Employment contract with the head of the organization. Employment contract with the head. Who chooses the director

The head of an organization is a natural person who, in accordance with the law or founding documents organization manages this organization, including performing the functions of its sole executive body.

feature employment contract with the head of the organization is its conclusion for a period established by the constituent documents of the organization or by agreement of the parties.

Laws, other regulatory legal acts or constituent documents of an organization may establish procedures that precede the conclusion of an employment contract with the head of the organization (holding a competition, election or appointment to a position, etc.).

The head of an organization may hold paid positions in other organizations only with the permission of the authorized body of the legal entity, or the owner of the property of the organization, or a person (body) authorized by the owner. The law (Article 276 of the Labor Code of the Russian Federation) prohibits the head of an organization from being a member of the bodies exercising the functions of supervision and control in this organization.

The heads of organizations bear material responsibility for the damage caused to the organization in a special manner. Thus, in the cases provided for by federal law, the head of the organization compensates the organization for the losses caused by his guilty actions in full. In this case, the calculation of losses is carried out in accordance with the norms provided for by civil law. Thus, in these cases, compensation for harm is not limited to the limits of direct actual damage, and lost profits can also be recovered from the manager.

Federal Law No. 208-FZ of December 26, 1995 "On Joint-Stock Companies" (Article 71) provided for the liability of the manager for all losses caused to the company from his illegal actions, unless other grounds and amount of liability are established by federal laws.

Federal Law No. 14-FZ of February 8, 1998 "On companies with limited liability"(Article 44) provides similar rules.

The law provides for a special procedure and grounds for terminating an employment contract with a manager. Thus, the head of the organization himself has the right to terminate the employment contract ahead of schedule by notifying the employer (owner of the property of the organization, his representative) in writing not later than 1 month.

Additional grounds are established for terminating the employment contract with the head of the organization.

So, in addition to the grounds provided for by the Labor Code of the Russian Federation and other federal laws, an employment contract with the head of an organization can be terminated on the following grounds:

In connection with the dismissal of the head of the debtor organization in accordance with the legislation on insolvency (bankruptcy);

In connection with the adoption by the authorized body of a legal entity, or by the owner of the property of the organization, or by the authorized owner of the person (body) of a decision on early termination employment contract;

On the grounds stipulated by the employment contract.

At the same time, in case of termination of the employment contract with the head of the organization before its expiration by decision of the authorized body of the legal entity, or the owner of the property of the organization, or the person (body) authorized by the owner, in the absence of guilty actions (inaction) of the head, he is paid compensation for early dissolution an employment contract with him in the amount determined by the employment contract, but not less than three times the average monthly salary.

Test

Employment contract with the head of the organization his responsibility

Disciplinary and material liability leader

Literature

The legislation does not define the body that formulates the terms of the employment contract with the head of the organization. An analysis of the constituent documents of organizations indicates that not all organizations enshrine such provisions in their charters. For example, in the Charter of Alfa-Insurance OJSC in clause 12.3 it is only established that the rights and obligations of the General Director are established by law Russian Federation and the contract with him. OJSC Avtovaz acted in another way. In paragraph 1.2 of the Regulations "On the sole executive body of an open joint-stock company AVTOVAZ, it was established that the conditions and amounts of remuneration for the activities of the President must comply with the decision of the Board of Directors, which established the term of his powers and the amount of remuneration. X 5 Finance LLC also limited itself to establishing in the Articles of Association a clause stating that the amount of remuneration and monetary compensation to the sole executive body is within the competence general meeting. PJSC Sberbank of Russia in the Charter of the organization indicated that the terms of the agreement with the President (standard form of the agreement) are approved by the Supervisory Board of the Bank.

There are different opinions in the scientific literature on this issue. For example, E.S. Batusova proposes to legislate the need for statutory documents to fix the body that determines the terms of the contract with the head. I.S. Shitkina considers it possible to transfer the authority to approve the terms of the contract with the sole executive body to the board of directors of a business entity. A.V. Bogdanov points out that it is advisable to refer the solution of the question raised to the competence of the body whose competence includes making a decision on the formation of a sole executive body. S.V. Shvakin proposes in limited liability companies to bring this issue to the general meeting of the company's participants.

The situation is different with the head of a state (municipal) enterprise. In accordance with Part 3 of Art. 275 of the Labor Code of the Russian Federation, an agreement is concluded with him on the basis of a standard form of an employment contract approved by the Decree of the Government of the Russian Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations.

The contract with the head of the organization must comply with general requirements Art. 9 of the Labor Code of the Russian Federation, in other words, it cannot contain conditions that restrict the rights or reduce the guarantees of him as an employee, in comparison with the current legislation and other regulatory legal acts.

Article 57 of the Labor Code of the Russian Federation also applies to the regulation of relations with the head of the organization. Let us consider some of the conditions that must be included in the text of the contract in more detail.

First of all, this is the term of the employment contract. Systematic interpretation of Art. Art. 58, 59, 275 of the Labor Code of the Russian Federation allows us to conclude that both a fixed-term employment contract and a contract for an indefinite period can be concluded with the head of the organization. This thesis is based on the following.

By virtue of par. 7 h. 2 tbsp. 59 of the Labor Code of the Russian Federation, a fixed-term employment contract may be concluded with the head of the organization by agreement of the parties. This wording indicates that the legislator has not established a ban on concluding an employment contract with the head for an indefinite period. If a fixed-term employment contract is concluded with the head of the organization, then the term of this contract is determined by the constituent documents of the organization or by agreement of the parties (part 1 of article 275 of the Labor Code of the Russian Federation). This norm is special in relation to the provisions of paragraph 2 of part 1 of Art. 58 of the Labor Code of the Russian Federation, according to which the deadline for an employment contract is five years.

Law on LLC in paragraph 1 of Art. 40 establishes that the contract with the sole executive body is concluded for a period determined by the charter of the company. Consequently, the provisions of the LLC Law contradict the Labor Code of the Russian Federation, since in Art. 40 provided only fixed-term contract. Similarly, the issue of the term of the contract with the head is resolved in paragraph 2 of Art. 13 of the Law "On People's Enterprises", which, from our point of view, is incorrect.

Otherwise, the law decides the situation with respect to the heads of joint-stock companies. Federal Law No. 210-FZ of June 29, 2015 “On Amending Certain Legislative Acts of the Russian Federation and Recognizing Certain Provisions of Legislative Acts of the Russian Federation as Invalid” (hereinafter referred to as Federal Law No. 210-FZ of June 29, 2015) p 3 tbsp. 69 of the JSC Law was supplemented with the following paragraph: “if the powers of the executive bodies of the company are limited to a certain period ...”. Consequently, the legislator provided for the option of concluding an employment contract with the head of the organization for an indefinite period.

The dispositive approach of the legislator in setting the term of the employment contract is also evidenced by the fact that in Decree of the Government of the Russian Federation of April 12, 2013 No. 329 among options the indefinite term of the employment contract is indicated (clause 2).

The Plenum of the Supreme Court finally resolved the issue of the term of the employment contract with the head, indicating that, in accordance with domestic legislation, an agreement for an indefinite period is possible (paragraph 9 of the Resolution of the Plenum of the Supreme Court dated June 02, 2015 No. 21).

The question of what to do if, in accordance with the constituent documents, the term of office of the sole executive body has expired, but the employment contract with the head has not been terminated, remains relevant. The example of this problem clearly demonstrates the inconsistency of our legislator when making changes to regulatory legal acts. Federal Law No. 210-FZ of June 29, 2015 introduced the important changes already mentioned above to paragraph 3 of Art. 69 of the JSC Law, namely, he added the following paragraph: “If the powers of the executive bodies of the company are limited to a certain period and after such a period a decision has not been made to form new executive bodies of the company or a decision to transfer the powers of the sole executive body of the company managing organization or to the manager, the powers of the executive bodies of the company are valid until the adoption of these decisions. Thus, the problem was solved in relation to joint-stock companies. Until that moment, the problem was solved exclusively by the law enforcer, including in court.

It seems that the approach proposed in the JSC Law should be extended to similar cases in companies of other organizational and legal forms.

The remuneration of the manager is the next condition that we would like to consider. As a general rule, the terms of remuneration for the head of the organization are established by agreement of the parties in the employment contract (part 2 of article 145 of the Labor Code of the Russian Federation). We agree with D.L. Kuznetsov, who pointed out that the head of the organization is the only employee whose salary is established only in the employment contract, while in relation to other employees, the salary actually goes into the employment contract from the remuneration system established in the organization. An exception to this rule is fixed in Part 1 of Art. 145 of the Labor Code of the Russian Federation. For the managers listed in this article, remuneration will be determined in the manner established by federal laws and other regulatory legal acts of the Russian Federation, laws and other regulatory legal acts of the constituent entities of the Russian Federation, regulatory legal acts of local governments, constituent documents of a legal entity (organization) . For example, for the leaders of the federal state unitary enterprise restrictions on the ratio of the average wages the head of the organization to the average salary of employees payroll in multiples of one to eight.

