The conclusion of an employment contract is allowed with persons who have reached the age of sixteen years.
In cases of receiving general education, or continuing to master the basic general education program general education in a form of education other than full-time, or leaving, in accordance with the federal law of a general education institution, an employment contract may be concluded by persons who have reached the age of fifteen to perform light labor not harmful to their health.
(as amended by Federal Laws No. 90-FZ of 30.06.2006, No. 194-FZ of 21.07.2007, No. 309-FZ of 01.12.2007)
With the consent of one of the parents (trustee) and the body of guardianship and guardianship, an employment contract may be concluded with a student who has reached the age of fourteen years, to perform light work in his free time from school that does not harm his health and does not violate the learning process.
In cinematography organizations, theaters, theater and concert organizations, circuses, it is allowed, with the consent of one of the parents (guardian) and the permission of the guardianship and guardianship authority, to conclude an employment contract with persons under the age of fourteen years to participate in the creation and (or) performance (exhibition ) works without prejudice to health and moral development. The employment contract on behalf of the employee in this case is signed by his parent (guardian). The permission of the body of guardianship and guardianship indicates the maximum allowable duration daily work and other conditions under which the work may be performed.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
Article 64. Guarantees when concluding an employment contract
An unreasonable refusal to conclude an employment contract is prohibited.
Any direct or indirect restriction of rights or the establishment of direct or indirect advantages when concluding an employment contract depending on gender, race, skin color, nationality, language, origin, property, social and official position, age, place of residence (including the presence or absence of registration at the place of residence or stay), as well as other circumstances not related to business qualities employees, is not allowed, except in cases provided for by federal law.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
It is forbidden to refuse to conclude an employment contract for women for reasons related to pregnancy or the presence of children.
It is forbidden to refuse to conclude an employment contract for employees invited in writing to work by transfer from another employer within one month from the date of dismissal from their previous place of work.
At the request of the person who was refused to conclude an employment contract, the employer is obliged to inform the reason for the refusal in writing.
Refusal to conclude an employment contract may be appealed in court.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
Article 64.1. Conditions for concluding an employment contract with former state and municipal employees
(as amended by Federal Law No. 329-FZ of November 21, 2011)
Citizens who have held public office or municipal service, the list of which is established by regulatory legal acts Russian Federation, within two years after dismissal from the state or municipal service, have the right to fill positions in organizations if certain functions government controlled these organizations were part of the official (service) duties of a state or municipal employee, only with the consent of the relevant commission for compliance with the requirements for official conduct of state or municipal employees and the settlement of conflicts of interest, which is given in the manner established by the regulatory legal acts of the Russian Federation.
Citizens who have held positions in the state or municipal service, the list of which is established by the regulatory legal acts of the Russian Federation, within two years after their dismissal from the state or municipal service, are obliged, when concluding employment contracts, to inform the employer of information about the last place of service.
The employer, when concluding an employment contract with citizens who have filled positions in the state or municipal service, the list of which is established by the regulatory legal acts of the Russian Federation, within two years after their dismissal from the state or municipal service, is obliged to report the conclusion of such an agreement to the representative of the employer (employer) within ten days state or municipal employee last place his service in the manner established by the regulatory legal acts of the Russian Federation.
Article 65. Documents presented at the conclusion of an employment contract
When concluding an employment contract, a person entering a job presents to the employer:
passport or other identity document;
work book, with the exception of cases when the employment contract is concluded for the first time or the employee goes to work on a part-time basis;
insurance certificate of state pension insurance;
military registration documents - for those liable for military service and persons subject to conscription for military service;
a document on education, qualifications or the availability of special knowledge - when applying for a job that requires special knowledge or special training;
a certificate of the presence (absence) of a criminal record and (or) the fact of criminal prosecution or the termination of criminal prosecution on rehabilitating grounds, issued in the manner and in the form that are established federal agency executive power who performs the functions of developing and implementing state policy and legal regulation in the field of internal affairs - when applying for a job related to activities to which, in accordance with this Code, other federal law, persons who have or had a criminal record are not allowed, who are or have been prosecuted.
(paragraph introduced by Federal Law No. 387-FZ of December 23, 2010)
In some cases, taking into account the specifics of work, this Code, other federal laws, decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation may provide for the need to present additional documents when concluding an employment contract.
It is prohibited to demand from a person applying for a job documents other than those provided for by this Code, other federal laws, decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation.
When concluding an employment contract for the first time, a work book and an insurance certificate of state pension insurance are drawn up by the employer.
