Consultation on 18.09.18

How does a vacation without salary affect the calculation of seniority and additional leave?

180918

According to the Law of Ukraine of 15.11.1996. No. 504/96-ВР "On Vacations" (hereinafter referred to as the Law), annual leave is divided into main and additional. In accordance with Article 6 of the Law, annual annual leave is granted to employees for a period of not less than 24 calendar days for the worked working year, which is counted from the date of conclusion of the employment contract.

According to Part 2 of Article 5 of the Law, festive and non-working days (Article 73 of the Labor Code of Ukraine, Labor Code), when determining the length of annual leave, are not taken into account. That is, according to the general rule, 24 calendar days of basic leave are granted for 354 calendar days of the working year (365 kd - 11 festive and non-working days).

The duration of additional leave (in calendar days) for working with harmful and difficult working conditions (Article 7 of this Law) and for the special nature of labor (Article 8) is established by the law itself, but their specific duration is determined by collective or employment contract depending on the time employment of the employee in the appropriate conditions.

The procedure for calculating the length of service, which gives the right to annual leave, is defined in Article 9 of the Law. Thus, for the length of service, which gives the right to annual annual leave, in particular, the time when the employee actually did not work, but his place of work (position) was stored and his salary was not paid in the manner prescribed by Articles 25 and 26 of this Law .

The conditions and duration of holidays without salary are set in Articles 25, 26 of the Law.

As stated in Article 26 of the Law on family circumstances and for other reasons, an employee may be granted a leave without salary for the period stipulated by the agreement between the employee and the owner or the body authorized by him, but not more than 15 calendar days a year. It is such a duration of free leave (no more than 15 pp) will not affect the length of time to provide annual annual leave.

In a letter dated 19.09.2013. №416 / 13 / 116-13, the Ministry of Social Policy states that: "Important guarantees for granting holidays without salary established by Articles 25 and 26 of the Law of Ukraine" On holidays "is that at the time of their provision, the employee retains his place of work (position), and the time spent on such leave in accordance with clause 4 of Article 9 of the Law of Ukraine "On Vacations" is counted towards the length of work that gives the right to annual annual leave. "

Thus, firstly, the provision of free leave of a longer duration than provided by the Law, even on the initiative of the employee, is a violation of his minimum guarantees. For this, the sanctions foreseen for legal entities and individuals - entrepreneurs who use hired labor, established Paragraph 9 of Article 265 of the Labor Code - in the amount of the minimum wage.

Secondly, the exceeding of the permissible duration of free leave will result in a shortening of the length of service for the annual main leave (the days of the excess will not be taken into account).

Before the work experience, which gives the right to annual additional leave (Articles 7 and 8 of this Law), shall be credited:

1) the time of actual work with harmful, difficult conditions or with a special character of labor, if the employee is employed in these conditions not less than half the length of the working day established for workers of this production, shop, profession or position;

2) the annual basic and additional leave for working with harmful, difficult conditions and for the special nature of work;

3) the working time of pregnant women translated on the basis of a medical opinion for easier work, in which they are not exposed to adverse manufacturing factors.

The absence of salaries in the working year without salary savings (regardless of their duration) has no effect on the length of service for the provision of annual additional leave.

Ольга Пономаренко                   ТОВ АФ «Профі – Аудит»