Almost every institution has employees who spend most of their working time on the road - these are not only drivers, but also, for example, inspectors of regulatory authorities who travel to other organizations to carry out control and supervisory activities. What is the peculiarity of this mode of operation? Do I need to arrange business trips for short trips around the city? What guarantees and compensations are due in connection with this mode of operation? You will get answers to these and some other questions after reading the article.
Types of traveling work
Article 168.1 of the Labor Code of the Russian Federation identifies types of work in which employees are not constantly at their workplaces, but are forced to move, in particular:- work in the field;
- work in expeditionary conditions;
- work on the road;
- traveling work.
You can learn more about expeditionary work from ch. 41 of the Civil Code of the Russian Federation, Federal Law No. 30.06.2003 87-FZ "On forwarding activities" and Rules for Forwarding Activities approved Decree of the Government of the Russian Federation dated 08.09.2006 No. 554 . After analyzing these regulations, we can say that the works of an expeditionary nature include escorting cargo to its destination.
To define the concept of work in transit, we turn to Decree of the Council of Ministers of the RSFSR of December 12, 1978 No. 579 "On approval of the lists of professions, positions and categories of employees of the river, road transport and highways who are paid allowances in connection with permanent work on the road, the traveling nature of the work, as well as for business trips within the areas they serve, ”according to which this is work performed while the vehicle is in motion. By virtue of the aforementioned decree, work on the road is usually carried out by conductors, drivers, passenger transport controllers, pilots, etc.
The characteristics of traveling work are given in orders of the Ministry of Emergency Situations of the Russian Federation dated 10.01.2008 No. 3 and Ministry of Internal Affairs of the Russian Federation dated 05.10.2006 No. 780 . In particular, a traveling mode of work is considered to be one in which the employee makes regular business trips within the serviced territory (areas) with the possibility of daily return to the place of residence.
The difference between traveling work and a business trip
As you can see, from the definitions of the types of traveling work, there are clear criteria for classifying work on the road or field work cannot be distinguished. And it may turn out that the same work falls under several definitions, for example, the work of a driver can be on the road, be traveling or forwarding. But this is not scary - the main thing is not to confuse traveling work with business trips.A business trip is defined in Art. 166 Labor Code of the Russian Federation- this is a trip of an employee by order of the employer for a certain period of time to perform an official assignment outside the place of permanent work. Attention is drawn to the fact that business trips of persons permanent job which is carried out on the way or has a traveling character, are not recognized as business trips. There is a separate Regulations on the peculiarities of sending employees on business trips approved Decree of the Government of the Russian Federation of October 13, 2008 No. 749 . Wherein Art. 167 Labor Code of the Russian Federation the seconded employee is guaranteed the preservation of the place of work (position) and average earnings, as well as reimbursement of expenses associated with a business trip - for travel, renting a dwelling, additional expenses associated with living outside the place of permanent residence (per diem), and other expenses incurred by an employee with the permission or knowledge of the employer.
note
Specific reimbursement rates travel expenses established Decree of the Government of the Russian Federation dated 02.10.2002 No. 729 , apply only to employees budget organizations AT commercial organizations business trip expenses are determined by a collective agreement or other local act organizations.
The procedure for issuing business trips is established Regulations on the peculiarities of sending employees on business trips and Decree No. 1 . To do this, employers use:
- order in the unified form T-9 (T-9a);
- work order ( unified form T-10a);
- travel certificate (T-10).
Note
Pregnant women cannot be sent on a business trip ( Part 1 Art. 259 of the Labor Code of the Russian Federation), employees during the period of the apprenticeship contract ( Art. 203 of the Labor Code of the Russian Federation), persons under the age of 18 ( Art. 268 of the Labor Code of the Russian Federation), and send on a business trip the employees listed in Part 2 Art. 259 only with their written consent.
In addition, according to Art. 57 of the Labor Code of the Russian Federation the conditions that determine, if necessary, the nature of the work (mobile, traveling, on the road, etc.) must be included in the employment contract with the employee without fail. That is, if the employee will constantly be on the road, this must be made a reservation in the employment contract. But with business trips, everything is much simpler - the legislator does not oblige to provide for the possibility of sending on such business trips in an employment contract.