Regarding the leaders of a number of state and municipal enterprises special Orders were adopted to establish the maximum level of the ratio of wages of heads of state unitary enterprises. All of them establish a ratio similar to that established in Decree of the Government of the Russian Federation dated January 02, 2015 No. 2: namely, the maximum level of the ratio of the average salary of heads of federal state unitary enterprises, and the average salary of employees on the payroll (excluding the head, deputy heads and chief accountant) of these enterprises in a multiple of eight.

Regarding the remuneration of the head of some enterprises in State Duma The Russian Federation currently has two bills. First - Project federal law No. 715823-6, submitted for consideration on February 05, 2015, proposes to extend the provisions of Decree of the Government of the Russian Federation of January 02, 2015 No. 2 not only to the heads of federal state unitary enterprises, but also to the heads of municipal enterprises, state and municipal institutions, and also heads, their deputies, chief accountants and members of collective executive bodies of state corporations concluding an employment contract, state companies and business companies, more than fifty percent of the shares (stakes) in the authorized capital of which are state-owned or municipal property. At the same time, it is proposed to establish the maximum salary of the head of the relevant organizations: not higher than the average monthly monetary reward President of the Russian Federation according to the testimony of the previous calendar year.

The second Draft of the Federal Law No. 1012025-6, introduced on March 4, 2016, proposes to introduce a slightly different mechanism for regulating the remuneration of the heads of some business entities.

Firstly, it is proposed to expand the circle of organizations for which a special procedure for determining the amount of wages will be established. In particular, in comparison with Draft Law No. 715823-6, the list additionally includes heads of state off-budget funds of the Russian Federation and territorial compulsory medical insurance funds.

Second, three levels of regulatory legal regulation manager salary:

.for heads of state non-budgetary funds of the Russian Federation, federal public institutions, federal state unitary enterprises - regulatory legal acts of the Government of the Russian Federation;

.for the heads of territorial compulsory medical insurance funds, state institutions of the constituent entities of the Russian Federation, state unitary enterprises of the constituent entities of the Russian Federation - by regulatory legal acts of the constituent entities of the Russian Federation;

.for heads of municipal institutions, municipal unitary enterprises - regulatory legal acts of local governments.

As stated in the explanatory note, both bills are aimed at preventing excessive and unjustified spending of budget funds. In our opinion, the second bill in terms of establishing the remuneration of the head is more acceptable, because. worked out in more detail and allows you to streamline and reduce the array of regulatory legal acts that regulate the remuneration of the heads of the organization of the corresponding category.

When establishing remuneration, the head of limited liability companies and joint-stock companies should also take into account the provisions of the Code corporate governance, approved Bank of Russia Letter No. 06-52/2463 dated April 10, 2014, according to which the level of remuneration, on the one hand, must be sufficient to attract, motivate and retain persons with the qualifications and competences necessary for society, but, on the other hand, hand, the remuneration should not be more than necessary. In addition, it is necessary to avoid an unreasonably large gap between the levels of remuneration of these persons and employees of the company.

Another important issue that should be considered in this paragraph is the possibility of establishing additional conditions in the employment contract with the head of the organization for terminating the employment contract. This possibility is established by two articles at once. Labor Code RF, almost completely duplicating each other: p. 13, part 1, art. 13 of the Labor Code of the Russian Federation and clause 3 of Art. 278 of the Labor Code of the Russian Federation.

Some authors say that in this case there is a termination of the employment contract by agreement of the parties, since the introduction by the parties concluding the employment contract of an additional reason for dismissal of the employee deprives the subjects of labor relations of the right to consider the implementation of this procedure as termination at the will of the employer. This position should not be accepted. Fixing the grounds for the dismissal of the head of the organization in the employment contract is nothing more than a way to fix them, and not fixing the agreement of the parties on the grounds for terminating the employment contract. At the same time, the initiative to terminate the employment contract will come from the employer. In addition, Art. 78 of the Labor Code of the Russian Federation, which establishes the possibility of terminating an employment contract by agreement of the parties, does not indicate the need for any other grounds for terminating an employment relationship. Ultimately, from paragraph 1 of Art. 77 of the Labor Code of the Russian Federation it follows that the agreement of the parties is in itself the basis for terminating the employment contract.

For dismissal on the basis under consideration, it is necessary that additional grounds be determined directly in the employment contract. There is no approximate list of such grounds in the legislation.

Noteworthy is the Order of the Ministry of Economy of the Moscow Region of July 15, 2013 No. 33-RM “On approval of the form of a standard employment contract with the executive director of a non-profit organization” (hereinafter - the Order of the Ministry of Economy of the Moscow Region of July 15, 2013 No. 33-RM).

It provides such grounds for terminating an employment contract with the head of an organization as a delay in the payment of wages by an employee, other payments provided for by law, a collective agreement, employment contracts, the formation of debts for the payment of taxes, fees, and other mandatory payments to the budgets of all levels and off-budget funds, non-fulfillment of the annual budget of income and expenses, etc.

Employment contracts, as a rule, establish the points listed above, some with a direct reference to with reference to the Order of the Ministry of Economy of the Moscow Region of July 15, 2013 No. 33-RM, and others that do not fall under its territorial effect duplicate the established conditions.

Of interest is the decision of the Zhukovsky District Court of the Kaluga Region dated June 11, 2014 in case No. 2-600 / 2014 ~ M-541 / 2014, which considered the admissibility of establishing in an employment contract such a basis as the adoption by the employer of a decision on early termination of the employment contract. The court came to the correct, in our opinion, conclusion that, in fact, in this case, there is a dismissal under paragraph 2 of Art. 278 of the Labor Code of the Russian Federation, therefore, in this case there are no other grounds established by the employment contract that are not contained in the Labor Code of the Russian Federation.

From the systemic interpretation of paragraph 13 of part 1 of Art. 81 and paragraph 3 of Art. 278 of the Labor Code of the Russian Federation it follows that in an employment contract there may be grounds, both related to the guilty actions of the employee, and not related to them. In the first case, the question arises whether it is necessary to comply with the procedure for applying a disciplinary sanction under Art. Art. 192-194 of the Labor Code of the Russian Federation.

In part 3 of Art. 193 of the Labor Code of the Russian Federation lists cases when the dismissal of an employee will be considered as a disciplinary sanction. The list is open, therefore, from our point of view, it is possible to extend the mechanism for applying a disciplinary sanction when dismissal on the grounds provided for in paragraph 13 of part 1 of Art. 81 of the Labor Code of the Russian Federation is connected with the guilty actions of the employee. On the possibility of extending the effect of Art. 192-194 of the Labor Code of the Russian Federation for cases not specified in Part 3 of Art. 193 of the Labor Code of the Russian Federation was also indicated by the Constitutional Court of the Russian Federation. It is also necessary to take into account the position of the Constitutional Court of the Russian Federation regarding the fact that the dismissal of the head for committing guilty actions (inaction) cannot be carried out without specifying specific facts indicating the unlawful behavior of the head, his fault, as well as without observing the procedure established by law for applying this measure of responsibility, otherwise would be in conflict with those arising from Art. 1, 19 and 55 of the Constitution of the Russian Federation general principles legal responsibility in the rule of law.

Judicial practice on this issue is not unambiguous. Some courts, when making decisions, refer to the fact that dismissal under paragraph 3 of Art. 278 of the Labor Code of the Russian Federation is dismissal at the initiative of the employer, however, Art. 192 of the Labor Code of the Russian Federation does not include dismissal on this basis as a disciplinary sanction. There is an opposite arbitrage practice when the courts speak about the need to comply with the procedure for applying a disciplinary sanction, in particular, requesting written explanations from the employee.

The legislator does not provide for the payment of compensation to an employee in connection with the termination of an employment contract with him in accordance with paragraph 3 of Art. 278 of the Labor Code of the Russian Federation. But the ban on such compensation is also not fixed. One should agree with those authors who point out that, given the current practice, to establish in the employment contract grounds related to certain violations on the part of the head of the organization, it is not necessary to introduce into the Labor Code of the Russian Federation a provision on the payment of monetary compensation to the head upon dismissal on this basis.

Draft Federal Law No. 765778-6 proposes amendments to paragraph 3 of Art. 278 of the Labor Code of the Russian Federation. It is proposed to expand the method of fixing additional grounds, namely, to establish them not only in the employment contract, but also in the constituent documents of the organization. The authors of the draft law consider it necessary to state paragraph 3 in the following wording: "3) on other grounds provided for by the employment contract and (or) the constituent documents of the organization.".

