The actual work time is included in the length of service. Calculation of length of service giving the right to annual basic paid leave

The length of service that gives the right to annual basic paid leave includes:

actual work time;

time when the employee did not actually work, but in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract, he retained his place of work (position), including the time of the annual paid leave, non-working holidays, days off and other rest days provided to the employee;

time of forced absence due to illegal dismissal or suspension from work and subsequent reinstatement to the previous job;

the period of suspension from work of an employee who has not undergone a mandatory medical examination through no fault of his own;

the time of unpaid leave provided at the request of the employee, not exceeding 14 calendar days during the working year.

The length of service that gives the right to annual basic paid leave does not include:

the time the employee is absent from work without good reason, including due to his removal from work in the cases provided for in Article 76 of this Code;

time of parental leave until the child reaches the legal age;

the paragraph is no longer valid. - Federal Law of July 22, 2008 N 157-FZ.

The length of service that gives the right to annual additional paid leave for work with harmful and (or) dangerous working conditions includes only the time actually worked in the relevant conditions.

Comments to Art. 121 Labor Code of the Russian Federation

1. The length of service required to receive annual paid leave is the actual time worked, i.e. the period during which the employee actually performed the job duties assigned to him (moreover, job duties can be performed outside the place of permanent work, for example, on business trips, when transferred due to production needs to another organization or due to downtime). The length of service begins to be calculated from the date of commencement of work for a particular employer.

When calculating the length of service for leave, the time when the employee did not actually work, but retained his place of work (position) and salary (in whole or in part), time spent at military training, at a medical examination, examination or treatment related to military registration; time of participation in the work of election commissions; appearing when summoned to the bodies of inquiry, preliminary investigation, to the prosecutor and to the court as a witness, victim, expert, specialist, translator, attesting witness; time of participation in court hearings as a juror; appearing when summoned to the pension assignment commission as a witness to testify about work experience; time of annual leave and study leave; time for advanced training and retraining of workers with separation from production and while maintaining their place of work (position) and earnings; the time the employee spends in a medical institution for examination, if he is required to undergo it by type of activity; days of release from work for donors to donate blood and then provided days of rest, etc.

2. The length of service that gives the right to leave includes the time of paid forced absence in the event of illegal dismissal or suspension from work and subsequent reinstatement to the previous job.

3. When calculating length of service, the time when the employee did not actually work, but retained his place of work (position) and received state social insurance benefits, with the exception of partially paid parental leave until he reaches the age of 1.5, must also be taken into account. years. According to current legislation, state social insurance benefits are issued in case of illness (injury) associated with loss of ability to work; sanatorium-resort treatment; illness of family members in case of need to care for them; quarantine; prosthetics with placement in the hospital of a prosthetic and orthopedic enterprise; maternity leave.

4. The main unit of account for calculating the length of service giving the right to annual leave is the month.

The number of days of work being less than a month is taken into account. Thus, when calculating length of service giving the right to additional leave for work with harmful working conditions, and when paying compensation for unused leave upon dismissal, the number of days of work that is less than half a month is excluded from the calculation, and half or more is rounded up to the nearest month.

5. When calculating length of service giving the right to leave, the length of the working day and working week does not matter. Part-time employees receive annual basic leave of the same duration as employees performing similar work with normal working hours. Only the amount of payment for vacation time will be different.

6. Other periods of time, which are taken into account when calculating length of service and give the right to basic paid leave, may be determined by a collective agreement and other local acts.

7. According to Part 3 of the commented article, the length of service that gives the right to annual additional paid leave for work with harmful and (or) dangerous working conditions includes only the time actually worked in the relevant conditions. The word “only” changed the approach to inclusion in the work experience, which gives the right to the specified additional leave, of certain periods along with the time actually worked in harmful conditions (period of temporary disability, performance of state and public duties, etc.).

