the order gets acquainted with it under his signature indicating the date. If the employer does not have the opportunity to familiarize the employee with the order in writing or if he does not want to familiarize himself with it under his signature, an appropriate note must be made in the document.
The basis for making an entry in the work book is an order. Entries are made according to the following rules:
- Column 1 indicates the serial number of the entry being made;
- in column 2 - date of dismissal due to conscription;
- in column 3 - reasons and grounds in wording that exactly repeats the wording of the order;
- in column 4 - details of the order (instruction).
The entry in the work record for the period of activity with the employer is certified by his signature or the signature of the person responsible for maintaining work records, a seal (if any), as well as the signature of the employee himself.
When to calculate
On the day of dismissal, final payment must be made to the employee. The payments he should receive include:
- wages for the time actually worked before the day of dismissal due to conscription;
- monetary compensation for unused vacation (if vacation pay is accrued in advance, it cannot be withheld);
- severance pay, the amount of which is two weeks’ average earnings, which is not subject to personal income tax.
What happens if you don't fire?
The issue of maintaining a job for an employee called up for military service is of interest to many employers. In a state institution, in accordance with the law “On the Status of Military Personnel” (clause 5 of Article 23), the employer retains the right to enter the same state organization for three months after dismissal from military service.
Sometimes a situation arises in which an employee did not quit before joining the army, either out of ignorance or intentionally. The manager needs to clarify the fact that the employee has actually served. Next, the employer unilaterally terminates the employment contract. If it is not possible to issue a work book on the last day of work, the employee is notified of the need to obtain it or be allowed to send it by mail. If there is no response, the work book is stored at the place of work. At the end of military service, the employee can pick it up or, by writing a statement, request that it be sent by mail. Thus, termination of the contract when joining the army is mandatory for the employer, even if the employee did not quit in person, he will be discharged in absentia due to conscription.
In all cases, even with consent, pregnant women, minor employees and some other categories cannot be recalled from leave. Compensation for leave after dismissal An application for leave must be signed by management. If an employee quits without using the right to annual paid leave, he is entitled to monetary compensation, the amount which depends on the time worked. To do this, the average daily earnings are calculated and multiplied by the number of days that must be provided as a vacation period. If an employee has worked in the organization for less than 15 calendar days in total, he will not be paid vacation compensation. If he worked more than 15 days, then vacation pay compensation is paid for 1 full month.
Chapter 19. vacations
Attention
This does not take into account the time spent working in the organization: the vacation period can begin even if the total length of service is only 6 months. Rules for transferring leave and paying compensation Leave can be divided into parts An employee has the right to divide annual leave into several periods, one of which must be at least 14 days. The employee must use the full number of vacation days before the end of the calendar year; some days can be replaced by monetary compensation by agreement with the employee.
If an employee cannot be sent on vacation due to operational necessity, then the employer is obliged to pay him full compensation for all days. However, the law prohibits replacing vacation with monetary compensation for 2 consecutive years or more. For minors, such a replacement is impossible in principle, even by agreement of the parties.
Annual paid vacation
In this case, next year the employee will receive the full amount of benefits for all days provided.
- You can get the remaining days in the same year in a few weeks or months. This issue is agreed upon with the employer.
- Instead of the remaining days, the employee has the right to receive monetary compensation. This is usually done if there is no way to use the remaining days and the employee cannot return to the interrupted vacation.
- In all cases, the revocation of their leave is only voluntary and is issued with the consent of the employee.
If an employee refuses to go to work or has left the city, this cannot be the reason for any penalties from management.
Rules for granting regular leave
Typically, the duration of such a period is twenty-eight calendar days. As a rule, the procedure for granting vacations allows each employee of the organization to take advantage of annual paid days of rest. This time may be extended in accordance with the Labor Code and company regulations.
Receiving additional days of rest Additional leave, during which the place and average monthly pay are retained, is provided to persons:
- those involved in hazardous and harmful work activities;
- with a special specific nature of work;
- with irregular days;
- working in the Far North or in places with difficult working conditions.
The organization, due to its capabilities - both financial and production - can itself regulate the procedure for providing additional days of rest, even if this is not provided for by labor legislation.