The Explanatory Note to the Draft Federal Law states that additional grounds for the dismissal of the head of a non-profit organization should be exhaustively established by the constituent documents (charter) of the organization and (or) the employment contract. In this case, the head of the organization will know all the grounds on which he can be dismissed. However, these motives for the change appear to be debatable. First, the proposed wording is at odds with the explanations of the initiators. The text of the draft law offers the possibility of alternatively establishing additional grounds both in the employment contract and in the constituent documents, while it follows from the Explanatory Note that the grounds in without fail should be established in the constituent documents, and in the employment contract already at the request of the parties. Secondly, the argument that the head of the organization "will know all the grounds for which he can be dismissed" is doubtful. A logical question arises why the head of the organization does not know about the additional grounds established in the employment contract that he signs. Thirdly, the Explanatory Note refers only to managers non-profit organizations, while the wording of paragraph 3 applies to the heads of all organizations, including state ones.

Thus, to the question of the need to make these changes to paragraph 3 of Art. 278 of the Labor Code of the Russian Federation should be answered in the negative.

Considering the foregoing, the following conclusions should be drawn.

An employment contract with the head of an organization cannot contain conditions restricting his rights or reducing his guarantees as an employee, in comparison with the Labor Code of the Russian Federation and other regulatory legal acts.

The Plenum of the Supreme Court of the Russian Federation put an end to the discussion on the term of the employment contract with the head, indicating that it can be concluded both for a fixed and indefinite period.

Since nowhere, with the exception of the JSC Law, the problem of what to do if the term of office of the sole executive body has expired and a new candidate for this position has not been approved has not been resolved, we consider the following approach to be correct. The powers of the sole body will be valid until appointed new leader organizations.

Salary of the head of the organization - necessary condition labor contract. For the purpose of cases of abuse of the right in cases where the head himself sets the amount of wages or its constituent parts, it is necessary to indicate in the constituent documents of the organization the body competent to resolve this issue. Similarly, it is necessary to resolve the issue of establishing the amount of monetary compensation paid in accordance with Art. 279 of the Labor Code of the Russian Federation.

An important issue is the possibility of establishing in an employment contract with the head of the organization the conditions for its termination. It should be noted that the provisions of paragraph 13 of Part 1 of Art. 81 of the Labor Code of the Russian Federation are duplicated in paragraph 3 of Art. 278 of the Labor Code of the Russian Federation. It seems that it is necessary to exclude the provisions that fix the possibility of terminating the employment contract with the head of the organization from Art. 81 and leave only in Art. 278 of the Labor Code of the Russian Federation, since article 81 lists the general grounds for terminating an employment contract with the head of an organization, and the ground in question is special and applies only to the heads of the organization.

In our opinion, it is necessary to amend Art. 193 of the Labor Code of the Russian Federation in terms of establishing the possibility of applying a disciplinary sanction to an employee in the case when the reason for dismissal was the employee's guilty actions. The legislator does not prohibit the establishment in the employment contract of additional grounds that are not related to the guilty actions of the employee. In such cases, it is possible to establish monetary compensation in the employment contract in case of termination of the employment contract on these grounds.

2. Disciplinary and financial responsibility of the head

The head of the organization in the process of exercising his powers can be brought to all types of liability from disciplinary to criminal. In this study, we will consider only disciplinary and material liability.

Being an employee of the organization, the manager may be held disciplinary liable for failure to perform or improper performance of his/her labor duties. In relation to the employees of the organization, the manager implements the procedure for bringing to disciplinary responsibility. Who and how implement the procedure of art. 193 of the Labor Code of the Russian Federation in relation to the head of the legislator has not been established, as some authors rightly point out. As part of solving this problem, from our point of view, it would be appropriate to establish this in the founding documents of the organization. We consider it possible in Art. 193 of the Labor Code of the Russian Federation, it is necessary to indicate the need to identify a person whose competence will include the possibility of bringing the head to disciplinary responsibility.

Differentiation in relation to the head is also manifested in the fact that he can be brought to disciplinary responsibility at the request of the representative body of employees. In accordance with Part 1 of Art. 195 of the Labor Code of the Russian Federation, the employer is obliged to consider the application of the representative body of employees about the violation by the head of the organization of legislation and other acts containing norms labor law, conditions collective agreement, agreement and report the results of its consideration to the representative body of employees. Part 2 of the same article indicates that if the fact of a violation is confirmed, the employer is obliged to apply a disciplinary sanction up to and including dismissal to the head of the organization, the head of the structural unit of the organization, their deputies. From the wording of this article it follows that all types of disciplinary action established by Art. 192 of the Labor Code of the Russian Federation.

In our opinion, Art. 195 of the Labor Code of the Russian Federation has a number of shortcomings. Firstly, the procedure for submitting an application to the employer by the representative body of employees is not actually defined. In particular, the question of how the representative body of employees decides on filing such an application has not been resolved. The application form is also not established. More important is the question of who in this case is the employer, in other words, the body to which the application is submitted is not defined. Subsequently, the following problem arises: it does not follow from the legislation which body considers the received application and makes a decision on it. Thus, we come to the conclusion that the legislation lacks a mechanism for implementing Art. 195 of the Labor Code of the Russian Federation.

There is almost no judicial practice in applying the article in question. From the existing decisions, it can be concluded that attempts to apply Art. 195 of the Labor Code of the Russian Federation took place in budget institutions, where the mechanism of subordination of the leader is quite obvious.

In our opinion, there are two possible solutions to the problem of applying Art. 195 of the Labor Code of the Russian Federation. The first option is to delete Art. 195 of the Labor Code of the Russian Federation. The second option is more complicated. First, it is necessary to establish the obligation of organizations to establish in the constituent documents the body or person authorized to consider the application of the representative body of employees. Secondly, it is necessary to establish the obligation of the representative body of employees to adopt the procedure for making a decision on the submission of the relevant application (although we do not exclude that most likely it will be a general meeting of the representative body).

Speaking about the disciplinary responsibility of the head, it is impossible to ignore the possibility of applying to him such a disciplinary sanction as dismissal. To disciplinary action, in accordance with Art. 192 of the Labor Code of the Russian Federation refers to the dismissal provided for in paragraphs. 5-10 Art. 81 of the Labor Code of the Russian Federation with the proviso that the dismissal of paragraphs 7, 7.1, 8 of Art. 81 of the Labor Code of the Russian Federation will be considered disciplinary only if a guilty act is committed at the place of work and in connection with the performance of labor duties. The general grounds for dismissal of employees listed above are certainly applicable to the manager. However, we are more interested in a special ground for dismissal, which, in our opinion, should be transferred to Chapter 43 of the Labor Code of the Russian Federation: the head of the organization making an unreasonable decision that entailed a violation of the safety of property, its misuse or other damage to the property of the organization (clause 9 of part 1 article 81 of the Labor Code of the Russian Federation). The first reason will be considered in more detail in §1 of Chapter 3 of this work. The second one will be discussed in more detail in this section.

So, the Labor Code of the Russian Federation in paragraph 9 of Part 1 of Art. 81 establishes that the head of the organization may be dismissed as a result of his making an unreasonable decision that entailed a violation of the safety of property, its misuse or other damage to the property of the organization. In order for the termination of an employment contract to be recognized as lawful, it is necessary to fulfill a complex legal structure. Let's consider each of its elements separately.

First of all, it is necessary to make an unreasonable decision, however, what is it, labor law does not reveal. The Plenum of the Supreme Court pointed out that when deciding whether the decision was unreasonable, it is necessary to take into account whether the named unfavorable consequences occurred precisely as a result of the adoption of this decision, and whether they could have been avoided if another decision was made.

There are several points of view in the literature as to which decision should be considered unreasonable. HE. Volkova considers as an unreasonable decision a decision that contradicts the current labor legislation, other federal laws, regulatory legal acts, as well as a decision made in excess of the powers of the employees specified in paragraph 9. But not always an unreasonable decision will be contrary to regulatory legal acts, which is confirmed jurisprudence, which is discussed below.

Some authors do not offer a specific definition of an unreasonable decision, however, they highlight the criteria by which the decision of the head of the organization can be recognized as unreasonable. For example, D.L. Shchur, L.V. Shchur-Trukhanovich as such criteria are the following:

the decision was made on the basis of incomplete, inaccurate, insufficient or incorrect data;

when making a decision, not all data were properly evaluated, a number of data were ignored (for example, increased risks (commercial, financial, etc.));

data (including, for example, legal regulations) have been misinterpreted or misinterpreted;

the decision was made on an emotional level, although a number of objective factors had to be taken into account when making it;

prior to making a decision, consultations and preparatory activities should have been carried out (checks (for example, the creditworthiness of the organization), analytical studies, data collection, calculations (for example, commercial and financial risks, etc.); however, these measures were not carried out in violation of the established procedure.