The right to use vacation for the first year of work in accordance with Art. 122 Labor Code arises for the employee after 6 months. his continuous employment with this employer. Under this condition, the provision of basic annual leave for the first year of work, if its use will be realized after 6 months. continuous work of a particular employee is, in essence, an advance, but its duration must be full, i.e. 28 calendar days.

Additional leave for work in hazardous working conditions, from our point of view, should be proportional to the time actually worked in these conditions. In this case, proportionality should be calculated based on the estimated number of days of additional leave that the employee could receive with full actual employment in hazardous working conditions during the working year.

The length of service that gives the right to annual basic paid leave includes:

actual work time;

time when the employee did not actually work, but in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract, he retained his place of work (position), including the time of the annual paid leave, non-working holidays, days off and other rest days provided to the employee;

time of forced absence due to illegal dismissal or suspension from work and subsequent reinstatement to the previous job;

the period of suspension from work of an employee who has not undergone a mandatory medical examination through no fault of his own;

the time of unpaid leave provided at the request of the employee, not exceeding 14 calendar days during the working year.

The length of service that gives the right to annual basic paid leave does not include:

the time the employee is absent from work without good reason, including due to his removal from work in the cases provided for in Article 76 of this Code;

time of parental leave until the child reaches the legal age;

the paragraph is no longer valid.

The length of service that gives the right to annual additional paid leave for work with harmful and (or) dangerous working conditions includes only the time actually worked in the relevant conditions.

Commentary on Article 121 of the Labor Code of the Russian Federation

1. The length of service required to receive annual paid leave is the actual time worked, i.e. the period during which the employee actually performed the job duties assigned to him (moreover, job duties can be performed outside the place of permanent work, for example, on business trips, when transferred due to production needs to another organization or due to downtime). The length of service begins to be calculated from the date of commencement of work for a particular employer.

When calculating the length of service for leave, the time when the employee did not actually work, but retained his place of work (position) and salary (in whole or in part), time spent at military training, at a medical examination, examination or treatment related to military registration; time of participation in the work of election commissions; appearing when summoned to the bodies of inquiry, preliminary investigation, to the prosecutor and to the court as a witness, victim, expert, specialist, translator, attesting witness; time of participation in court hearings as a juror; appearing when summoned to the pension assignment commission as a witness to testify about work experience; time of annual leave and study leave; time for advanced training and retraining of workers with separation from production and while maintaining their place of work (position) and earnings; the time the employee spends in a medical institution for examination, if he is required to undergo it by type of activity; days of release from work for donors to donate blood and then provided days of rest, etc.

2. The length of service that gives the right to leave includes the time of paid forced absence in the event of illegal dismissal or suspension from work and subsequent reinstatement to the previous job.

3. When calculating length of service, the time when the employee did not actually work, but retained his place of work (position) and received state social insurance benefits, with the exception of partially paid parental leave until he reaches the age of 1.5, must also be taken into account. years. According to current legislation, state social insurance benefits are issued in case of illness (injury) associated with loss of ability to work; sanatorium-resort treatment; illness of family members in case of need to care for them; quarantine; prosthetics with placement in the hospital of a prosthetic and orthopedic enterprise; maternity leave.

4. The main unit of account for calculating the length of service giving the right to annual leave is the month.

The number of days of work being less than a month is taken into account. Thus, when calculating length of service giving the right to additional leave for work with harmful working conditions, and when paying compensation for unused leave upon dismissal, the number of days of work that is less than half a month is excluded from the calculation, and half or more is rounded up to the nearest month.

5. When calculating length of service giving the right to leave, the length of the working day and working week does not matter. Part-time employees receive annual basic leave of the same duration as employees performing similar work with normal working hours. Only the amount of payment for vacation time will be different.

6. Other periods of time, which are taken into account when calculating length of service and give the right to basic paid leave, may be determined by a collective agreement and other local acts.

