1. The mandatory written form of an employment contract was established in 1992. According to the Labor Code in its original version, an employment contract could be concluded both in written and oral form. The Labor Code provides only for a written form of employment contract.
An employment contract that is not formalized in writing is considered concluded if the employee began work with the knowledge or on behalf of the employer or his authorized representative. Consequently, failure to comply with the form of the employment contract does not entail the invalidity of the latter: the contract is considered concluded from the moment the employee begins work. From the same moment, the employment contract is considered to have entered into force (see Article 61 of the Labor Code of the Russian Federation and the commentary thereto).
At the same time, the contract is considered concluded and entered into force only if the employee began work with the knowledge or on behalf of the employer or his authorized representative.
The representative of the employer in this case is a person who, in accordance with the law, other regulatory legal acts, constituent documents of a legal entity (organization) or local regulations, or by virtue of an employment contract concluded with this person, is vested with the authority to hire employees, since in this case when an employee is actually allowed to work with the knowledge or on behalf of such a person, an employment relationship arises (Art.
16 of the Labor Code of the Russian Federation) and the employer may be required to formalize an employment contract with this employee in a proper manner (clause 12 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”). This rule was introduced in order to protect the employer from actions of its employees beyond the scope of their competence. However, this rule threatens the interests of the employee, since it is not always obvious to him whether the person allowing him to work is acting within the limits of his competence or, conversely, arbitrarily.
Current legislation obliges the employer, when actually admitting an employee to work, to draw up an employment contract with him in writing no later than three working days from the date of actually admitting the employee to work (Part 2 of the commented article). Failure to fulfill this obligation, which has a clearly public legal nature, is the basis for administrative liability of the relevant official of the employer (Article 5.27 of the Administrative Code). Failure of the specified person to fulfill the obligation to draw up an employment contract serves as the basis for bringing him to disciplinary liability.
2. The law does not provide for a single mandatory form of an employment contract, therefore it can be drawn up in any form acceptable to the parties. To simplify the determination of details and the formulation of the main terms of the contract in employing organizations, it is advisable to develop a standard (unified) form (form) of an employment contract, filled out by the parties when concluding it, as an annex to the internal labor regulations in force in the organization or to a collective agreement. The presence of a unified form of an agreement does not exclude the possibility of its conclusion in a different form.
When concluding an employment contract for work in the Far North, it is advisable to be guided by the Recommendations for concluding an employment agreement (contract), reflecting the specifics of regulating social and labor relations in the conditions of the North, approved. Resolution of the Ministry of Labor and Social Development of the Russian Federation dated July 23, 1998 No. 29.
Currently, a number of federal departments have approved standard forms of employment contracts that reflect the specifics of the use of labor in the organizations (institutions) of these departments.
3. The employment contract is drawn up in two copies, each of which is signed by the parties. One copy of the contract is given to the employee, the other is kept by the employer, and the receipt by the employee of a copy of the employment contract must be confirmed by the employee’s signature on the copy of the contract kept by the employer. Failure to comply with this rule does not entail the invalidity of the employment contract.
Thus, the number of copies of an employment contract is regulated by law in a mandatory manner. The parties have the right to draw up copies of the agreement subject to the restrictions established by Chapter. 14 of the Labor Code of the Russian Federation (see Chapter 14 of the Labor Code of the Russian Federation and commentary thereto). At his request, the employer is obliged to provide the employee with a copy of the employment contract according to the rules established by the Labor Code of the Russian Federation (see Article 62 of the Labor Code of the Russian Federation and the commentary thereto).
4. An employer - an individual who is not an individual entrepreneur - is obliged to register a written agreement with an employee in the relevant local government body (see Article 303 of the Labor Code of the Russian Federation and the commentary thereto).
Another comment on Article 67 of the Labor Code of the Russian Federation
In order for the parties to reach an agreement and thereby conclude a contract, it is necessary that at least one of them makes an offer to conclude a contract, and the other accepts this offer. Therefore, the conclusion of an agreement goes through two stages (Diagram 4). The first stage is called offer, and the second - acceptance. In accordance with this, the party making an offer to conclude a contract is called the offeror, and the party accepting the offer is called the acceptor. The contract is considered concluded when the offeror receives acceptance from the acceptor.
At the same time, not every proposal to conclude an agreement acquires the force of an offer. Proposal recognized as an offer:
1) must be sufficiently definite and express the clear intention of the person to enter into an agreement;
3) must be addressed to one or more specific persons.
Acceptance the consent of the person to whom the offer is addressed to accept this offer is recognized, and not just any consent, but only that which is complete and unconditional. If consent in principle to the proposal to conclude an agreement is accompanied by any additions or changes to the conditions contained in the offer, then such consent does not have the force of acceptance.
An important issue when concluding contracts is about the time and place of conclusion of the contract. The legislation in force at the time of its conclusion in the territory where it was concluded is applied to contractual relations. The agreement is considered completed at the moment when the offeror receives the consent of the acceptor. This moment is recognized as the time of conclusion of the contract. A different rule is established for real contracts, the conclusion of which requires not only the agreement of the parties, but also the transfer of property. Such agreements are considered concluded from the moment of transfer of the relevant property.
Finally, an agreement subject to state registration is considered concluded from the moment of its registration, unless otherwise provided by law.
If the contract does not indicate the place of its conclusion, the contract is recognized as concluded at the place of residence of the citizen or at the location of the legal entity that sent the offer.