As an example of an unreasonable decision, we can consider a transaction that does not comply with the requirements of the law or local regulatory legal acts. This thesis is also confirmed by judicial practice. Also, a decision may be recognized as unreasonable when it was made without taking into account the instructions of a member of the board of directors of the company. It should be borne in mind that unreasonableness is not always identical with illegality. For example, if the head of the organization unreasonably planned the organization's expenses for the wage fund, this can be considered an unreasonable decision, despite the fact that the head had the authority to plan the organization's expenses.

In addition to the fact of making an unreasonable decision, the employer must prove that such a decision caused a violation of the safety of property, its misuse or other damage to the property of the organization. An analysis of judicial practice shows that many dismissals are recognized as illegal due to the lack of evidence for such a causal relationship.

Illegal use of property involves its operation not in accordance with its functional purpose or to achieve goals that are beyond the economic goals of the employer as the owner of the property.

For dismissal under paragraph 9 of part 1 of Art. 81 of the Labor Code of the Russian Federation, it is enough to prove the occurrence of one of the consequences listed in paragraph. In particular, damage can be proven by providing financial statements, from which it will clearly follow that there has been a significant decrease in the item " cash”, growth of accounts receivable, decrease in indicators financial stability, liquidity and solvency. In cases where we are talking about transactions, the conclusion of which caused damage to the employer, as a rule, the contracts themselves are provided, on the basis of which the property was alienated, which the court evaluates these contracts from the point of view of economic feasibility and validity, as well as analyzing whether a ban has been established for conclusion these contracts in constituent documents or other acts of the organization. As evidence, it is also possible to provide sentences that have entered into legal force in a criminal case, court decisions in civil cases on invalidating transactions made with the property of an organization (branch, representative office), etc.

From our point of view, an unreasonable decision should be understood as such a decision that does not meet the requirements of good faith and reasonableness, as well as made without taking into account the customs of business transactions and other circumstances that had to be taken into account within the current situation. A decision made in violation of the current legislation will also be unreasonable.

Let's move on to the question of the liability of the head. The issue of the liability of the head is regulated by both labor and civil legislation. In accordance with Part 1 of Art. 277 of the Labor Code of the Russian Federation, the head bears full liability for direct actual damage caused to the organization. Direct actual damage is understood as a real decrease in the employer’s cash property or deterioration in the condition of the said property (including the property of third parties held by the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to incur costs or excessive payments for the acquisition, restoration of property or compensation for damage caused by the employee to third parties.

Compensation for direct actual damage is carried out according to general rules, in accordance with the provisions of Chapters 37 and 39 of the Labor Code of the Russian Federation.

The Labor Code of the Russian Federation provides for the possibility to recover from the head the losses caused by his guilty actions. This option is possible in cases provided for by federal laws. The calculation of the amount of damage caused is carried out in accordance with civil law.

Losses in the understanding of civil law are expenses that a person whose right has been violated has made or should have made to restore the violated right, loss or damage to property (actual damage), as well as lost income that this person would have received under normal conditions of civil circulation , if his right would not have been violated (lost profit). In accordance with paragraph 1 of Art. 53.1 of the Civil Code of the Russian Federation, a person who, by virtue of a law, other regulatory legal act or constituent document of a legal entity, is authorized to act on its behalf, is obliged to compensate for losses caused through his fault to the legal entity. Further regulation of the issue of the liability of the head depends on the organizational and legal form of the organization.

The head of a joint-stock company shall be liable to the company for losses caused to the company by their guilty actions (inaction) unless other grounds for liability are established by federal legislation. By virtue of paragraph 3 of Art. 71 of the JSC Law, the grounds and the amount of liability, including that of the sole executive body, are determined taking into account the usual conditions of business turnover and other circumstances relevant to the case. When considering this category of cases, the courts consider the presence or absence of guilt in the actions of the head, as well as evidence that the head acted in bad faith or unreasonably. There are a number of court decisions where the issue of the leader's action in accordance with the customs of business was considered. However, in assessing the relevant court decisions, it is impossible not to note the fact that the courts, trying to assess the actions of the head in relation to the customs of business, reduced the consideration of the issue to the legality or illegality of his actions.

The relevant provisions of the LLC Law apply to the head of a limited liability company. In particular, by virtue of paragraph 2 of Art. 44 of the above law, the sole executive body of the company is liable to the company for losses caused to the company by their guilty actions (inaction), unless other grounds and amount of liability are established by federal laws. Judicial practice in relation to the heads of LLCs does not differ significantly from the practice with the heads of joint-stock companies in terms of the circumstances to be proven.

Thus, we must state that the financial responsibility of the manager differs from the financial responsibility of other employees. The legislator unequivocally resolved the issue in favor of the fact that the head not only bears full financial responsibility, which includes direct actual damage caused to the organization, but is also obliged to compensate for the losses caused to society by his actions. Such specificity is justified, since, as already mentioned, the role of the leader in the organization is very high, as well as the importance of the decisions made by him in the process of managing the organization.

There are various approaches to this problem in the literature. I.S. Shitkina points out that the norms of the considered federal laws and the Labor Code of the Russian Federation mutually exclude each other. The author points out that the conflict in question should be resolved in favor of civil law. ABOUT. Zaitseva, on the contrary, believes that if there are no norms on the amount of compensation in the federal law material damage, then only in this case the head will be liable in accordance with labor legislation. Therefore, in relation to the heads of JSC and LLC, in the first place, the Law on JSC and the Law on LLC are subject to application, respectively. A similar position is held by E.P. Dolgova, V.A. Sysoev. T.Yu. Korshunova points out that the norms of Art. 71 of the JSC Law and art. 44 of the LLC Law are blocked by the Provisions of Part 1 of Art. 277 of the Labor Code of the Russian Federation.

The Plenum of the Supreme Court of the Russian Federation does not adhere to such a position, which follows from paragraph 6 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated June 02, 2015 No. 21, giving preference to special norms of civil law.

When bringing the manager to liability, a natural question arises about the jurisdiction of the category of disputes under consideration. The Plenum of the Supreme Court leaves this issue unresolved, stipulating only that disputes can be considered both by courts of general jurisdiction and by arbitration courts in accordance with general rules on the division of jurisdiction. At the same time, precisely because of the impossibility of such a clear distinction, the judicial practice in cases of recovery from the head of the damage caused or bringing him to liability is quite diverse. For example, in the Appellate ruling of Yaroslavsky regional court dated December 07, 2015, the court concluded that the relationship between CEO society and the society itself arise from the employment contract. Consequently, the case on the claim of the organization against the general director of the company (including the former) for compensation for losses caused to the company in the performance of his duties arises from labor relations and, as a labor dispute, is subordinate to a court of general jurisdiction on the basis of clause 1, part 1 Art. 22 Code of Civil Procedure of the Russian Federation. This position is held by the majority of courts of general jurisdiction, which can be traced in a number of court decisions.

At the same time, there are single court decisions that set out the opposite position. For example, in the Appellate ruling of the Chelyabinsk Regional Court dated November 24, 2015, the opposite position is stated; the court pointed out that the claim for damages caused by the actions (inaction) of the director of a legal entity is subject to consideration in the arbitration court, including in cases where the party refers to the provisions of Art. 277 of the Labor Code of the Russian Federation.

As already mentioned, along with the courts of general jurisdiction, disputes on the recovery of losses from the head of the organization are considered by arbitration courts, in which the issue of jurisdiction of this category of disputes is resolved quite unambiguously. In the overwhelming majority of cases, such disputes are considered as corporate ones, and, as a result, under the jurisdiction of arbitration courts. The issue of jurisdiction in the overwhelming majority of cases is decided on the basis of the wording used by the parties when drawing up statement of claim. For example, if a party indicates that the defendant is a director, general director, head, then the dispute will be subordinated to a court of general jurisdiction. In this case, the subject composition plays a role. If the sole executive body is indicated as the defendant, then most likely the dispute will be considered arbitration court. The substantiation of the requirements is also of great importance: the provisions of which legislation the party will mainly refer to - civil or labor.

It seems that only the legislator will be able to resolve the existing situation by establishing a single jurisdiction of the category of cases under consideration. It seems logical, given the nature of the relationship between the head of the organization and the organization itself, to establish jurisdiction over the courts of general jurisdiction.

Thus, bringing the head of the organization to both disciplinary and material liability has a number of features that must be taken into account in practice.

In terms of disciplinary liability, of interest is the dismissal due to the adoption by the head of the organization of an unreasonable decision that entailed a violation of the safety of property, its misuse or other damage to the property of the organization. In order to improve domestic legislation, it is proposed to enshrine in the legislation the term: "unreasonable decision of the head of the organization" in the following wording: a decision that does not meet the requirements of good faith and reasonableness, and also taken without taking into account the customs of business turnover and other circumstances that had to be taken into account within the framework of the situation. A decision made in violation of the current legislation will also be unreasonable.