7. According to Part 3 of the commented article, the length of service that gives the right to annual additional paid leave for work with harmful and (or) dangerous working conditions includes only the time actually worked in the relevant conditions. The word “only” changed the approach to inclusion in the work experience, which gives the right to the specified additional leave, of certain periods along with the time actually worked in harmful conditions (period of temporary disability, performance of state and public duties, etc.).

The right to use vacation for the first year of work in accordance with Art. 122 Labor Code arises for the employee after 6 months. his continuous employment with this employer. Under this condition, the provision of basic annual leave for the first year of work, if its use will be realized after 6 months. continuous work of a particular employee is, in essence, an advance, but its duration must be full, i.e. 28 calendar days.

Additional leave for work in hazardous working conditions, from our point of view, should be proportional to the time actually worked in these conditions. In this case, proportionality should be calculated based on the estimated number of days of additional leave that the employee could receive with full actual employment in hazardous working conditions during the working year.

The employee has the right to annual leave from the first day of work. But to obtain it, a certain amount of work experience with a given employer is necessary, and only if such experience is available, an employee can demand leave, and the employer is obliged to provide it.

The length of service giving the right to receive leave is calculated in the manner established by Article 121 of the Labor Code of the Russian Federation and some other regulations. The length of service that gives the right to annual paid leave includes:

• 1. time of actual work, i.e. the time during which the employee actually performed the job duties assigned to him. This is the basis of the length of service for obtaining leave and its largest part.
• 2. the time when the employee did not actually work, but in accordance with federal laws, he retained his place of work (position), including the time of annual paid leave;

This includes:

• - the time the employee performs state or public duties (for example, time spent at military training, medical examination, examination or treatment related to military registration, exercise of the right to vote, appearance when called by the inquiry authorities);
• - time of annual paid vacations and educational leaves;
• - time for training, advanced training and retraining of workers with separation from production and maintaining their place of work (position) and earnings;
• - the time the employee spends in a medical institution for examination, if he is required to undergo it by type of activity;
• - days of release from work for donors to donate blood and then provided days of rest.

time of forced absence due to illegal dismissal or suspension from work and subsequent reinstatement to the previous job;

other periods of time provided for by the collective agreement, employment contract or local regulations of the organization.

The length of service that gives the right to annual basic paid leave does not include:

1. the time the employee is absent from work without good reason, including due to his removal from work (Article 76 of the Labor Code of the Russian Federation);

This includes:

• - appearing at work in a state of alcohol, drug or toxic intoxication;
• - who has not undergone training and testing of knowledge and skills in the field of labor protection in accordance with the established procedure;
• - has not undergone a mandatory preliminary or periodic medical examination in accordance with the established procedure;
• - when, in accordance with a medical report, contraindications are identified for the employee to perform work stipulated by the employment contract;
• - at the request of bodies and officials authorized by federal laws and other regulatory legal acts, and in other cases provided for by federal laws and other regulatory legal acts.
• 2. time of leave to care for a child until he reaches the legal age;
• 3. the time of unpaid leave provided at the request of the employee, if their total duration exceeds 14 calendar days during the working year.

The length of service that gives the right to annual additional paid leave for work with harmful and (or) dangerous working conditions includes only the time actually worked in the relevant conditions.

To qualify for leave, the length of service must be continuous. In vacation legislation, the concept of continuous service means that vacation is granted only during the period of work for a given employer. Therefore, when dismissing an employee, the employer must fully complete vacation payments with him - pay monetary compensation for unused vacation or part of it.

New edition of Art. 121 Labor Code of the Russian Federation

The length of service that gives the right to annual basic paid leave includes:

actual work time;

time when the employee did not actually work, but in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract, he retained his place of work (position), including the time of the annual paid leave, non-working holidays, days off and other rest days provided to the employee;

time of forced absence due to illegal dismissal or suspension from work and subsequent reinstatement to the previous job;

the period of suspension from work of an employee who has not undergone a mandatory medical examination through no fault of his own;

the time of unpaid leave provided at the request of the employee, not exceeding 14 calendar days during the working year.