If a person applying for a job does not have a work book due to its loss, damage or for any other reason, the employer is obliged, upon a written application of this person (indicating the reason for the absence of a work book), to issue a new work book.
(Part five was introduced by Federal Law No. 90-FZ of June 30, 2006)
Article 66
The work book of the established form is the main document on labor activity and work experience of the employee.
The form, procedure for maintaining and storing work books, as well as the procedure for preparing blank work books and providing employers with them, are established by the federal executive body authorized by the Government of the Russian Federation.
(as amended by Federal Law No. 160-FZ of July 23, 2008)
The employer (with the exception of employers who are natural persons who are not individual entrepreneurs) keeps work books for each employee who has worked for him for more than five days, in the event that the work this employer is essential for the worker.
The work book contains information about the employee, the work performed by him, transfers to another permanent job and on the dismissal of the employee, as well as the grounds for termination of the employment contract and information on awards for success in work. Information about penalties in the work book is not entered, except in cases where dismissal is a disciplinary sanction.
At the request of the employee, information about part-time work is entered in the work book at the place of main work on the basis of a document confirming part-time work.
Part six is no longer valid. - Federal Law of June 30, 2006 N 90-FZ.
Article 67. Form of an employment contract
The employment contract is concluded in writing, drawn up in two copies, each of which is signed by the parties. One copy of the employment contract is transferred to the employee, the other is kept by the employer. The receipt by the employee of a copy of the employment contract must be confirmed by the signature of the employee on the copy of the employment contract kept by the employer.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
An employment contract that is not executed in writing is considered concluded if the employee has started work with the knowledge or on behalf of the employer or his representative. When the employee is actually admitted to work, the employer is obliged to draw up an employment contract with him in writing no later than three working days from the date the employee was actually admitted to work.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
When concluding employment contracts with certain categories of employees labor law and other normative legal acts containing norms labor law, it may be necessary to agree on the possibility of concluding employment contracts or their conditions with the relevant persons or bodies that are not employers under these contracts, or to draw up employment contracts in more copies.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
Article 68
Employment is formalized by the order (instruction) of the employer, issued on the basis of the concluded employment contract. The content of the order (instruction) of the employer must comply with the terms of the concluded employment contract.
The order (instruction) of the employer on employment is announced to the employee against signature within three days from the date of the actual start of work. At the request of the employee, the employer is obliged to issue him a duly certified copy of the said order (instruction).
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
When hiring (before signing an employment contract), the employer is obliged to familiarize the employee against signature with the rules of internal work schedule, other local regulations directly related to the labor activity of the employee, collective agreement.
(Part three as amended by Federal Law No. 90-FZ of June 30, 2006)
Article 69. Medical examination (examination) at the conclusion of an employment contract
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
Mandatory preliminary medical examination (examination) at the conclusion of an employment contract is subject to persons under the age of eighteen years, as well as other persons in cases provided for by this Code and other federal laws.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
Article 70
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
When concluding an employment contract, it may, by agreement of the parties, provide for a condition on testing the employee in order to verify his compliance with the assigned work.
The absence of a test clause in the employment contract means that the employee is hired without a test. In the case when an employee is actually allowed to work without drawing up an employment contract (part two of Article 67 of this Code), a test condition can be included in the employment contract only if the parties have drawn it up in the form of a separate agreement before starting work.
During the probation period, the employee is subject to the provisions of labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations.
A test for employment is not established for:
persons elected on the basis of a competition for the corresponding position held in accordance with the procedure established by labor legislation and other regulatory legal acts containing labor law norms;
pregnant women and women with children under the age of one and a half years;
persons under the age of eighteen;
persons graduating with state accreditation educational institutions primary, secondary and higher vocational education and for the first time entering work in the acquired specialty within one year from the date of graduation from the educational institution;
persons elected to elective office for paid work;
persons invited to work in the order of transfer from another employer as agreed between employers;
persons concluding an employment contract for a period of up to two months;
other persons in cases stipulated by this Code, other federal laws, collective agreement.
The trial period cannot exceed three months, and for the heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions organizations - six months, unless otherwise provided by federal law.
When concluding an employment contract for a period of two to six months, the probation may not exceed two weeks.
The period of temporary disability of the employee and other periods when he was actually absent from work are not included in the probationary period.
Article 71
In case of an unsatisfactory test result, the employer has the right to terminate the employment contract with the employee before the expiration of the test period, notifying him in writing no later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as not having passed the test. The employee has the right to appeal against the decision of the employer in court.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
If the test result is unsatisfactory, the termination of the employment contract is made without taking into account the opinion of the relevant trade union body and without paying severance pay.