Rules for granting leave to an employee under the Labor Code. Basic Rules
Such a year is counted from the date the employee starts working, and not from January 1 (Article 123 of the Labor Code of the Russian Federation). As for the first year of work with a new employer, the employee has the right to use vacation after 6 months. But by agreement with management, a newly hired employee can go on vacation earlier (Art.
122
Important
Labor Code of the Russian Federation). The next paid vacation can be granted to an employee at any time during the calendar year in accordance with the vacation schedule (Article 122 of the Labor Code of the Russian Federation). Each employer approves such a schedule no later than 2 weeks before the start of the calendar year, i.e. no later than December 17 of the current year, a vacation schedule for the next year must be drawn up and approved (Article 123 of the Labor Code of the Russian Federation). If an employee is going on vacation as scheduled, then there is no need to take an application from him for another vacation.
The procedure for granting vacations. labor code of the russian federation
Leave for students Study leave is granted to people for study by the employer or by self-studying in state accredited bachelor's, specialist's, and master's programs in part-time and part-time forms of study. The organization provides an additional period of rest while maintaining the average salary for certification in the first and second year for a period of up to forty calendar days. In subsequent courses - up to 50. Leave without pay is also provided:
- Persons admitted to entrance examinations.
- Employees who are students of preparatory departments of higher educational institutions for final certification.
- For people to pass certification for bachelor's, specialty and master's degrees on a full-time basis.
- Workers who are mastering state programs for distance learning to obtain accreditation.
Home → Accounting consultations → Vacations Current as of: May 16, 2016 Every person working under an employment contract has the right to vacation (Part 5, Article 37 of the Constitution of the Russian Federation, Article 21 of the Labor Code of the Russian Federation). Vacation refers to the employee’s rest time, i.e. during this period he is released from performing his job duties and has the right to use this time as he sees fit (Art.
106, 107 Labor Code of the Russian Federation). Paid leave is provided to the employee annually (Article 122 of the Labor Code of the Russian Federation). For the period of the next vacation under the Labor Code of 2016, the employee retains his place of work (position), as well as his average earnings (Article 114 of the Labor Code of the Russian Federation). That is, the vacation is paid at the expense of the employer. Paid leave must be provided to an employee regardless of his place of work, shift, form of remuneration, position held, term of the employment contract, legal form of the employer, etc.
Info
All employees carrying out their activities under an employment contract are entitled to annual paid leave. Its payment is based on regulatory documents regulated by Russian legislation. What is leave and who can use it? Annual leave is a paid break from work that every employee of an organization can take to restore strength and performance.
During this period, he retains his position and the average salary. Persons who are in permanent, temporary or seasonal work can take advantage of the right to labor leave. And also people who carry out their production activities part-time, at home, remotely, etc.
The vacation period cannot be canceled or shortened. The rule does not apply to employees with civil labor contracts, such as contract agreements, assignments.
Is the job retained during annual leave?
If an employee has not worked for 6 months at a part-time job, leave is provided in advance. The rules on vacations (approved by the People's Commissariat of Labor of the USSR on April 30, 1930), currently in force in the part that does not contradict the Labor Code of the Russian Federation, stipulate that vacation can be granted before the right to it becomes available, i.e. in advance. In this case, the vacation must be full, i.e., the duration established by law, and also paid in full.
In addition, the issue of the possibility of providing leave in advance can also be regulated in a collective agreement or other local regulatory act of the organization. Vacation for the second and subsequent years of work can be granted at any time of the year in accordance with the vacation schedule. The vacation schedule is drawn up no later than two weeks before the start of the calendar year.
Also, the vacation must be postponed if the employee, due to production needs, agreed not to go on vacation in the current working year, or was recalled from vacation. Payment of vacation days to employees for profit tax purposes Payment of vacation days to employees is taken into account for profit tax purposes as part of labor costs (clause 1 of Article 252, clause 7 of Article 255 of the Tax Code of the Russian Federation). We are talking about vacation pay paid in accordance with the legislation of the Russian Federation. That is, this is the payment:
- basic annual leave (regular or extended);
- annual additional leave provided to certain categories of employees;
- educational leave, for the period of which the employee retains his average earnings (Articles 173-176 of the Labor Code of the Russian Federation, clause 13 of Art.