The length of service that gives the right to annual basic paid leave does not include:

the time the employee is absent from work without good reason, including due to his removal from work in the cases provided for in Article 76 of this Code;

time of parental leave until the child reaches the legal age;

paragraph four is no longer valid.

The length of service that gives the right to annual additional paid leave for work with harmful and (or) dangerous working conditions includes only the time actually worked in the relevant conditions.

Commentary on Article 121 of the Labor Code of the Russian Federation

To qualify for vacation, you must have a length of service. The procedure for calculating length of service giving the right to annual basic paid leave is regulated by Article 121 of the Labor Code of the Russian Federation. First of all, it should be noted that the list of periods includes the period of suspension from work of an employee who did not undergo a mandatory medical examination (examination) through no fault of his own. According to paragraph 2 of the List, it is proposed to include in the length of service periods “when the employee did not actually work, but in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, and an employment contract, he retained his place of work (position), including the time of annual paid leave, non-working holidays, days off and other rest days provided to the employee.”

The maximum duration of unpaid leave, beyond which these periods are not included in the length of service giving the right to annual basic paid leave, is 14 days. This way, you can take vacations at your own expense more freely. If previously the eighth (and all subsequent) days of vacation at one’s own expense during the year were not counted towards the length of service giving the right to paid leave, then according to the current rules only the fifteenth day will not be counted (Article 121 of the Labor Code of the Russian Federation).

Another comment on Art. 121 Labor Code of the Russian Federation

1. The basis for the right to leave is the length of service with a given employer. Work experience, or work experience, is the duration of work, calculated in days, months and years.

2. Article 121 of the Labor Code of the Russian Federation establishes the rules for calculating the length of service that gives the right to annual basic paid leave. All days actually worked by the employee are counted as length of service, regardless of whether he performed his immediate duties or was transferred to another job not stipulated by the employment contract. The length of service includes all days on the calendar, regardless of the specific work schedule. When working on a part-time basis, the length of service giving the right to leave includes the entire calendar period of work, regardless of whether the employee was employed part-time or less than a week.

3. Periods included in the length of service when the employee did not actually work, but retained his place of work (position), in addition to the time of annual paid leave, non-working holidays, days off and other days of rest provided to the employee:

period of temporary incapacity for work of the employee (see Article 183 of the Labor Code of the Russian Federation and commentary thereto);

maternity leave (see Article 255 of the Labor Code of the Russian Federation and commentary thereto);

time of release of pregnant women from work for dispensary examination in medical institutions (see Article 254 of the Labor Code of the Russian Federation and commentary thereto);

leave for employees who have adopted a child (see Part 1 of Article 257 of the Labor Code of the Russian Federation and commentary thereto);

additional days of rest provided to one of the parents (guardian, trustee) to care for disabled children (see Part 1 of Article 262 of the Labor Code of the Russian Federation and commentary thereto);

additional days of rest provided to women working in rural areas (see Part 2 of Article 262 of the Labor Code of the Russian Federation and commentary thereto);

days of exemption from work for donors in connection with medical examination and blood donation (see Article 186 of the Labor Code of the Russian Federation and commentary thereto);

leave with pay granted to pass exams and prepare final qualifying papers for persons combining work with training, as well as leave without pay granted to employees admitted to entrance exams in educational institutions, employees attending preparatory departments of educational institutions and employees full-time students (see Articles 173 - 176 of the Labor Code of the Russian Federation and commentary thereto);

periods when an employee performs state and public duties in cases where, in accordance with federal law, these duties must be performed during working hours (see Articles 170, 171 of the Labor Code of the Russian Federation and commentary thereto);

the period of improvement of qualifications by the employee without work at the direction of the employer (see Article 187 of the Labor Code of the Russian Federation and the commentary thereto);

time of apprenticeship on the basis of an additional apprenticeship agreement concluded by the employer with the employee (see Part 2 of Article 198 of the Labor Code of the Russian Federation and commentary thereto).