If the probation period has expired, and the employee continues to work, then he is considered to have passed the probation and the subsequent termination of the employment contract is allowed only on a general basis.
If during the probation period the employee comes to the conclusion that the job offered to him is not suitable for him, he has the right to terminate the employment contract by own will by notifying the employer in writing three days in advance.
The conclusion of an employment contract is a prerequisite for hiring an employee. It regulates the relationship between the two sides of labor relations: the employee and the employer. The Labor Code of the Russian Federation fully regulates the preparation and signing of this document.
General procedure for concluding an employment contract
An employment contract is signed after the employee and employer reach an agreement on working conditions. Typically, each employer has its own approved form contract with the required information.
Before signing the contract, the employee must be familiarized with all local regulatory documents related to his work.
The agreement will enter into force only after the appearance of both signatures.
The procedure for signing the contract is not established, so there is no difference who signs first, the employee or the employer.
The contract is drawn up in writing, in two copies, which have the same legal force. One copy remains with the employer, the other is handed to the employee, it is advisable to do this against a signature.
The actual admission of a person to work is equivalent to signing an employment contract, but does not relieve the employer of the obligation to draw up a contract in writing.
The procedure, conditions and terms for concluding an employment contract
The conclusion of an employment contract must take into account the rules provided for by the Labor Code of the Russian Federation.
Timing
There are no specific terms for the conclusion of the contract in the legislation. Usually it is signed on the first day when the employee begins to perform his duties. But it can be drawn up and signed before this date.
The only limitation that the legislation makes is the term for the actual signing of the contract if the employee was allowed to work earlier. The employer is obliged to sign a contract with such an employee no later than three days later.
Foundations
Usually the basis for concluding an employment contract is. But usually this is preceded by an oral agreement between the employee and the employer on employment.
Also, other documents, for example, a resolution on election to a position, can serve as the basis.
In the Labor Code of the Russian Federation, there is no indication that the conclusion of an employment contract should be preceded by any other document. The very fact of signing the contract by both parties indicates that the employer accepted the employee, who, in turn, agreed to perform work on the established conditions.
Terms
Contains a list of working conditions that must be reflected in the employment contract.
Read also: Collective labor contract: concept and procedure for concluding
Mandatory conditions:
- Place of work, if its actual address differs from the legal one, then its indication is mandatory.
- The date when the employee starts work and the date the contract ends (only if it is urgent).
- Schedule. Article 57 says that it is indicated only if it is established for the employee, but it is better to include it in the text of the contract in any case.
- labor function. This is the main condition, it determines what kind of work the employee must perform and it will be illegal to demand another from him. Another nuance is that the Labor Code of the Russian Federation does not require you to indicate exactly the position, you can only make a record of the labor function.
- Accrual procedure wages. It is better to describe this information in detail in the employment contract, and not to make a reference to the Regulation on remuneration.
- Working conditions according to the results of certification.
- Other mandatory conditions: nature of work, availability harmful conditions and compensation for them, etc.
In addition, the employment contract can include other conditions permitted by the RF Labor Code (additional insurance, etc.), or established by the employer, but on condition that they do not worsen the position of the employee.
Peculiarities
An employment contract may have the following features:
- Be the main contract or . Moreover, part-time work can be both external and internal.
All these conditions must be specified in the contract in without fail.
Documents to be presented at the conclusion of an employment contract
The documents that the employer has the right to require from the employee are listed in article 65 of the Labor Code of the Russian Federation. These include:
- Passport or other proof of identity.
- SNILS, if an employee enters work for the first time, the obligation to issue it lies with the employer.
- Military ID, for persons who belong to the category of persons liable for military service.
- A diploma or other document confirming the availability of special skills, provided that they are required to perform the job.
- Other documents confirming the employee's ability to work in the position (certificate of no criminal record, disqualification, medical report, etc.).
- Employment record, if available. If it is lost or the employee is employed for the first time, the employer draws it up.
Of all the listed documents, only data from the passport is transferred to the employment contract, but nevertheless, the employer may refuse to conclude an agreement with the employee (that is, not hire him) if he does not have other necessary documents.
Demand separate documents possible, if necessary. For example, you cannot require a medical certificate from an employee whose position does not require a medical certificate or a diploma of economic education for a cleaner.
Documents drawn up at the conclusion of an employment contract
When a person is hired, they draw up not only an employment contract, but also several other documents.