Note that an employee with a traveling nature of work, like other employees, can be sent on business trips. For example, the Ministry of Finance Letterdated 01.06.2005 No. 03-05-01-04/168 pointed out that if the trips of drivers are not of a permanent nature and in each case are carried out on a separate order of the employer, then these trips should be considered as business trips. However, in the same letter, the department drew attention to the peculiarity of intercity transportation: if the drivers trucks constantly work on regular intercity transportation, these trips are not recognized as business trips. In such cases, truck drivers are paid an allowance to the monthly official salary (tariff rate) for a day of work on the road..
Remember: if the employment contract with the driver stipulates that business trips are carried out only one locality, then the direction of the employee outside it will be a business trip. Accordingly, the employer will need to issue a job assignment, order and other documents.
We draw up documents for the traveling nature of the work
First of all, it should be said that according to the requirements Art. 168.1 of the Labor Code of the Russian Federation the list of works, professions and positions of employees whose permanent work is carried out on the road, is traveling or expeditionary in nature, as well as those working in the field is established by a collective agreement, agreements, local regulations.Municipal government institution
"Economic and operational service
administration of the rural settlement Pripolyarny
03/18/2014 Pripolyarny settlement
Order No. 23
on approval of the list of positions of employees,
whose permanent work has a traveling character
Guided by Art. 168.1 of the Labor Code of the Russian Federation,
I ORDER:
establish the traveling nature of work for employees with the following positions:
Driver;
Worker for the maintenance of buildings and structures.
Director Paramonov I. P. Paramonov
We repeat that due to Art. 57 of the Labor Code of the Russian Federation the condition on the traveling nature of the work must be indicated in the employment contract. If the decision to establish the traveling nature of work for a particular employee is made within labor activity, it is necessary to conclude with him an additional agreement on this to the employment contract.
In addition to the list of positions, professions and works of persons whose permanent work is carried out on the road, is traveling or expeditionary in nature, we recommend developing a local regulatory act, for example, the Regulation on the traveling nature of work, in which to prescribe the concept of these works, establish compensation payments, determine the forms of documents, which will confirm the trips, as well as the procedure for making settlements with the employee. Such a provision is approved and put into effect by the order of the employer.
Since the employer develops and approves the document flow for the traveling nature of work, we recommend using the forms from Decrees No. 1 , for example, on the basis of a travel certificate, you can develop a route sheet.
Note
Drivers are issued a waybill, the form of which is approved Decree of the State Statistics Committee of the Russian Federation dated November 28, 1997 No. 78 (depending on the type of car, the shapes differ). And organizations of road transport and urban ground electric transport should use Order of the Ministry of Transport of the Russian Federation of September 18, 2008 No. 152 "On the approval of mandatory details and the procedure for filling out waybills". Waybills are registered in a journal, the form of which is approved by the named resolution and is stored in the organization for at least five years.
An itinerary or waybill is issued for one day or a period not exceeding one month, and is handed over to an authorized person (head of a department, employee transport department, personnel department, accounting department, secretary, etc.).
The issue of filling out the time sheet for persons working on the road or having a traveling, expeditionary nature of work is still open. We believe that if the work is traveling in nature and the employee has a monthly allowance for him, in the report card working time should be marked with the code "I", since the employee, being on the road, is actually at his workplace.
Compensation for traveling work
Based Art. 168.1 of the Labor Code of the Russian Federation For persons whose permanent work is carried out on the road or has a traveling character, as well as those working in the field or participating in expeditionary work, the employer compensates for the following related to business trips:- travel expenses;
- the cost of renting a dwelling;
- additional expenses associated with living outside the place of permanent residence (daily allowance, field allowance);
- other expenses incurred by employees with the permission or knowledge of the employer.