The length of service that gives the right to annual basic paid leave also includes the time of forced absence in the event of illegal dismissal or suspension from work and subsequent reinstatement to the previous job, the period of suspension from work of an employee who did not undergo a mandatory medical examination (examination) through no fault of his own.

4. Established part 2 of Art. 121 of the Labor Code of the Russian Federation, the rule on non-inclusion in the length of service that gives the right to annual basic paid leave, time of unpaid leave applies to unpaid leaves granted at the request (written application) of the employee, if their total duration exceeds 14 calendar days within working year (see to it). Having established this rule, the Labor Code did not make an exception for unpaid leave, which the employer is obliged to provide upon the application (request) of an employee (a participant in the Great Patriotic War who has the right to unpaid leave of 35 calendar days a year, a disabled worker) who has the right to receive leave without pay for 60 calendar days a year, a combat veteran, a person awarded the “Resident of Siege Leningrad” badge, etc.).

If the total duration of unpaid leave granted to an employee during the year exceeds 14 calendar days, then the length of work that gives the right to annual basic paid leave includes the entire duration of the granted unpaid leave, and not the time exceeding 14 calendar days. days.

5. The length of service giving the right to basic paid leave does not include the time of leave to care for a child until he reaches the age of three (see) and the time the employee is absent from work without good reason, including due to his removal from work (see . Article 76 of the Labor Code of the Russian Federation and commentary thereto).

6. According to Part 3 of Art. 121 of the Labor Code of the Russian Federation, the length of service that gives the right to annual additional paid leave for work with harmful and (or) dangerous working conditions includes only the time actually worked in the relevant conditions. The Supreme Court of the Russian Federation, by decision of April 15, 2004 N GKPI2004-481, declared paragraph invalid. 3 clause 8 of the Instruction approved by the Resolution of the State Committee of Labor of the USSR and the All-Russian Central Council of Trade Unions of November 21, 1975 N 273/P-20, which established that the length of service giving the right to receive additional leave for harmful working conditions also includes some other periods when the employee did not perform work under conditions associated with adverse effects on human health.

1. The right to annual paid leave arises from the first day of work, but to receive this leave you must have a certain length of service with a given employer. Only with such length of service does the employee have the right to demand leave, and the employer is obliged to provide it.

The length of service giving the right to receive leave is calculated in the manner established in Article 121 of the Labor Code of the Russian Federation.

The basis of the length of service for receiving annual paid leave and its largest part is the time of actual work, i.e. the period during which the employee actually performed the job duties assigned to him (and job duties can also be performed outside the place of permanent work, for example, on business trips).

The rule on including actually worked time in the vacation experience did not previously apply to persons serving a sentence in the form of correctional labor at the place of work. Persons sentenced to correctional labor were not granted annual leave while serving their sentence at their place of permanent work, and the period of serving correctional labor was not counted towards the length of service giving the right to leave. Currently, in accordance with Part 6 of Art. 40 of the Penal Code, during the period of serving correctional labor, a convicted person is granted an annual paid leave of 18 working days by the administration of the organization in which he works, in agreement with the penal inspection. Other types of leave provided for by the labor legislation of the Russian Federation are provided to convicted persons on a general basis.

2. When calculating the length of service for vacation, the time when the employee did not actually work is also taken into account, but beyond it in cases provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract, the place of work (position) was maintained. Part 1 of the commented article specifically states that when calculating the length of service for vacation, the time of annual paid leave, non-working holidays, weekends and other rest days provided to the employee are also taken into account.