Read also: Conclusion of an employment contract with an individual entrepreneur in 2020
Order
On the basis of a signed employment contract, an order for employment is drawn up. Usually used for this unified form T-1.
On the basis of the order, an entry is made in the work book and the T-2 card. A copy of the order is sent to the accounting department and other departments (to the immediate supervisor of the employee, timekeeper, etc.).
Notification
The notification is drawn up if a foreigner is hired. This is a document of the established form, by which the employer informs the migration service, within the period established by law.
Reconclusion
There is no such thing as a renegotiation in the Labor Code of the Russian Federation. It can be used in the following case: the law says that if there is no mandatory information in the signed contract, then they must be included directly in the text of the contract. How to do this is not said, so many employers simply renew the contract. But there are those who enter the missing information by hand.
Mandatory information includes:
- full name of the employer and his representative;
- full name of the employee;
- place and date of compilation;
- data of the employee's passport;
Usually this information is supplemented by the address of registration and the date of birth of the employee.
What can not be a reason for refusal to conclude an employment contract?
The conclusion and content of an employment contract should not depend on race, religion, gender, place of residence and other conditions that may be discriminatory.
It is also impossible to refuse to hire a woman because of pregnancy or the presence of children.
What to do in case of refusal to conclude an employment contract?
If the employer refuses to conclude the contract, then the person may require that the reasons for the refusal be stated in writing.
The employer is obliged to provide such a document within 7 days.
If there is reason that these reasons are illegal, then the refusal can be appealed in court.
Is it possible to conclude an employment contract in advance
The Labor Code of the Russian Federation does not prohibit concluding employment contracts in advance, for example, if an employee is still working for another employer, you can conclude an employment contract in which you indicate the start date of work after the dismissal. Such an agreement serves as a guarantee of new employment for the employee.
An employment contract is a document that contains information and conditions. Information is information about the parties concluding an agreement, conditions - the rights, obligations of those between whom this agreement is concluded. This agreement is drawn up in several copies, in writing.
Employment contract: mandatory or not
Is an employment contract required? In cases where it is important for an employee to have a length of service, its continuity, in order to determine the amount of a subsequent pension, an employment contract is mandatory. An employment contract is a certain guarantee for the employee and the employer. When concluding this agreement between individuals, the employee submits his work book at the place of work, to the employer. Except, of course, those cases when he is a part-time worker.
The advantages of an employment contract over other types of contracts for the provision of certain services or work.
The conditions described in the employment contract stipulate the terms of the contract, the internal regulations with which the employee must be familiarized, the amount of his salary and the obligations of the persons concluding this contract. For the most part, a typical employment contract is concluded, the template of which is provided in labor legislation. According to labor legislation, the employer himself deducts the amount of all necessary taxes from the salary of the employee and pays them within the time limits established by law. According to civil legal contract such a condition is not mandatory.
Termination of the employment contract
Termination of an employment contract at the initiative of the employer is possible only in strictly listed cases, a list of which is contained in the Labor Code.
To conclude an employment contract or not
Is it necessary to sign an employment contract? If you want to protect yourself from unexpected dismissal and secure a decent pension, then yes. If possible, demand from the employer that an employment contract be concluded with you in accordance with applicable law. Carefully read all of its points, consult with a lawyer. But remember! An employment contract is your guarantee and your safety.
The State Labor Inspectorate in Mari El answers the questions of citizens about getting a job.
What responsibility is provided for the employer if employees work without an employment contract and receive wages unofficially?
Labor relations arise between an employee and an employer on the basis of an employment contract concluded in accordance with the Labor Code of the Russian Federation (Article 16 of the Labor Code of the Russian Federation).
In addition to the obligation to draw up an employment contract (part 2 of article 67 of the Labor Code of the Russian Federation), the employer must perform a number of actions:
issue an order for employment (Article 68 of the Labor Code of the Russian Federation);
fill out a work book for an employee (Article 66 of the Labor Code of the Russian Federation);
hold a preliminary medical checkup when concluding an employment contract in cases provided for by labor legislation (Article 69 of the Labor Code of the Russian Federation);
conduct a briefing on labor protection (part 2 of article 212 of the Labor Code of the Russian Federation);
perform other actions provided for by labor legislation.
In the informal employment of a citizen, the employer does not perform all these actions.
Moreover, an employee who is employed informally is deprived of all those labor rights that the employer must provide him in the course of implementation labor relations, for example, the right to annual paid leave, to benefits for temporary disability and in connection with maternity, and others.