When determining specific amounts of surcharges, pay attention to current industry agreements and remember that surcharges cannot be lower than stated in regulations. For example, due to Federal industry agreement on the road sector for 2014 - 2016 for the mobile nature of work in the regions of the Far North and in areas equated to them, as well as in the Khabarovsk, Primorsky Territories and the Amur Region, an additional payment of 40% is made, in other regions of the country - 30% tariff rate, official salary excluding coefficients and surcharges. And in cases where permanent work takes place on the road or is traveling in nature and its duration is 12 days or more per month, while employees have the opportunity to return to their place of residence daily - up to 20% of the tariff rate, official salary, and with the duration of work less than 12 days per month - up to 15% of the tariff rate, official salary, excluding coefficients and surcharges.
But in those financed from federal budget institutions subordinate to Rosmorrechflot in the field of inland water transport reimbursement of expenses to coastal workers, whose permanent work takes place on the way or has a traveling character, during business trips within the areas they serve, as well as the payment of allowances in exchange for daily allowances to seafarers involved from their place of permanent residence to the place of sedimentation courts to carry out repair work, as well as work to ensure the safe winter settling of the fleet in cases where they are unable to return to their place of permanent residence, is carried out in the amount of at least daily travel expenses (Industry agreement on federally funded institutions subordinate to Rosmorrechflot in the areas of inland water transport of the Russian Federation and the formation of the Russian Federation for 2013 - 2016, approved by the Trade Union of Water Transport Workers of the Russian Federation, Rosmorrechflot on 07/04/2013).
In organizations that did not take part in the signing of any agreements and did not accede to them, or which are not subject to regulatory legal acts Russian Federation or constituent entities of the Russian Federation, allowances are established by the employer.
Finally
Summing up, we note that employees whose permanent work is carried out on the road, is traveling or expeditionary in nature, in the field, perform their duties in special conditions. For that labor law they are provided with certain allowances and compensations. But in order to establish specific amounts of compensation, a list of positions of employees with such a mode of operation and forms of documents that allow keeping records of employee trips, the employer develops a separate Regulation independently, taking into account current regulations and industry agreements.
In the Labor Code of the Russian Federation there is no clarification of the concept of “traveling nature of work”. There is also no list of works that have traveling character. However, many businesses have employees who are not office-based or geographic. Registration of such employees should take into account the peculiarities of their work and should not contradict the requirements of the Labor Code.
It is important for the personnel officer that the “travelling” employee does not have a reason to file a complaint with the labor inspectorate if he suddenly suspects an infringement of his rights. For this reason, it is necessary to correctly register the employee, explain to him the nuances of registration and make sure that this employee receives reimbursement of expenses, and also has the required allowances for the traveling nature of the work.
Legal grounds
The first document that the personnel officer must rely on is Article 168.1 of the Labor Code of the Russian Federation. This article relates to chapter 24, which defines guarantees for employees who travel on business trips and also undertake official travel.
Please note that the Labor Code of the Russian Federation has Article 168, which determines the reimbursement of expenses for business trips. Previously, business trips were “closed” just through business trips. However, Article 166 of the Labor Code gives a strict definition of a business trip as the performance of an official assignment outside the place of permanent work for a certain period.
Important
Not within one working day, but within a certain period.
From some point, a contradiction arose between business trips and work that had a permanent traveling character. The controversy arose on the basis of personal income tax and insurance premiums, the amounts of which can be reduced when paying for travel expenses.
To eliminate the contradiction, federal law No. 90 of 06/30/2006 was signed, which introduced Article 168.1 into Chapter 24 of the Labor Code to describe the reimbursement of expenses just during traveling work.
Important
If the employee's work is of a traveling nature, it is impossible to issue reimbursement of expenses for business trips for one day. Tax amounts will be additionally assessed and penalties and fines will be added to them.
Let us return once again to the differences between business trips and the traveling nature of work. If a business trip involves a trip to another territory and a return in a day or more, then traveling work also involves a trip to another territory, but with the possibility of returning home on the same day or with a delay in another territory up to several days.
Stop. But it's practically the same thing, you say, and you'll be right. Legislators also faced this contradiction and, since the Labor Code or any other document did not define the criteria for the traveling nature of work, Rostrud in its letter No. 4209-TZ dated December 12, 2013 identified them. This is the second document that the personnel officer should rely on when applying for employees to work.