The legislation does not establish a body whose competence includes bringing the head to disciplinary responsibility. It seems logical to address this issue in the founding documents of the organization.

Currently, the Labor Code of the Russian Federation contains an inactive article 195, which establishes that the head of the organization should be held accountable at the request of the representative body of employees. There is no legislative mechanism for the implementation of this norm. We see two possible solutions these are problems. The first is to fix the obligation of the representative body of employees to approve the procedure for making a decision on the submission of the relevant application, and in the constituent documents of the organization to the authorized body to establish the procedure for accepting and considering such an application. The second is to exclude the provisions of Art. 195 of the Labor Code of the Russian Federation. Given that at present the legislator does not limit the possibility of implementation at the local level, the absence of relevant acts in practice indicates the absence of the need for this rule.

The financial responsibility of the head of the organization is one of the issues that today, in the legislation, is resolved quite unambiguously. a question that remains debatable to this day. The legislator has established a specific structure of the liability of the head: full liability, which includes not only direct actual damage, but also losses caused by the head of the organization.

disciplinary labor contract

Literature

1. Mogilevsky S.D. Limited liability company: legislation and practice of its application. M.: Statut, 2010. 421 p.

2. Mogilevsky S. The concept and procedure for the formation of management bodies of a joint-stock company // Economy and law. 2006. No. 1. S. 60-65.

Mogilevsky S.D., Samoilov I.A. corporations in Russia. Legal status and bases of activity. M., 2006. 480 p.

4. Reference book of the judge labor disputes: educational and practical guide / G.A. Zhilin, V.V. Korobchenko, S.P. Mavrin and others; ed. S.P. Mavrina. M.: Prospekt, 2011. 296 p.

5. Scientific and practical commentary to the Labor Code of the Russian Federation (item-by-article) / O.N. Volkova, V.L. Geikhman, I.K. Dmitrieva and others; resp. ed. V.L. Geikhman. Moscow: Yurayt, 2012. 816 pages.

6. Nurtdinova A.F., Chikanova L.A. Correlation between labor and new civil legislation // New civil code of Russia and industry legislation. M.: VNIISZ Publishing House, 1995. No. 59. S. 6-31.

7. Ogorodov D.V., Chelyshev M.Yu. Some debatable problems of the doctrine of mixed contracts // Jurisprudence, St. Petersburg, 2007. No. 6. P. 41-63.

Orlovsky Yu.P. Peculiarities legal status head of the organization // Economy and law. 2015. No. 7. S. 49-58.

Orlovsky Yu.P. Problems of improving labor legislation // Journal Russian law. 2015. No. 9. P. 40-51.

Orlovsky Yu.P., Nurtdinova A.F., Chikanova L.A. Handbook of personnel officer: legal aspects // M.: MTsFER. 2015. 384 p.

Features of regulation of labor relations of certain categories of workers: scientific and practical manual / E.G. Azarova, M.A. Bocharnikova, L.A. Egoshina and others, responsible. ed. Korshunova T.Yu. M.: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2015. 400 p.

Rogaleva I.Yu. Features of bringing to disciplinary and financial responsibility the head of the organization, the head of the structural unit of the organization, their deputies and others officials// Labor law. 2009. No. 4. S. 97-101.

The employment contract with the director is a standard personnel document, after all, even the CEO is the same employee as the others. However, the nature of labor relations with the employer is somewhat different. The work of a leader is associated with greater responsibility than the labor function of an ordinary employee. He manages the company and is responsible for his actions both legally and financially. How to make such a document without errors?

Despite the high position of the head, the terms of the labor contract with him do not differ much from the standard clauses of standard agreements. Let us examine in more detail the features of the design of such an agreement. At the end of the article you will find sample agreements. The form is not unified, there is no need to copy a standard form, you can act and change the conditions according to the purposes of hiring an employee for a position.

Position of the director of the organization

A director is the head of a small firm or a huge corporation. This is an individual who assumes the powers of the executive body of the organization, regardless of its size. The position of the head does not always bear the name "director". Other names may appear in the agreement: the president of the company, the head of the corporation, the general director. It is important that the name in the contract sound the same as in the founding documents of the company. The number of executives hired by the organization and responsible for various technical and production areas may consist of two or three persons. In this case, the leaders of narrower areas are subject to the orders of the higher leadership (usually the general).

Features of concluding an agreement with a director

Relationships between the employer company and its manager are built according to the rules of the Labor Code, laws of the Russian Federation and the constituent entities of the Russian Federation, regulations of local authorities, constituent documents and local acts of the company. The function of the employer can only be performed by a legal entity, not an individual. This is the main difference from agreements with ordinary employees. But there are other features as well. Let's take a closer look.

Mandatory conditions

The contract with the managing person is concluded in writing in two copies. The agreement is signed by the employee (future leader) and the owner of the company (founder) or a representative of the general meeting of shareholders.

Mandatory items that are present in all types of agreements (not only with the head):

• details of the parties: full name and passport details of the employee, the name and details of the legal entity;
• date of conclusion;
• place of detention (address);
• job title;
• description of job duties;
• payroll information;
• probationary period condition (if any);
• compensation information.

If the condition of the probationary period is not included in the agreement, then it is considered that the manager has been accepted for the position without a test.

Conditions that apply only in contracts with executives:

• if wages exceed 25% of the value of the company's assets, then the contract is approved by an advisory body (meeting of founders, board of directors);
• the minimum amount of compensation upon termination of the agreement with the head is not less than the amount of three months' earnings;
• a clause on non-disclosure of commercial secrets and a measure of liability must be included in the agreement;
• it is not necessary to include a liability clause, it comes by default.

Competition, election or appointment

The leader takes office in the following ways:

• there is a competition;
• elected at a meeting of founders or the board of directors;
• appointed by the founder personally;
• other.

It is difficult to draw an independent conclusion from the norms of the Labor Code of the Russian Federation. Officials of departments and departments - Rostrud, the Ministry of Finance, the Federal Tax Service - have already given many explanations on this matter, periodically changing their position. The Letter of the Ministry of Finance dated March 15, 2016 No. 03-11-11 / 14234 states that it is impossible to sign an employment contract in such a situation. The Ministry indicates that labor relations are formalized with the sole founder not by agreement, but by a written decision, therefore, a sample agreement with the director, if the founder and director are the same person, is a violation.

But it is worth remembering that the clarification of the ministry is not a legal act, and therefore has no legal force. Citizens have the right to interpret the law differently. The Labor Code of the Russian Federation does not contain a direct ban on the execution of an employment contract with the founder, but there is no permissive norm either. In the list of persons who are not covered by labor law, founding general manager is not included, which means that a sample employment contract with a director, if he is the only founder, is still quite legitimate. Therefore, as an employee, he is endowed with all the rights and obligations that are established by the Labor Code of the Russian Federation. The Federal Law on LLC also does not prohibit allowing oneself to work. Experts believe that signing an agreement with a sole founder will not create problems. On the contrary, the absence of a contract can lead to fines during inspections. Moreover, an employment contract with the director of an LLC is necessary if he is one of the founders.

Since the code contains no obstacles to concluding an agreement with itself, the only member of the Society signs twice:

• as an employee;
• and as a representative of the employer.

A sample employment contract with the general director of an LLC - he is also the founder - may contain the following wording: “LLC (OJSC) Inter, referred to as the Employer, represented by the sole participant Viktor Petrovich Trushkin, acting on the basis of the Charter and decision No. 1 dated 02.05. 2016, on the one hand, and Trushkin Viktor Petrovich, referred to as the "Worker", on the other hand, have entered into this employment contract on ... ". You can download a sample employment contract with the director of an LLC (he is also the founder) on our website - links to various document options are given at the end of the article.

Employment contract with the director of a state institution

Upon admission to the position of head of state or municipal institution in addition to the mandatory passports, work book, TIN, by article 275 of the Labor Code of the Russian Federation, the citizen provides:

• certificate of income and property;
• information on income, property (debts and obligations) of the spouse and minor children.

This information is then resubmitted every year.

The rules for providing such information are regulated by Government Decree No. 208 of 03/13/2013.

Registration for the position of the head of a state enterprise is associated with another feature. When hiring the head of a private firm, the contract can be drawn up in any form. The main thing is to take into account the requirements of the law, and by filling the content with conditions, you can give free rein to your imagination. But a contract with the head of state or municipal organization, unlike private, is not compiled arbitrarily. It is concluded on the basis of a standard form approved by Government Decree No. 329 dated April 12, 2013.