Failure to perform each of these actions is a separate administrative offense, for which a separate punishment is provided (Article 4.4 of the Code of Administrative Offenses of the Russian Federation).
In accordance with Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, violation of the legislation on labor and labor protection entails the imposition of an administrative fine on officials in the amount of 1,000 to 5,000 rubles; on persons carrying out entrepreneurial activity without forming a legal entity - from 1000 to 5000 rubles. or administrative suspension of activities for up to 90 days; for legal entities - from 30,000 to 50,000 rubles. or administrative suspension of activities for up to 90 days. According to part 2 of this article, the same violation committed official previously subjected to administrative punishment for a similar offense, entails disqualification for a period of 1 to 3 years.
Note that if the employer is held liable under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, both the head and the entity(Part 3, Article 2.1 of the Code of Administrative Offenses of the Russian Federation).
In case of application of the disqualification provided for in Part 2 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, it must be taken into account that a similar offense referred to in this norm should be understood as the commission by an official of the same, and not any violation of labor and labor protection legislation (clause 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2005 No. 5 "On some issues arising from the courts in the application of the Code of the Russian Federation on Administrative Offenses", hereinafter - Resolution of the Plenum of the RF Armed Forces No. 5).
In case of committing administrative offense, expressed in the form of inaction, the period for bringing to administrative responsibility is calculated from the day following the last day of the period provided for the performance of the relevant duty (clause 14 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 5).
The term for bringing to administrative responsibility for each offense is calculated separately depending on the time of its commission (the time of non-fulfillment of one or another obligation of the employer).
Thus, in case of non-registration of labor relations, the employer is held liable not once - for the failure to formalize labor relations, but several times - depending on the number of unfulfilled duties provided for by labor legislation and the time of their non-fulfillment.
Moreover, if labor relations are not formalized, wages, which are the main component of the tax base for personal income tax (Articles 209, 210 of the Tax Code of the Russian Federation), as well as the basis for calculating mandatory insurance premiums (Article 8 of the Federal Law of July 24, 2009 No. 212-FZ "On insurance contributions to the Pension Fund of the Russian Federation, the Fund social insurance Russian Federation, federal fund compulsory health insurance”) is paid unofficially.
In this case, the payment of personal income tax and insurance premiums does not occur, for which the employer may also be held liable.
Firstly, the tax authority may require personal income tax to be withheld from employees receiving “black” wages, and may also impose a fine on the employer in the amount of 20% of the amount that should have been withheld from employees or paid to the budget (Article 123 of the Tax Code of the Russian Federation ).
Secondly, off-budget funds may also be required to pay insurance premiums and impose a fine in the amount of 20% of the unpaid amount of contributions or 40% in the case of the intentional commission of this offense (Article 47 of Law No. 212-FZ).
Thirdly, Art. 199.1 of the Criminal Code of the Russian Federation provides for criminal liability for failure to fulfill the duties of a tax agent in personal interests on a large or especially large scale.
Why is labor activity dangerous for an employee without a properly executed written employment contract?
Today, the practice of labor activity without registration of labor relations between the employee and the employer has become more relevant. Under such conditions, the employee, as a rule, receives a higher salary “in an envelope” than with official employment, and the employer, thereby, relieves himself of the obligation to pay mandatory payments, taxes, fees, including the payment of pension contributions and contributions to social insurance fund.
At first glance, it may seem that both parties benefit, but this is far from being the case.
First of all, labor activity without execution of an employment contract is a violation of the requirements of labor legislation (Chapter 11 Labor Code Russian Federation), entailing a violation of the rights of workers.
Labor activity without an employment contract, in fact, makes him defenseless against the employer in case of violation of his labor rights. In such cases, before protecting the specific violated right of the employee, it is necessary to prove the very fact of the existence of an employment relationship between the employee and the employer, which is extremely difficult to do in the absence of an employment contract. The problem here may be that the employer may claim either that this worker he never worked for him (especially if there are no witnesses to your work activity), or he worked, but not under an employment contract, but under a civil law contract (for example, under a work contract).
In case of non-payment of wages, unreasonable imposition disciplinary action, dismissal or other violation of the labor rights of an employee working without an employment contract, it is possible to protect his rights only after the very fact of the existence of an employment relationship has been established. On the one hand, this fact can be confirmed by the employer himself, and in case of refusal - only in court.