Here are the criteria that a personnel officer should keep in mind when applying for an employee to work with a traveling character:
- the traveling nature of the work must be fixed in the employment contract;
- the procedure, as well as the amount of reimbursement of expenses for the itinerant nature of work, should be fixed in the labor (collective) agreement, as well as in the relevant local normative documents;
- the list of jobs and positions associated with traveling nature should be fixed in contracts or local acts and should not have ambiguous interpretations.
The personnel officer should also keep in mind that the traveling nature of work will only take place if the employee’s trips are of a permanent nature, and not one-time or episodic. To what has been said, as a difference between a business trip and a traveling character, it can be noted that a “traveling” worker has the opportunity to return to his place of residence every day.
An example is the work of a forwarding driver or a sales representative in a territory that is located outside the city.
How to register an employee for traveling work
Considering the text of Article 168.1 itself, as well as an impressive commentary to it, there are no restrictions for employers to establish a list of traveling jobs. The Labor Code is loyal, however, the list of jobs and positions must be fixed either in the labor (collective) agreement or in the local regulations of the enterprise. That is, everything must be recorded and sealed with the signatures of the parties.
It is also important that the official registration of "travelling" employees is financially beneficial for both the employee and the employer. Such an employee does not need to arrange trips at each trip (as in the case of business trips) and is paid a salary, and not average earnings. Yes, there are bonuses, but this is a salary.
Do not forget to set the territory during the execution of the employment contract (if necessary, change the route, enter it additional agreement to the employment contract), which will be controlled by the employee. Moreover, it can be established by designating the city, or by indicating the geographical location of the area.
Attention
Since the traveling nature of the work is documented (employment contract, LNA), it is not necessary to issue an order for business trips.
Reimbursement for travel expenses
Naturally, the “travelling” worker is forced in the course of his activity to make the necessary expenses for ensuring 
fulfillment of the task set by the employer. That is, the costs are incurred in the interests of the employer. For this reason, Article 186.1 of the Labor Code introduces guarantees for the reimbursement of these costs at the legislative level.
The list of reimbursable expenses is defined:
- travel expenses;
- housing costs;
- living expenses (per diem or field allowance);
- expenses agreed with the employer to ensure the completion of the task.
The amount and procedure for reimbursement of these expenses should be reflected in the regulatory documents of the enterprise (in an employment contract, agreement or LNA). In addition, the same documents must contain a list of documents confirming the expenses (travel tickets, gasoline write-off certificates when using personal vehicles, hotel payment receipts, etc.).
Separately, pay attention to the development and coordination with employees of reimbursement of expenses when using personal vehicles:
- petrol,
- purchase of spare parts to replace broken ones,
- depreciation.
As a rule, the reimbursement strategy is discussed between the head of the enterprise, a lawyer, an accountant, and then proposed to the employee. And the link is most often the personnel officer, who finally fixes the agreements in the LNA.
Important
The concept of compensation, formulated in Article 164 of the Labor Code, shows that payments aimed at reimbursement of expenses during the traveling nature of work are compensatory.
Travel allowances
When applying for “traveling” employees, it should be borne in mind that their work is associated with conditions that deviate from normal. For example, an employee to get to a far point of the route by the beginning of the partner's working day must leave, for example, at 5 o'clock in the morning. And to return to the place of residence (simply home) will be able only around ten in the evening. Are these normal conditions?
These “other conditions” are described in the Labor Code of the Russian Federation in article 149, which states that for deviation from normal working conditions, the employee must receive appropriate payments, which should not be less than specified in the norms labor law. Paying “not less” means that the employer can independently assign an adequate allowance.
Recall that at one time there was a Decree of the Ministry of Labor of the Russian Federation No. 51 dated June 29, 1994, which determined the amount of the allowance for traveling work. Then, in 2004, it lost its force, and instead of it, Decree of the Ministry of Labor No. 60 of April 26, 2004 was issued.