Additional grounds for termination of the contract

In addition to the general grounds for termination, which apply to all employees, there are additional ones that apply only to managers. According to article 278 of the Labor Code of the Russian Federation, you can terminate an agreement with a manager:

• upon removal of the head of the debtor company under the bankruptcy law (FZ 127 of 10/26/2002);
• the decision of the authorized body or the owner of the company to terminate the contract;
• on the grounds specified in the agreement (usually these are clauses about violation official duties or non-performance of work functions).

When an employer cannot fire a director

The list of additional grounds for terminating the relationship with the manager gives the impression that the employer can terminate the contract at any time at will. But it is not so. Like any other employee, the employer does not dismiss the manager if it is:

• a pregnant woman (except in the event of liquidation of the company);
• a woman with a child under 3 years old;
• single mother with a child under 14 or a disabled child under 18;
• a person who is raising a child under 14 or a disabled person under 18 without a mother;
• the sole breadwinner of a child under 3 years old in a family with three or more children or a disabled person under 18 years old.

Termination of the contract with these persons is possible only on special grounds (

Legal regulation of the work of managers has certain features. They relate to the issues of registration and termination of labor relations, part-time employment, the provision of guarantees upon dismissal.

Consider the concept of the head of the organization, given in labor legislation.

The head of an organization is an individual who, in accordance with the law, constituent documents of a legal entity (organization) and local regulations manages this organization, including performing the functions of its sole executive body (Article 273 of the Labor Code of the Russian Federation).

The rights and obligations of the head of the organization in the field of labor relations are determined by labor legislation, the constituent documents of the organization, local regulations, and an employment contract.

With the head, as with other employees, an employment contract is concluded. Usually with these persons a fixed-term employment contract is concluded. The term of the employment contract of the head is determined based on the term of his powers specified in the constituent documents of the organization, but not more than five years. However, the law does not prohibit the conclusion of an employment contract with the head of the organization for an indefinite period.

An employment contract with the head of a state (municipal) institution is concluded on the basis of a standard form of an employment contract approved by Decree of the Government of the Russian Federation of April 12, 2013 No. 329.

Like other employees, the head of the organization, when applying for a job, is required to present Required documents listed in Article 65 of the Labor Code of the Russian Federation. Features are provided for a person entering the position of head of a state (municipal) institution. In this case, additional information is provided on the income of the applicant for the position, on property and property obligations, as well as on income, property and property obligations of his spouse and minor children. subject composition judicial agreement

An employment contract with a manager is somewhat different from a contract with an ordinary employee. In particular, it contains conditions on: irregular working hours, passing the test, observing trade secrets, the amount and procedure for remuneration, compensation in case of early termination.

It is desirable to include conditions on the grounds for termination of employment and advance notice of dismissal.

Before accepting such an employee, you must make sure that he is not a disqualified person, the register of which is maintained by the Ministry of Internal Affairs (GUVD, ATC) for the constituent entity of the Russian Federation.

An employment contract is not the only basis for the emergence of an employment relationship. It may be preceded by procedures established by labor legislation and other regulatory legal acts containing labor law norms - holding a competition, election or appointment to a position, etc.

The head of the organization may work part-time for another employer only with the permission of the authorized body of the legal entity, the person or the owner of the property of the organization, or the person (body) authorized by the owner.

For this employee it is forbidden to be a member of the bodies exercising the functions of supervision and control in this organization.

The head bears full material responsibility for the direct actual damage caused to the organization by his guilty actions. According to the Decree of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 No. 52 "On the application by the courts of legislation governing the material liability of employees for damage caused to the employer" (paragraphs 9, 10), the full liability of the head of the organization for damage caused to the organization occurs in by force of law (that is, by virtue of Article 277 of the Russian Federation), and the employer has the right to demand compensation for damage in full, regardless of whether the employment contract with the manager contains a condition on full liability. In this matter, the position of the head differs from the position of the deputy head of the organization or the chief accountant, in respect of which, in accordance with part two of Art. 243 of the Labor Code of the Russian Federation, full liability is applicable only if such a condition is included in the employment contract; otherwise, these persons may only be liable up to the limits of their average monthly earnings. Compensation and calculation of losses caused by his guilty actions is carried out in accordance with the norms of civil law.

The general grounds for termination of an employment contract for all categories of employees, including managers, are such as agreement of the parties, expiration of the employment contract, termination of the employment contract at the initiative of the manager.

Special grounds for terminating the employment contract are also provided for the head: making an unreasonable decision that entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization; single gross violation work responsibilities; loss of confidence in the manager due to circumstances in accordance with paragraph 7.1 of the first part of Art. 81 of the Labor Code, namely, the employee's failure to take measures to prevent or resolve a conflict of interest to which he is a party; additional grounds for termination of an employment contract, provided for in Art. 278 of the Labor Code of the Russian Federation:

• 1) in connection with the removal from office of the head of the organization - the debtor in accordance with the legislation on insolvency (bankruptcy) - such measures are provided, for example, when introducing external management or bankruptcy proceedings;
• 2) in connection with the adoption by the authorized body of the legal entity or the owner of the property of the organization of a decision on the early termination of the employment contract.
• 3) on other grounds provided for by the employment contract.

Examples of such grounds may be: non-compliance by the head of the decisions of the board of directors, the general meeting of shareholders (members) of the organization; the commission of transactions by the head in violation of the powers determined by the current legislation and the charter of the organization;

the presence, through the fault of the head, of more than 3 months of wage arrears in the organization; non-fulfillment by the organization through the fault of the head of the approved in due course indicators economic efficiency her activities.

The decision to terminate the employment contract on the specified grounds in relation to the head of a unitary enterprise is made by the authorized owner of the unitary enterprise in the manner established by the Decree of the Government of the Russian Federation of March 16, 2000 No. 234 "On the procedure for concluding employment contracts and attesting heads of federal state unitary enterprises." The same resolution approved the "Regulations on holding a competition for filling the position of the head of a federal state unitary enterprise" and "Regulations on conducting certification of heads of federal state unitary enterprises."

The head of the organization has the right to terminate the employment contract ahead of schedule by notifying the employer (the owner of the property of the organization, his representative) in writing no later than one month.

In the event of termination of the employment contract with the head of the organization in accordance with paragraph 2 of Art. 278 of the Labor Code of the Russian Federation, in the absence of guilty actions (inaction) of the manager, he is paid compensation in the amount determined by the employment contract, but not less than three times the average monthly salary, except for the cases provided for in Art. 349.3 of the Labor Code of the Russian Federation.

Interrelated normative provisions of paragraph 2 of Art. 278 and Art. 279 of the Labor Code of the Russian Federation, which regulate the termination of an employment contract with the head of an organization, were also the subject of consideration in the Constitutional Court of the Russian Federation. The Court recognized that the provisions of Art. 278 of the Labor Code of the Russian Federation, which allows termination of an employment contract with the heads of organizations without specifying specific reasons for dismissal.

At the same time, according to paragraph 4.3 of the Resolution of the Constitutional Court of the Russian Federation, the legislative consolidation of this right does not mean that the owner has unlimited discretion in making such a decision and has the right to act arbitrarily, without taking into account the legitimate interests of the organization, and the head of the organization is deprived of guarantees of judicial protection against arbitrariness and discrimination.

The dismissal of a manager at the initiative of the employer without indicating motives violates the principle of stability (guaranteedness) of labor rights. The legislator, taking into account the differentiation of the legal regulation of the work of the head, can quite reasonably limit himself to an open (estimated) list of grounds for terminating the employment contract by decision of the owner (founder) of the organization, stipulating only the fact that these grounds are not "guilty" grounds for dismissal, i.e. termination of the employment contract in this case is not a measure of legal liability. Meanwhile, at the level of individual contractual regulation, the grounds for terminating an employment contract with the head of an organization on the initiative of the owner (founders) should be specified. In the event of litigation, the employer must be obliged to substantiate the motives for terminating the employment contract.

Legislation may establish other features of labor regulation of heads of organizations and members of collegial executive bodies of these organizations.

The legal regulation of relations between an organization and its leader is quite diverse. Let us consider in more detail the problematic and interesting situation in this area. How is labor relations formalized if a citizen is the sole founder of the organization and at the same time holds the position of general director? In such a situation, the CEO must conclude an employment contract with himself.

However, there is a point of view according to which in such situations an employment contract should not be concluded, since the relationship between the head (sole founder) and the company he founded is regulated not by labor, but exclusively by civil law. So, according to Rostrud, the signing of an employment contract by the same person on behalf of the employee and on behalf of the employer is not allowed.

The explanation is as follows.

An employment contract is an agreement between an employer and an employee, that is, a bilateral act. In the absence of one of the parties to the employment contract, it cannot be concluded. Thus, labor legislation does not apply to the relations of the sole participant of the company with the company founded by him.