In addition to the above to negative consequences employment without an employment contract includes infringement of the employee's pension rights. When carrying out labor activities without a contract, the employer, in violation of the requirements of Art. 14 of the Federal Law of 15. 12. 2001 No. 167 - FZ "On Compulsory Pension Insurance in the Russian Federation" does not transfer insurance contributions to the Pension Fund of the Russian Federation for the formation of settlement capital, the amount of which will determine the size of the employee's pension in the future.
Labor activity without an employment contract creates obstacles to the protection of the employee's labor rights in case of their violation, and also infringes on the pension rights of employees. Thus, an employment contract is an integral part of labor relations, it is a guarantee of the protection of the labor rights of citizens. Labor law norms apply only to employees who are in labor relations with employers who have concluded written employment contracts.
If as a result of an accident at work there is a loss of ability to work, damage to the health of an employee, or the death of an employee who is in an employment relationship, then the employee or his relatives are entitled to the following types of insurance coverage:
1) temporary disability allowance for its entire period until the employee recovers or until a permanent loss of professional ability to work is established - in the amount of 100 percent of the employee's average monthly earnings, but not more than 261,320 rubles per month in 2015 (273,080 rubles - in 2016 and 284,000 rubles - in 2017).
The allowance is paid at the place of work of the victim;
2) one-time and monthly insurance payments:
An employee, if, according to the conclusion of an institution of medical and social expertise, as a result of an accident at work, he has lost his professional ability to work,
Persons eligible to receive such payment (disabled dependents, children, parents, etc. - see Legal rationale) if the accident resulted in the death of an employee.
In the absence of written employment contracts, these guarantees and compensations for workers injured during the performance of work are not provided.
Working in the conditions of the “gray scheme of labor relations”, the employee remains completely unprotected in his relationship with the employer; he is not able to defend and protect his rights and legitimate interests in the event that they are violated or otherwise infringed by the employer. It is very difficult to prove the fact of labor relations in court, because this requires evidence, however, not always the employees of the organization agree to testify in court against their own employer.
Without hiring an employee in the manner prescribed by law, the employer deprives him of his well-deserved pension provision. The period of work without registration in in due course labor relations will not be included in the length of service, which will lead to a low pension in the future.
The employee will not be entitled to temporary disability benefits in the event of an accident at work and occupational disease, unemployment benefits, the right to receive annual paid leave, social guarantees provided for by the collective agreement and local regulations in force with the employer
In Art. 64 of the Labor Code of the Russian Federation provides for guarantees of the rights of employees when concluding an employment contract, one of the fundamental of which is the prohibition on unreasonable refusal to conclude an employment contract. Moreover, if you were refused, you have the right to demand from the employer in writing to inform the reasons for the refusal to conclude an employment contract. Article 64 of the Labor Code of the Russian Federation also provides for the right of an employee to appeal such a refusal to the court.
In accordance with Art. 67 of the Labor Code of the Russian Federation, an employment contract is concluded in writing, drawn up in two copies, each of which is signed by the parties. One copy of the employment contract is transferred to the employee, the other is kept by the employer. The receipt by the employee of a copy of the employment contract must be confirmed by the signature of the employee on the copy of the employment contract kept by the employer. An employment contract that is not executed in writing is considered concluded if the employee has started work with the knowledge or on behalf of the employer or his representative. When the employee is actually admitted to work, the employer is obliged to draw up an employment contract with him in writing no later than three working days from the date the employee was actually admitted to work.
Accordingly, an employer who has not concluded an employment contract with an employee in a timely manner, if such a fact is revealed, will be held liable in accordance with the legislation of the Russian Federation.
Instead of employment contracts, the employer concludes and periodically renegotiates contracts for work or services. Is it legal?
No, it's illegal. The conclusion of civil law contracts (they also include a work contract and a contract for the provision of services), which actually regulate labor relations between an employee and an employer, is not allowed.
If an organization or individual entrepreneur entered into an agreement with a citizen, according to which:
A citizen personally performs work in a certain position or specialty,
The volume of this work is not predetermined (that is, during the term of the contract, the same work is performed in the volume, the need for which arises in the course of work, and which corresponds to the position / specialty of a citizen),
A citizen is subject to the internal labor regulations of an organization or entrepreneur,
then an employment relationship arises between the parties, and an employment contract must be concluded.
If an organization or an individual entrepreneur (customer) has concluded an agreement with a citizen, according to which:
The citizen undertook to perform only a certain type and amount of work (for example, to produce a certain number of some items),
The customer has agreed to pay only for this amount of work performed,
The customer cannot entrust another work or work in a different volume under this agreement to a citizen,
A citizen works at his own risk and does not obey the rules of the internal labor regulations of the customer,
then civil law relations arise between the parties, and a civil law contract (for example, a contract or paid services) must be concluded.