Since the employer can set allowances based on his own understanding of the complexity of traveling work, the personnel officer is obliged to remind the manager about the taxation of these payments. More payments means more taxes. That is, the amount of the allowance should be balanced between the desire of the administration to thank the employee for difficult working conditions and the desire to minimize taxes.
In the process of applying for a job as a traveling employee, you must:
- determine the amount of the allowance for the nature of the work;
- fix the approved amount of the allowance in contracts or LNA.
To determine the amount of the allowance, you can use the materials of the Decree of the Ministry of Labor No. 51. Although it has lost its force, it is suitable as a guide.
Paragraph 2 of Decree No. 51 states:
- if traveling work was carried out more than 12 days a month, then the allowance is paid in the amount of up to 20% of the monthly tariff rate;
- if traveling work was less than 12 days per month, then the allowance is paid in the amount of up to 15% of the tariff rate.
The figures given are a guideline., however, in each specific case, the employer is free to set his own allowances, so long as they are not lower than the labor code requires.
The organization sells machines own production in several regions. To install and adjust the equipment, the company's specialists travel to the customer's facilities, whose work is traveling. In order to properly organize work with such employees, it is necessary to prepare and approve the Regulations on the traveling nature of work. Sample 2019, prepared by our specialists, will help personnel officers save time.
Travel work is not business trips
Some employees whose work is connected with traveling, for example, drivers, builders, couriers, are assigned the traveling nature of work. Moreover, the travel condition is included in the employment contract with the employee (paragraph 8, part 2, article 57 of the Labor Code of the Russian Federation).
In turn, a business trip is a business trip of an employee related to the performance of an official assignment outside the place of permanent work (Article 166 of the Labor Code of the Russian Federation). A business trip, unlike traveling work, is of a one-time or periodic nature.
Despite the fact that the work of an employee is of a traveling nature, he can be sent on a business trip. Moreover, a one-time trip of an employee, which differs in terms of its conditions from his usual trips, must be issued as a business trip (letter of the Ministry of Finance of Russia dated 06/01/2005 No. -A41/10098-09).
For example, if a company driver who delivers goods to customers located in one region is sent by management to another region, then such a trip is recognized as a business trip.
Organizational moments - in the local act
When accepting an employee for traveling work, you must not forget to indicate the condition on traveling in the employment contract concluded with him.
In addition, a separate local act of the enterprise, for example, an order of the head of the organization, must approve the list of positions in respect of which the traveling nature of work is established.
In order to establish the conditions for traveling work, including a list of traveling work, expenses reimbursed by the employer, the procedure for confirming the production nature of trips, it makes sense to develop and approve a sample Regulation on the traveling nature of work (for drivers, for example).
- travel expenses;
- housing rental expenses (if the employee cannot return home);
- expenses that the employee incurs in connection with living outside the permanent place of residence (per diems);
- other expenses incurred with the permission or knowledge of the employer.
Especially for readers, our specialists have prepared a sample of the Regulations on the traveling nature of work 2019, which can be downloaded for free on the website.
Specialists of GNK Group of Companies told how taxation can be optimized by correctly taking into account the traveling nature of the work of employees.
Recently, the Ministry of Finance of the Russian Federation clarified once again that compensation payments to employees whose work is of a traveling nature are not subject to personal income tax, and that these payments are not charged. insurance premiums. Let's consider the situation in more detail.
Who are Traveling Employees?
The general answer to this question is contained in Art. 168.1 of the Labor Code of the Russian Federation. This rule refers to employees whose permanent work is carried out:
on the road (ex. drivers);
has a traveling character ( inspectors, experts domestic services at the customer's home, couriers, insurance agents);
in the field ( geologists);
in expeditionary conditions ( persons accompanying the goods).
All of them are reimbursed by their employer for travel expenses.
! The legislation does not contain restrictions on the positions of employees for whom the traveling nature of work is established! “As a rule, traveling work is considered to be work in which an employee performs his duties outside the location of the organization,” clarifies federal Service for work and employmentin hisLetter No. 4209-TK dateddated December 12, 2013 No. 4209-ТЗ.