The sole member of the company in this situation must, by his decision, assume the functions of the sole executive body - director, general director, president, etc. Management activities in this case, it is carried out without the conclusion of any contract, including labor.

This means that if the general director is the sole founder (participant, shareholder) of the organization, an employment contract with him as an employee is not concluded. After all, in relation to the general director, his employer is absent. This position seems to be erroneous and does not comply with both civil and labor legislation. Indeed, the provisions of articles 273-281 of the Labor Code of the Russian Federation, which regulate the work of heads of organizations, do not apply to the head - the sole founder of this organization (Article 273 of the Labor Code of the Russian Federation). However, such a leader is also an employee and, therefore, the general norms of the Labor Code apply to him. Moreover, the leaders - the only founders (participants) of organizations are not mentioned in the article of the Labor Code of the Russian Federation in the list of persons who are not covered by labor legislation. Yes, paragraph 3 of Article 182 of the Civil Code of the Russian Federation contains a rule prohibiting a representative of an organization from making transactions on behalf of the company in relation to himself personally. But according to paragraph 3 of Article 2 of the Civil Code of the Russian Federation, civil law does not apply to labor relations. Thus, the head, acting as the sole founder (participant, shareholder), is an employee and has the right to conclude an employment contract with himself on behalf of the organization.

This point of view is confirmed by the FSS of the Russian Federation in the Letter of December 21, 2009 N 02-09 / 07-2598P, which states that the Labor Code of the Russian Federation does not contain norms prohibiting the use of general provisions Labor Code of the Russian Federation to labor relations, when the employee and the employer are one person. An employment contract can be signed for both the employee and the employer by one person.

Until January 1, 2012, there was uncertainty about the possibility of concluding an employment contract in this situation. Rostrud in 2006 came to the conclusion that if the general director is the only participant in an LLC, an employment contract with the general director as an employee is not concluded (Rostrud Letter of December 28, 2006 N 2262-6-1). This was also confirmed by the Ministry of Health and Social Development of Russia, which, in its Letter dated August 18, 2009 N 22-2-3199, indicated that the head - the only founder of the organization cannot conclude an employment contract with this organization, since there is no one to sign such an agreement from the employer.

The absence of an employment contract with the manager resulted in problems related to the payment of sick leave and maternity benefits to the manager. However, on January 1, 2012, this issue was resolved at the legislative level. In pp. 1 p. 1 art. 2 of the Federal Law of December 29, 2006 N 255-FZ "On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Motherhood" an addition was made, in accordance with which persons working under employment contracts, including heads of organizations that are the sole participants (founders), members of organizations, owners of their property.

After the conclusion of the employment contract, an order is issued to hire the General Director. The order is signed by the CEO himself.

Based on the foregoing, we draw the following conclusions: in accordance with Art. 21 of the Labor Code of the Russian Federation, having entered into labor relations, the head of the organization, like any other employee, has the right to: conclude, change and terminate the employment contract; provision of work stipulated by the employment contract; workplace; timely and in full payment of wages; relaxation; protection of their labor rights, freedoms and legitimate interests by all means not prohibited by law; full reliable information about working conditions, etc. Consequently, the head of the organization is subject to the norms of labor legislation common to all employees.

The main difference between the legal status of the head of the organization is that, on the one hand, he represents the interests of the owner and performs the functions of the employer in relation to other employees of the organization he leads, and on the other hand, he himself is an employee. Important feature position of the director - an indefinite range of duties and increased responsibility of the party to the employment contract.

The basis of the responsibility of the head is the violation of not only labor legislation, but also civil, administrative, criminal. Due to non-fulfillment or improper fulfillment of the obligations stipulated by the contract, the employment contract with the head of the organization may be terminated. Features and upon dismissal own will- a longer warning period of one month.

The probationary period for employment for managers has also been extended to six months, which is necessary to test the level of qualifications and business qualities the most important person in the organization.

Let us briefly consider the regulation of labor of other categories of workers.

For employees who have concluded an employment contract for work in military units, institutions, military educational organizations higher education and military professional educational organizations, other organizations of the Armed Forces of the Russian Federation and federal executive bodies in which the legislation of the Russian Federation provides for military service, as well as for employees undergoing a replacement military service alternative civil service, labor legislation and other acts containing labor law norms apply, with the features established by the Labor Code, other federal laws and other regulatory legal acts of the Russian Federation.

In accordance with the tasks of bodies, institutions and organizations for employees, special conditions wages, as well as additional benefits and benefits.

For employees of the Pension Fund of the Russian Federation, the Fund social insurance Russian Federation, Federal Fund compulsory medical insurance, other organizations created by the Russian Federation on the basis of federal laws, organizations created to fulfill the tasks assigned to federal government bodies, in cases and okay, which are established by the Government of the Russian Federation, the restrictions, prohibitions and obligations established by the Federal law dated December 25, 2008 N 273-FZ "On Combating Corruption" and other federal laws in order to combat corruption.

Employees of the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund, other organizations established by the Russian Federation on the basis of federal laws, their spouses and minor children in cases provided for by the Federal law"On the prohibition of certain categories of persons to open and have accounts (deposits), keep cash and valuables in foreign banks located outside the territory of the Russian Federation, own and (or) use foreign financial instruments", it is prohibited to open and have accounts (deposits), keep cash and valuables in foreign banks located outside the territory of the Russian Federation, own and (or) use foreign financial instruments.

Consider some features of the regulation of the labor of medical workers

For medical workers, a reduced working time of no more than 39 hours per week is established. Depending on the position and (or) specialty duration working time of medical workers is determined by the Government of the Russian Federation.

Medical workers of healthcare organizations living and working in countryside and in urban-type settlements, the duration of part-time work may increase according to decision Government of the Russian Federation, adopted taking into account the opinion of the relevant all-Russian trade union and the all-Russian association of employers.

In order to implement programs state guarantees of free provision to citizens medical care in an emergency or urgent form to medical workers medical organizations with their consent, duty at home may be established.

Home duty - the stay of a medical worker of a medical organization at home waiting for a call to work (for the provision of medical care in an emergency or urgent form).

When taking into account the time actually worked by a medical worker of a medical organization, the time on duty at home is taken into account in the amount of one second hour of working time for each hour of duty at home. The total duration of the working hours of a medical worker of a medical organization, taking into account the time of duty at home, should not exceed the norm of working hours of a medical worker of a medical organization for the corresponding period.

Peculiarities working hours and accounting of working hours in the implementation medical workers medical organizations on duty at home are established federal body executive power, which performs the functions of developing state policy and legal regulation in the field of healthcare.

FEATURES OF THE EMPLOYMENT CONTRACT CONCLUDED WITH THE HEAD OF THE ORGANIZATION

E. Dolgova

Legal regulation of labor relations executives presents a certain difficulty, mainly because such workers simultaneously act as a representative of the employer in relation to other workers who are in labor relations with the organization. Features of labor regulation of the head of the organization, as well as members of the collegial executive body of organizations are reflected in Chapter 43 of the Labor Code of the Russian Federation and a number of articles placed in other chapters. Thus, the legislator emphasizes that the head of the organization is an employee with a special status.

The head of an organization is an individual who, in accordance with the law, the constituent documents of a legal entity (organization) and local regulatory legal acts, manages this organization, including performing the functions of its sole executive body (part 1 of article 273 of the Labor Code of the Russian Federation).

Due to the dual legal status of the head of the organization, the employment contract concluded with him is unique and has a number of distinctive qualities.

1. CONCLUSION OF AN EMPLOYMENT CONTRACT
The procedure for concluding an employment contract with the head of the organization is relatively detailed and depends on the specific organizational and legal form of the legal entity.

Labor legislation and other regulatory legal acts containing labor law norms, or the constituent documents of the organization may establish procedures prior to the conclusion of an employment contract with the head of the organization (holding a competition, election or appointment to a position, etc.).

Thus, the formation of the executive bodies of a joint-stock company is carried out by decision of the general meeting of shareholders, if the company's charter does not refer this issue to the competence of the board of directors (supervisory board) of the company.

The head of a limited liability company is elected by the general meeting of participants for a period determined by the charter of the company. At the same time, the leader may not be elected from among its participants. The charter of the company may provide that the formation of executive bodies falls within the competence of the board of directors (supervisory board) of the company.

The above provisions on the procedure for concluding an employment contract with the head of a limited liability company
applicable to the situation of concluding an employment contract with the head of an additional liability company. The heads of state and municipal unitary enterprises are appointed by the owner of the property of the unitary enterprise. At the same time, on behalf of the Russian Federation or a constituent entity of the Russian Federation, the rights of the owner of the property of a unitary enterprise are exercised by state authorities of the Russian Federation (subject of the Russian Federation), and on behalf of municipality- local self-government bodies. The appointment of heads of unitary enterprises is carried out on a competitive basis. This procedure is two-stage.