If you believe that the employer has unlawfully entered into a civil law contract with you instead of an employment contract, then you can apply in writing to the employer to recognize the relationship that arose on the basis of a civil law contract as an employment relationship, and proper execution labor relations (concluding an employment contract in writing, issuing an order for employment, making an entry about work in a work book). If the employer does not satisfy your application, you can apply for the protection of your rights in territorial authority Rostrud - the state labor inspectorate (including through this resource), as well as to the court.
Legal rationale
Article 15 of the Labor Code of the Russian Federation defines labor relations as relations based on an agreement between an employee and an employer on the personal performance by an employee of a labor function for payment (work according to the position in accordance with staffing, professions, specialties indicating qualifications; specific type of work entrusted to the employee), subordination of the employee to the rules of internal labor regulations while providing the employer with working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract.
The conclusion of civil law contracts that actually regulate labor relations between an employee and an employer is not allowed.
According to article 19.1. The Labor Code of the Russian Federation recognizes relations arising on the basis of a civil law contract as labor relations:
by a person who uses personal labor and is a customer under the specified contract, on the basis of a written application individual, who is the executor under the specified agreement, and (or) the prescription not challenged in court in the prescribed manner state inspector labor on elimination of violation of the second part of Article 15 of the Code;
court in the event that an individual who is a contractor under the specified agreement applied directly to the court, or based on materials (documents) sent by the state labor inspectorate, other bodies and persons with the necessary powers in accordance with federal laws.
In case of termination of relations related to the use of personal labor and arising on the basis of a civil law contract, the recognition of these relations as labor relations is carried out by the court. An individual who was a contractor under the specified agreement has the right to apply to the court for the recognition of these relations as labor relations in the manner and within the time limits that are provided for the consideration of individual labor disputes.
Unremovable doubts when considering by the court disputes on the recognition of relations arising on the basis of a civil law contract as labor relations are interpreted in favor of the existence of labor relations.
If relations related to the use of personal labor arose on the basis of a civil law contract, but were subsequently recognized as labor relations, such labor relations between the employee and the employer are considered to have arisen from the date of the actual admission of the individual who is the contractor under the specified contract to the execution of the stipulated specified contract duties, informs the press service of the mayor's office of Yoshkar-Ola.
Irina Davydova
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A rare person, when filling out documents and concluding contracts, carefully checks the text for possible errors and pitfalls.
As a rule, we check the “papers” on the run, glimpsing the beginning and ending, and hoping for the decency of the other side. For which we then pay with our nerves and "ruble".
Types of employment contract with an employee - how do they differ?
According to the law, the relationship "employee-employee" must be secured by certain documents. Namely, an employment contract, according to which (Article 56 of the Labor Code) the employee must fulfill his labor functions and comply with the rules of the organization, and the employer - to pay his salary without delay and in full.
That is, labor contract- this is important document clearly defining the rights and obligations of both parties.
What can an employment contract look like in practice and according to the law:
- Civil law. This version of the contract takes place with the "safety net" of the head. It is concluded for the provision of specific services in order to easily dismiss an employee in a situation “you are not suitable for us”. In the event that the employee has time to prove himself, they are already moving to an employment contract.
- Urgent. AT this case the contract fixes the work of the employee for a certain, very specific period, and not indefinitely. And after its completion, the authorities can legally fire the employee. Or re-employ him by issuing a dismissal order and re-concluding an agreement. True, the employer must have good reasons for concluding such an agreement. Otherwise, these actions will be considered illegal.
- Labor. The most common type of contract, which involves indefinite work on certain conditions specified in the document. This agreement, drawn up in writing, is a guarantee of observance of the rights of the employee.
Labor or civil law - differences in contracts:
- TD is work in a specific position according to existing qualifications. GPA is the performance of certain tasks with an end result.
- According to TD - salary in the amount specified in the document, according to GPA - remuneration.
- With TD, the work is carried out personally by the employee, with GPA, only the end result is usually important.
- Failure to fulfill duties under TD threatens with a penalty, reprimand or dismissal. Failure to comply with the GPA is already a sphere of civil liability.
Important points of concluding an employment contract - how to prevent mistakes and deception of the employer?
Found a new job? Is the signing of an employment contract approaching?
We study the pitfalls to protect ourselves from mistakes and unscrupulous employers!
So, an employment contract with you must sign maximum within 3 days from the moment you start working. Moreover, in 3 copies and in handwritten form.