Art. 57 of the Labor Code of the Russian Federation states that the conditions that determine, if necessary, the nature of work (mobile, traveling, on the road, other nature of work) must be contained in employment contract.
Also, the traveling nature of the work can be reflected in the collective agreement (Article 41 of the Labor Code of the Russian Federation).
The document flow for the traveling nature of the work, the employer develops and approves independently. Based on this, GNK GK recommends the organization to develop:
a list of positions, professions and works of persons whose permanent work is carried out on the road, has a traveling or expeditionary character;
local regulation (eg. Regulations on traveling nature of work , in which it will be necessary to define the concept of traveling work, establish compensation payments, determine the forms of documents that will confirm the trips, as well as the procedure for making settlements with the employee. This document is approved and put into effect by order employer).
! If the employee's work is traveling in nature, then such trips are not recognized as business trips (part 1, article 166 of the Labor Code of the Russian Federation). Missions are temporary andtraveling work - permanent. Respectively,"Travel" standards for the traveling nature of the work do not apply. (Letter of the Ministry of Finance dated February 15, 2017 No. 03-04-06 / 8562).
What expenses can be reimbursed and how much exactly?
Compensation is considered cash payments, established for the purpose of reimbursement to employees of costs associated with the performance by them of labor or other duties provided for by the Labor Code of the Russian Federation and other federal laws(Article 164 of the Labor Code of the Russian Federation). This includes:
No insurance premiums and personal income tax
Employee compensation for traveling nature of work is not accrued, since such payments are not recognized as an object of taxation of insurance premiums(See Letter No. 03-04-06/23538 of the Tax and Customs Policy Department of the Ministry of Finance of Russia dated April 19, 2017).
“Based on the provisions of par. 10 pp. 2 p. 1 art. 422 Tax Code of the Russian Federation not subject to insurance premiums all types established by the legislation of the Russian Federation , legislative acts of the constituent entities of the Russian Federation, decisions of representative bodies local government compensation payments (within the limits established in accordance with the legislation of the Russian Federation), related, in particular, to the fulfillment by an individual job duties».
The compensation payments we are talking about are established by the Labor Code of the Russian Federation - Art. Art. 164 and 168.1.
If work individuals according to his position is traveling in nature, and this is reflected in the employment contract, local regulations, then payments aimed at reimbursement by the employer of expenses related to business trips of such categories of employees are not subject to insurance premiums in the amounts established by local regulations or an employment contract, - the employees of the Department draw conclusions.
The same situation is with personal income tax (see the Letter dated April 19, 2017, already mentioned above): on the basis of paragraph 3 of Art. 217 of the Tax Code of the Russian Federation, compensations for employees with a traveling nature of work are not subject to taxation, provided that the amounts of these compensations are also set properly - on the basis, as already mentioned, of a collective or labor agreement, agreement, local regulatory act of the company).
Sometimes officials consider traveling compensation to be part of the wages referring to the definition of wages given in Art. 129 of the Labor Code of the Russian Federation. Based on the results of such inspections, employers are charged fines, penalties and additional contributions. Such decisions are challenged in the courts, while the latter take the side of the employer -compensation for business expensesis not wages.
Saving in practice
A company involved in the installation and maintenance of telecommunications equipment on the territory of customers applied to GNK GK with a task to analyze the composition of expenses for core activities in order to optimize the tax burden. The company had a large share of expenses that were not taken into account when calculating income tax.
It should be noted that the maintenance of the equipment on the territory of the client was carried out by specialists technical support, and the company's clients are located both in Russia and abroad.
An analysis of employment contracts concluded with technical support specialists showed that they contain the following:
the employee performs a labor function outside the location of the Employer (remotely);
the work of the Employee in its content has a traveling character, which is necessary for the Employee to fulfill his labor duties in the Russian Federation and abroad;
In addition to the official salary, the Employer pays the Employee a monthly allowance for the traveling nature of the work.
The total amount of compensation to employees was approximately 450,000 rubles. monthly, the amount of insurance premiums is about 140,000 rubles. Wherein domestic situation the company did not have any information about traveling work. And precisely because of the absence of such a document, the compensation established by the employment contract, in fact, was not such, but was part of wages(Article 129 of the Labor Code of the Russian Federation), and it could not be excluded from the base for calculating personal income tax and insurance premiums.