Employees retain their place of work (position) even in cases where, in accordance with labor legislation, they are involved in the performance of state or public duties. For example, while attending military training, medical examination, examination or treatment related to military registration; participation in the work of election commissions; appearing when summoned to the bodies of inquiry, preliminary investigation or court as a witness, victim, expert, specialist, translator, attesting witness; participation in court hearings as a juror; study leaves; training, advanced training and retraining of workers away from production and while maintaining their place of work (position); the employee’s presence in a medical institution for examination, if he is required to undergo it due to his occupation; exemption from work for donors to donate blood and subsequent days of rest; suspension of work by bodies of state supervision and control over compliance with labor legislation and other regulatory legal acts containing labor law norms due to violation of labor protection requirements through no fault of the employee. These periods are also included in the length of service giving the right to annual basic paid leave.

3. The length of leave for leave in accordance with Part 1 of the commented article includes the period of suspension from work of a person who has not undergone a mandatory medical examination (examination) through no fault of his own, and the time of forced absence in the event of illegal dismissal or suspension from work and subsequent reinstatement at work (see commentary to Articles 76 and 394). Although the commented article does not say anything about those cases when an employee had forced absence due to an illegal transfer to another job, it should be assumed that this period, if the employee was reinstated in his previous job, is also included in the length of service giving the right to an annual paid vacation.

The length of service that gives the right to annual basic paid leave also includes the time of unpaid leave provided at the request of the employee, not exceeding 14 calendar days during the working year. In other words, if the total (summed up) duration of vacations granted to an employee during the working year is 14 calendar days or less, then the entire actual time of these vacations is included in the length of service. If the total duration of such vacations during the working year exceeds 14 calendar days, only 14 calendar days are included in the length of service. So, for example, if during the working year an employee was granted leave for 10, 4 and 8 calendar days (a total of 22 calendar days), then only 14 calendar days will be included in the length of service giving the right to annual basic paid leave.

4. Collective or labor agreements, as well as local regulations, may establish other periods of time, in addition to those listed in Part 1 of Article 121 of the Labor Code of the Russian Federation, included in the length of service giving the right to annual basic paid leave.

5. Part 2 of the commented article establishes an exhaustive list of periods of time when an employee is absent from work, which are not included in the length of service giving the right to annual basic paid leave, including:

• time of absence from work without good reason (for example, days of absenteeism without good reason, being in custody for committing petty hooliganism);
• time of absence from work due to suspension from work in cases provided for in Art. 76 of the Labor Code, if the employee is suspended from work due to his own fault (for example, if he appears at work in a state of alcohol, drug or other toxic intoxication, if the employee has not undergone a mandatory medical examination or training and knowledge testing) (see comment. to Art. 76);
• the time of leave to care for a child until he reaches the age established by law (see commentary to Article 256, Part 2 of Article 257).

When summing up unpaid leave in accordance with the new rules, it does not matter for what purpose the employee requests such leave (for family reasons, for child care in accordance with Article 263 of the Labor Code, rest, travel). It also does not matter the category of employees who applied for such leave (pensioners, disabled people, parents of military personnel who were killed or died as a result of injury, concussion or injury received during military service, etc.). When determining the duration of unpaid leave granted to an employee during the working year, such leaves are also taken into account that the employer, in accordance with the Labor Code, is obliged to provide to the employee, for example, to working old-age pensioners and disabled people (see commentary to Article 128).

6. When calculating length of service giving the right to basic annual paid leave, the length of the working day and working week does not matter. Persons employed part-time receive annual basic paid leave under the same conditions as those performing similar work with normal working hours. Only the amount of payment for vacation time will be different for them (see commentary to Article 93).

7. Part 3 of the commented article establishes the features of calculating length of service, which gives the right to annual additional paid leave for work with harmful and (or) dangerous working conditions.

If the length of service giving the right to annual basic paid leave, in addition to the time of actual work, includes some other periods provided for in Part 1 of the commented article, then when granting the specified additional leave, only the time actually worked in the relevant industries and in work with hazardous and (or ) hazardous working conditions.