And - regardless, whether you are invited by transfer from another place of work, whether you have small children, and whether there is a registration at the place of residence.
If the contract is not concluded with you, think about whether it is worth continuing to work. After all, TD is a guarantee of your rights.
But do not rush to sign the contract without looking either!
First, read it carefully and pay attention to the most important points:
- Compliance with the order and the contract. When the employer makes important points in the contract, they must also be written in the order for hiring you. And the primary (note - in disputable situations) will always be an employment contract. Therefore, make sure that these 2 documents correspond to each other. Let the information in the order be in an abbreviated version, but it must fully reflect the conditions specified in the contract. Any inconsistencies (note - provisions in the order that are not specified in the contract) have no legal force.
- Probation. It must be spelled out in the contract. The maximum period is 3 months. In the absence of this clause, the employee is considered hired without probationary period and, accordingly, they have no right to dismiss him later, as he has not passed this period.
- specific place of work. If it is not clearly defined by the employer in the contract, then it will be extremely difficult to dismiss an employee for "truancy" - after all workplace not specified. That is, upon dismissal for absenteeism in the absence of this clause in the employer's contract, through the court they will be obliged to reinstate you at work.
- Responsibilities. They should also be clearly and specifically written. Otherwise, the employer simply does not have the right to require the employee to perform certain tasks "in accordance with the contract." An employee can safely declare that the work that is required of him is not included in the scope of duties. And it is also impossible to dismiss an employee for not fulfilling tasks that are not in the contract.
- Wage limit. It should also be fixed in the contract. And in case of underestimation of this maximum limit, the employee can safely go to court. It is worth noting that the authorities should notify you of all changes in your pay only in writing and a couple of months before the fact of the change. It is impossible not to say about the payment "in kind". It happens that instead of a salary, employees are given products manufactured by the company. This "method", alas, has not yet become obsolete. It is considered legal if the "kind" does not exceed 20% of the salary, and is also suitable for the consumption (use) of the employee and his family.
- Rules. Before concluding a contract, your management must familiarize you (exclusively against signature) with the internal labor regulations of the company and other acts / regulations that are directly related to you.
- The content of the contract. Read the document carefully! It should contain not only your place of work and position, but also a list of duties, payment terms (including all bonuses with allowances) and the issue of social / insurance, date of commencement of work. Additional conditions may also be prescribed: the rest / work regime (if it does not coincide with the regime of other employees), the issue of compensation for " harmful work», special conditions(business trips, etc.).
- Responsibilities. Make sure they are written clearly and in as much detail as possible. That is, the position itself, the specific type of work and the department itself in which the work is supposed to be. If the contract indicates that you will fulfill your obligations, “according to job description”, then demand instructions - it must be attached to the contract with your signature (note - a copy is kept in your hands).
- Social insurance. An important point of the contract! And the information from this paragraph must be entered in accordance with federal laws. This clause is a guarantee of compensation for harm in the event of a force majeure situation, as well as temporary disability, motherhood, etc.
- Recycling. The contract must specify the exact number of working hours. And when processing - to pay you extra hours worked in 1.5 or double size.
And finally, it is worth remembering that the contract is signed only by the director and only in your presence, and the name of the company appearing in the papers must be the same everywhere.
The terms of the employment contract - what you need to pay attention to?
During employment, the contract is concluded for a specific or indefinite period, depending on the work.
- Classic contract (for an indefinite period). In this case, the period for which you are hired is not specified and is not indicated at all. That is, you are hired on a permanent basis, and termination of employment is possible only in the manner prescribed by law.
- Urgent contract. An option when you are hired for a period agreed by 2 parties to perform a specific job. The maximum term is 5 years. In addition to the validity period, this contract indicates the reasons for not concluding a regular contract (they are approved by law, and the employer has no right to expand the list of reasons). Terminate this agreement at the end of its validity period by a written warning to the employee at least 3 days in advance. In the event that the term of the contract is over, and the employee is still working, the contract automatically goes into the category of "unlimited".
It is worth noting that fixed-term contracts are divided, in turn, into ...
- An agreement with an absolutely definite period of validity. This type of contract is applicable when a person is elected to a certain elective position. In particular, with governors, rectors, etc.
- A contract with a relatively definite period of validity. Case for persons admitted to temporary organization created for a specific job and for a specific period. Termination of the contract occurs after the end of the existence of the organization.
- Conditional contract. An option in the case when an employee is needed only for a while - as a replacement for an employee who is temporarily absent for specific reasons (business trip, maternity leave etc.).
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