Specialists of the GNK Group recommended that the company develop and approve a regulation on traveling work, which describes the size and procedure for paying compensation amounts to employees. At the same time, the payment procedure should provide for reimbursement of expenses only on the basis of supporting documents.
As a result of these actions, the company's monthly savings amounted to:
140 000 rub. on insurance premiums;
58 500 rub. on personal income tax.
CONCLUSION: in order to optimize the taxation of the enterprise, if it is necessary to pay employees for the traveling nature of the work, the GNK Group recommends that expenses be recorded as compensation and not as allowances for special working conditions. This is possible under the following conditions:
establishing the traveling nature of the work of the employee (employment contract/collective agreement, as well as the company’s local regulatory act, for example, the Order of the head on approval of the List of positions of employees whose permanent work is traveling in nature);
establishing the amount of compensation payments for the traveling nature of the work, order making such payments, forms of supporting documents (for example, the Regulation on the traveling nature of work, also approved by the Order of the head of the enterprise).
carry out reimbursement of expenses strictly on the basis of supporting documents determined by the local regulations of the enterprise, for example, the above-mentioned Regulations.
The payment of per diems is conditioned by the employee's residence outside the place of permanent residence for more than 24 hours (decision of the Supreme Court of the Russian Federation dated 04.03.2005 N GKPI05-147).
The traveling nature of work in the Russian labor legislation is rather poorly disclosed. At the same time, in practice, employers often have to conclude employment contracts with such a condition. How not to violate the rights of the employee and what nuances to take into account, we will tell in the article.
What is the traveling nature of work?
The traveling nature of work (Labor Code of the Russian Federation) is the implementation by a full-time employee of an organization of his labor function not at a stationary workplace or not on the territory of the employer. However, at the same time, constant movement to objects located at a considerable distance from the location of the company should leave the employee the opportunity to return to the place of residence daily.
The Labor Code of the Russian Federation does not contain a special article answering the question: what is the traveling nature of work, what does this mean, can be understood from some departmental regulations and clarifications of Rostrud. In particular, it is necessary to differentiate such activities from:
- business trips;
- activities carried out along the way;
- activities that are mobile.
From the first point, such conditions of activity are distinguished by regular business trips only within the service area (areas) with the possibility of returning home daily. Rostrud recalled that business trips of employees with traveling activities cannot be recognized as business trips due to article 66 of the Labor Code of the Russian Federation. In a letter dated 12.12.2013 N 4209-TZV, officials indicated that business trips are temporary and limited to a certain period, but travel-related activities should be permanent.
With regard to the mobile nature of work, the Regulation on the payment of allowances associated with mobile and traveling nature in construction (approved by the Decree of the USSR State Committee for Labor and the Secretariat of the All-Union Central Council of Trade Unions dated 06/01/1989 N 169 / 10-87) says that if workers perform work on objects located at a considerable distance from the permanent location of their enterprise, and actually live near these objects until the end of work processes on them, and then they move to another object, then it is a mobile or shift method. It can be geologists, builders, installers, pipelayers and so on.
It is also important to properly differentiate work on the go. It is carried out by employees involved in the process of movement of the vehicle. In particular, these are:
- flight attendants;
- conductors;
- conductors in public transport;
- public transport drivers;
- sailors;
- etc.
How to arrange traveling nature of work
The right to determine and approve the list of positions that will work outside the location of the company is granted by labor legislation to the management of the employing organization. To do this, you can approve a separate provision, or you can simply approve such functions in staffing on the basis of an order. After all, there is no special article in the Labor Code of the Russian Federation regulating such a procedure. The main thing is to comply article 57 of the Labor Code of the Russian Federation, namely: to fix in the text of the employment contract of the employee during his employment the conditions that determine how exactly he will work. And if the mode of his activity will be established outside the firm, then this must be stated in the contract.