At the same time, the time worked in production, workshops, professions and positions with hazardous working conditions is counted only those days on which the employee was actually employed in these conditions for at least half of the working day established for employees of a given production, workshop, profession or positions (paragraph 1, clause 12 of the Instruction on the procedure for applying the List of industries, workshops, professions and positions with hazardous working conditions, work in which gives the right to additional leave and a shortened working day, approved by the Resolution of the State Labor Committee of the USSR and the Presidium of the All-Union Central Council of Trade Unions of November 21, 1975 N 273/P-20).

It should be noted that in connection with the entry into force of the Labor Code, the legality of applying the rule on including only the time actually worked in these conditions in the length of service giving the right to annual additional paid leave for work in harmful and (or) dangerous working conditions has been questioned . However, the Supreme Court of the Russian Federation, when considering civil cases based on statements by Nozhkov A.A. (decision of the Supreme Court of the Russian Federation dated February 6, 2002 N GKPI2002-30) and the unitary enterprise "Chelyabgortrans" (decision of the Supreme Court of the Russian Federation dated April 15, 2004 N GKPI2004-481), based on an analysis of Art. 117 and part 3 of article 121 of the Labor Code of the Russian Federation, recognized the requirements of paragraph. 2 clause 8 and para. 1 clause 12 of the said Instructions by the relevant Labor Code.

As stated in the decisions of the Supreme Court of the Russian Federation, an analysis of this norm does not allow us to conclude that an employee acquires the right to additional paid leave regardless of the duration of work in hazardous working conditions, since the law specifically stipulates that the conditions for providing this leave are approved by the Government of the Russian Federation, taking into account opinions of the Russian Tripartite Commission for the Regulation of Social and Labor Relations. Since at present the regulatory act on the conditions for providing additional leave by the Government of the Russian Federation has not yet been adopted, in accordance with Part 1 of Art. 423 of the Labor Code on the issue under consideration, the contested Instruction continues to be in force. Confirmation of the conclusion that the contested prescription of the Instruction complies with the Labor Code is also part 3 of Article 121 of the Labor Code of the Russian Federation, which provides that the length of service that gives the right to annual additional paid leave for work with harmful and (or) dangerous working conditions includes only the work actually worked in appropriate conditions time.

Along with this, when considering the application of the municipal unitary enterprise "Chelyabgortrans", the Supreme Court of the Russian Federation found some other provisions of the Instruction on the procedure for applying the List of industries, workshops, professions and positions with hazardous working conditions, work in which gives the right to additional leave and shortened work, to be inconsistent with the Labor Code day.

In particular:

• para. 3 clause 8, which provides that the length of service giving the right to additional leave to the specified employees also includes: a) a period of temporary disability; b) the time of maternity leave, the time women perform light work in connection with pregnancy, as well as the time women perform other jobs to which they were transferred due to breastfeeding or the presence of children under one year of age; c) time for performing state and public duties;
• the fifth sentence of clause 9, containing an indication that in cases where an employee’s right to annual (main) and additional leave arises at different times, then these leaves are provided to him simultaneously and in full;
• indication in paragraph. 3 examples to clause 9 of the Instruction that if annual (main) leave is provided in advance, then additional leave must also be provided in advance and in full;
• indication in the third sentence of paragraph. 4 examples to paragraph 9 that when going on vacation, a worker, along with annual (main) leave, must be given additional leave in full.

At the same time, the Supreme Court of the Russian Federation recognized the provisions of paragraph 10 of the said Instructions, which provide for the procedure for calculating length of service, which gives the right to additional leave for work with harmful working conditions, in proportion to the time worked in these conditions, as not contradicting the Labor Code. As stated in the decision of the Supreme Court of the Russian Federation, the Labor Code does not establish a mechanism for calculating length of service giving the right to additional leave. Paragraph 10 of the Instructions defines this procedure and is subject to application by virtue of Part 1 of Art. 423 TK.