The first stage is carried out in the form of tests (in writing). At the second stage, proposals for the program of the enterprise's activities are considered. Relatively recently, a rule has appeared that when hiring the head of an organization, it is mandatory to obtain information about him from a special register - this is due to the fundamental novelty of the Code of the Russian Federation on administrative offenses(CAO RF), which introduced the new kind punishment - disqualification.

Particular attention should be paid to Article 14.23 of the Code of Administrative Offenses of the Russian Federation, which provides for liability in the form of an administrative fine for the implementation by a disqualified person of management activities legal entity, for concluding an agreement with a disqualified person for the management of a legal entity (50 minimum wages), as well as non-application of the consequences of terminating its actions (up to 1 thousand minimum wages).

When concluding a contract for the management of a legal entity, the person authorized to conclude the contract is obliged to request information on the presence of disqualification individual in the body maintaining the register of disqualified persons. The deadline for providing information contained in the register is 5 days from the date of receipt by the authorized federal body of the relevant request. Only after receiving this information is it possible to conclude an employment contract.

The specifics of the norms of the institution of an employment contract that regulate the work of the heads of the organization can be traced in the specifics of representation on behalf of the employer. The employment contract with the head on behalf of the joint-stock company is signed by the chairman of the board of directors (supervisory board) or a person authorized by him. On behalf of a limited company
the contract is signed by the person who chaired the general meeting of participants at which the head was elected, or a person authorized by the decision of the general meeting of participants of the company, or certain cases Chairman of the Board of Directors (Supervisory Board). When concluding an employment contract with the head of a unitary enterprise, the employer is represented by the head of the relevant executive authority in charge of the unitary enterprise.

2. CONTENT OF THE EMPLOYMENT CONTRACT
Traditionally, the content of an employment contract is understood as all its conditions that determine the rights, obligations and responsibilities of its parties. Both the general norms of the Labor Code contained in Section III and the special ones - Chapter 43 of the Labor Code of the Russian Federation are applied to the content of the employment contract with the head of the organization.

All terms of the employment contract are usually divided into mandatory and additional.

2.1. MANDATORY TERMS OF AN EMPLOYMENT CONTRACT
From the point of view of the general norms of the institution of an employment contract, an employment contract with the head of the organization must contain: the full name of the employee and the name of the employer who entered into the contract;

• information about the documents proving the identity of the employee;
• information about the representative of the employer who signed the employment contract, and the basis by virtue of which he is endowed with the appropriate authority;
• information about the place and date of conclusion this agreement, as well as all the mandatory conditions of any employment contract (part 2 of article 57 of the Labor Code of the Russian Federation).

The enumeration of these conditions, perhaps, would be redundant if it were not for certain features of their content regarding the contract concluded with the head of the organization.
Like any employment contract, the contract with the manager must contain a condition about the place of work. In accordance with the latest
the wording of the Labor Code, specifying the place of work (indicating the structural unit) is an additional condition of the contract, but, given that we are talking about the head of the organization, indicate structural subdivision there is no need, since the leader leads the entire organization as a whole.

When specifying the labor function and the name of the position, it is necessary to take into account the requirements of the law and constituent documents. For example, in accordance with Article 40 of the Federal Law "On Limited Liability Companies", the sole executive and administrative body may be called the general director or the president. An inaccurate or arbitrary title of the position of the head of the organization may subsequently create difficulties in determining his status, powers, including in relations with public authorities or other business entities.

The start date condition is as mandatory as for any other worker, but you should have
in mind that when determining the date of commencement of work, it is necessary to take into account the term or date of expiration of the powers of the previous head. Naturally, this is also necessary in order to avoid dual power, as well as to prevent misunderstandings related to the execution of power and administrative powers, especially in the financial and economic sphere. In addition, an employment contract with a manager may be concluded for a period established by the constituent documents of the organization or by agreement of the parties (Part 2 of Article 59 and 275 of the Labor Code of the Russian Federation). Consequently, the contract contains a condition on the duration of its validity, indicating the grounds for concluding it on an urgent basis.

The terms of remuneration of the head also differ in the originality of their establishment in the employment contract. As a rule, the leader is set official salary and all kinds of additional payments and allowances, including incentives, like all other employees. However, the employment contract may contain conditions for additional material incentives the head of the organization. For example, the contract may contain a condition on the participation of the head in the distribution of part of the profit, the establishment of remuneration based on the results of the organization's work for the year as a percentage of net profit. In case of reaching high economic indicators the contract may provide for the right of the head to receive a part of the company's shares, etc. At present, employment contracts with managers pay more and more attention to these issues. Thus, tasks are solved as increasing motivation to the maximum good governance property, and increasing labor productivity through an increase in the level of organization of labor and production.

The remuneration of the heads of organizations financed from the federal budget must be made in the manner and in the amount to be determined by the Government of the Russian Federation, in organizations financed from the budget of a constituent entity of the Russian Federation - by the state authorities of the corresponding constituent entity of the Russian Federation, and in organizations financed from local budget, - local governments (part 1 of article 145 of the Labor Code of the Russian Federation).

The mode of working time and rest time of the head of the organization is also determined by the terms of his employment contract. The law prohibits contractually worsening the position of an employee in comparison with the current legislation. This prohibition is fully applied when determining the relevant section of the employment contract with the head of the organization, however, a number of comments can be made here. Since the functions of the manager include the organization of the work of other employees, this requires additional time expenditures, including those that go beyond the normal working hours established by law. Besides, working time of the head is difficult (if at all) to strict accounting and rationing. Therefore, the employment contract of the head, as a rule, provides for the establishment of irregular working hours. It would seem that everything is clear, but Article 101 of the Labor Code of the Russian Federation defines an irregular working day as a special regime, in accordance with which the employee, by order of the employer, if necessary, episodically performs his labor functions outside of their working hours. Naturally, with regard to the work of the manager, one does not have to talk about any order of the employer and illusory episodic nature: the manager not only organizes the work of others, but also organizes his own work, moreover, independently and in accordance with the goals and tasks set for him, related to the maximum effective work the entire organization.

Taking into account that the employment contract determines the features of the manager's working hours, it must undoubtedly contain special conditions regarding rest time, namely vacations. The vacation of the head consists, as usual, of the main and additional. The main annual paid leave may be established by agreement for a duration exceeding the usual 28 calendar days(extended main leave). The employer, taking into account his production and financial capabilities, may establish an annual additional paid leave for the head of the organization.

Besides, additional leave may be provided for irregular working hours and other special working conditions.

Also, these contracts often contain conditions on the amount of material assistance allocated to the head for the main paid leave for rest and treatment (including sanatorium and resort).

Characteristics of working conditions and the nature of work, as a rule, are omitted in the content of an employment contract with a supervisor
organizations as opposed to employment contracts with other employees. This, of course, is due to the absence of unfavorable production factors directly at the workplace. As for the costs of psychological and mental stress, they are traditionally offset by the presence in such an agreement of additional conditions of a material and domestic nature.

The condition of compulsory social insurance is also prerequisite any employment contract.

2.2. ADDITIONAL TERMS OF THE EMPLOYMENT CONTRACT

Additional terms of an employment contract with a manager can be either quite traditional, for example, a condition on a probationary period, or special, peculiar only to this type of employment contract.

An employment contract with a manager, as with any other employee, may contain a condition on a probationary period. However, a test for heads of organizations may be provided for up to six months (Part 5 of Article 70 of the Labor Code of the Russian Federation). However, a test for employment cannot be established for persons elected to an elective position for paid work, and for persons entering a job through competition, therefore it seems that the rules regarding the six-month period probationary period for the leaders of the organization will not find practical application.

The employment contract with the manager includes a condition on non-disclosure of legally protected secrets (state, commercial and official). Such a condition seems to be quite justified, since it is the manager, by the nature of his activity, who has unlimited access to any confidential information, the disclosure of which can lead to serious property damage.

The employment contract with the head of the organization must provide for his obligations to ensure the protection of the confidentiality of information owned by the organization and its counterparties, and responsibility for ensuring the protection of its confidentiality (part 6 of Article 11 of the Federal Law "On Trade Secrets"). The responsibility of the manager for the disclosure of trade secrets is stricter than that of other employees: the manager compensates for the losses caused to the organization. In this case, losses are determined in accordance with civil law (Part 7 of Article 11 of the Federal Law “On Trade Secrets”). However, it should be noted that this provision becomes invalid as of January 1, 2008 (Article 34 of Federal Law No. 231-FZ of December 18, 2006).

In addition to the types of compulsory social insurance common to all employees (pension, medical, etc.), more and more often, in an agreement with the head of an organization, one can also find conditions for additional (optional) insurance, for example, life and health insurance, accident insurance, etc. an employment contract may provide for insurance not only for the employee himself, but also for the immediate members of his family.