In the event that during employment the traveling nature of a person’s activity is indicated, the employer may not equip a stationary workplace. Therefore, it is desirable to register this also in the collective agreement, but this has its own difficulties. After all, making changes to the collective agreement requires compliance with a certain procedure, if such issues were not specified during its initial signing. The most complete way to reflect this order of execution labor functions in a special position, which can be changed based on the needs of the organization. The very list of positions of employees who will be on the road can be approved by a separate order of the head, and in the regulation it is detailed to prescribe the procedure for reimbursing such employees for their expenses and establish forms of documents that allow keeping records. A sample provision on the traveling nature of work (2017) might look something like this:
A particularly important condition is the consolidation in the position of the list of jobs, professions, positions that have such an order of activity. Such a requirement is expressly enshrined in Part 2 Article 168.1 of the Labor Code of the Russian Federation.
These are just some of the provisions of the document, the full version of which can be downloaded at the end of the article.
Be sure to indicate the sidings in job descriptions or other documents defining the circle official duties workers. Both orders and position, much less job descriptions must be communicated to all interested persons under signature, as defined in article 68 of the Labor Code of the Russian Federation. Detailed fixation of the conditions of activity in local regulations minimizes the risk of disputes between employees and employers, and if they do arise, it will make it possible to quickly resolve them in favor of the employer within the framework of the legally enshrined norms for business trips.
For whom this work is suitable, and for whom it is not
I must say that almost all citizens can work without a stationary workplace if they agree to this and have signed an employment contract. After all, the functions that they can perform outside the location of the organization can be any: for example, a courier can deliver goods, and a sales representative can conclude cooperation agreements. Therefore, even teenagers and women can work under such conditions. There are no special conditions in this regard in the legislation.
How to conclude a contract
There are two types of conditions to be included in an employment contract:
- Mandatory.
- Additional.
The condition of the traveling nature of the work is mandatory. Therefore, Part 2 of Article 57 of the Labor Code of the Russian Federation directly indicates that the contract must necessarily contain an indication of the traveling nature of the work, if it is provided by the employer for this position. It is desirable to clearly state in the contract the territory within which the work will be considered traveling. It could be the city itself or municipality where the company is located and the area around. And although the employee should be able to return home daily, the law does not prohibit the establishment of such a territory within the entire Russian Federation. Moreover, the legislation makes it possible not to indicate such a territory in the contract at all, however, its indication will protect the employer from recognizing a business trip as a business trip in case of questions from the inspection authorities, for example, to reimbursement of expenses. The wording of an employment contract might look something like this:
The employee is established the traveling nature of work with the territory of the sidings - the city of Moscow and the Moscow region.
It is necessary to register this in the section "Subject of the contract":
The full version of the employment contract for filling out can be downloaded at the end of the article.
In addition, it is desirable for the employer to keep a special travel log or route sheets. These documents will allow you to quickly control all official movements of employees and confirm their expediency in the event of an audit.
The procedure for accounting for traveling work and compensation to employees
To avoid possible misunderstandings, it is best to prescribe the amount and procedure for reimbursement of employees' expenses directly in the regulation or other internal regulations. Since in this case the employer does not have to issue travel documents and pay daily allowances, he must correctly take into account the hours worked. For these purposes, a regular time sheet can be used. In it, periods of business trips must be noted as working hours. Indeed, usually such employees receive the usual official salary, as well as additional payments, if they are established by the employment contract (part 1 Art. 129 of the Labor Code of the Russian Federation, Art. 149 of the Labor Code of the Russian Federation). In addition, by virtue of Article 168.1 of the Labor Code of the Russian Federation, the company is obliged to compensate for the many expenses of such employees:
- along the way;
- accommodation;
- food and other needs agreed with the employer.
All expenses must be documented (checks, receipts, tickets, etc.), but there are no clear requirements for this in the NLA. Therefore, a simplified travel reporting procedure could be established for such employees. For example, it could be a report once a week or even a month.
In addition to reimbursement of the employee's expenses, the legislation does not provide for other compensations for the traveling nature of the work. At the same time, compensated expenses are not subject to personal income tax and insurance premiums.
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