Also of great importance is the question of the beginning and end of the contract. The agreement comes into force and becomes binding on the parties from the moment of its conclusion. At the same time, the parties have the right to establish that the terms of the agreement they have concluded apply to their relations that arose before the conclusion of the agreement.
As a general rule, the expiration of a contract only terminates its effect when the parties have properly fulfilled all their obligations. If at least one obligation arising from the contract is not properly fulfilled, then the latter does not terminate its validity even after the expiration of the period for which the contract was concluded. At the same time, the law or contract may provide that the expiration of the contract entails the termination of the obligations of the parties under the contract.
Finally, the expiration of the contract does not relieve the parties from liability for its violation. Thus, the supplier is responsible to the buyer for defects in the delivered goods even after the expiration of the supply contract.
Conclusion of a contract is mandatory
This procedure applies in cases where the conclusion of an agreement is mandatory for one of the parties by force of law, i.e. when concluding binding contracts. The party interested in concluding an agreement, for whom its conclusion is not obligatory, sends to the other party, for whom concluding an agreement is obligatory, a draft agreement (offer). The party for whom the conclusion of the contract is obligatory must, within 30 days from the date of receipt of the offer, review it and send the other party one of the following types of notices:
- about acceptance;
— on acceptance of the offer on other terms (protocol of disagreements to the draft agreement);
- about refusal of acceptance.
The draft agreement can also be submitted by the party for whom the conclusion of the agreement is mandatory. In this case, the other party, for whom the conclusion of the contract is not obligatory, has the right to send one of the following types of notices to the other party within 30 days:
- about acceptance;
- refusal of acceptance;
— on acceptance of the offer on other terms (protocol of disagreements to the draft agreement).
If a party for whom the conclusion of a contract is obligatory unreasonably evades its conclusion, then it must compensate the other party for the losses caused by this.
Conclusion of a contract at auction
The essence of this method of concluding an agreement is that the agreement is concluded by the organizer of the auction with the person who won the auction. Any agreement can be concluded in this way, unless otherwise follows from its essence.
The organizer of the auction may be the owner of the thing or the holder of property rights, or a specialized organization. The latter acts on the basis of an agreement with the owner of the thing or the holder of property rights and can act on their behalf or on its own behalf.
Trades can be carried out in the form auction or competition. The winner of the auction is the person who offered the highest price, and in the competition - the person who, according to the conclusion of the competition commission, pre-appointed by the auction organizer, offered the best conditions. The form of bidding is determined by the owner of the item being sold or the owner of the property right being sold, unless otherwise provided by law.
The person who wins the auction and the auction organizer sign on the day of the auction or competition a protocol on the results of the auction, which has the force of a contract.
The employment contract is concluded in writing, drawn up in two copies, each of which is signed by the parties. One copy of the employment contract is given to the employee, the other is kept by the employer. The employee’s receipt of a copy of the employment contract must be confirmed by the employee’s signature on the copy of the employment contract kept by the employer.
An employment contract that is not formalized in writing is considered concluded if the employee began work with the knowledge or on behalf of the employer or his authorized representative. When an employee is actually admitted to work, the employer is obliged to draw up an employment contract with him in writing no later than three working days from the date of the employee’s actual admission to work, and if relations related to the use of personal labor arose on the basis of a civil law contract, but were subsequently recognized as labor relations - no later than three working days from the date of recognition of these relations as labor relations, unless otherwise established by the court.
When concluding employment contracts with certain categories of workers, labor legislation and other regulatory legal acts containing labor law norms may provide for the need to agree on the possibility of concluding employment contracts or their terms with the relevant persons or bodies that are not employers under these contracts, or to draw up employment contracts in more copies.
1. An employment contract can only be concluded in writing, in two copies, signed by the parties to the employment contract and kept by both parties.
2. An example of concluding an employment contract in a larger number of copies is an employment contract with the head of a federal state unitary enterprise, which requires approval from the Ministry of Economic Development of Russia (see Sample employment contract with the head of a federal state unitary enterprise, approved by Order of the Ministry of Economic Development of Russia dated March 2, 2005 N 49 // BNA RF. 2005. N 23).
3. Specific employment contracts can be drawn up in any form, but with mandatory consideration of the provisions of Art. 57 of the Labor Code on the content of the employment contract (see commentary to this article).
4. When concluding an employment contract, you can use the Recommendations for concluding an employment contract with an employee of a federal budgetary institution and its approximate form, approved by Order of the Ministry of Health and Social Development of Russia dated August 14, 2008 N 424n “On approval of Recommendations for concluding an employment contract with an employee of a federal budgetary institution and his in approximate form" (Bulletin of Labor and Social Legislation of the Russian Federation. 2008. No. 10).
Appendix No. 1 to this Order provides an approximate form of an employment contract with an employee of a federal budgetary institution, consisting of a preamble (where the number of the employment contract, the place and time of its conclusion must be indicated) and 3 sections.
Section 1 “General Provisions” names the position, profession or specialty, indicating qualifications or the specific type of work assigned; the full name of the branch, representative office is given if the employee is hired by a specific branch, representative office or other separate structural unit of the employer, indicating its location. It should be noted whether the employee’s job is primary or part-time. The period for which the employment contract is concluded must also be established: for an indefinite period, for a specific period (specify the duration) or for the duration of certain work, indicating the reasons (grounds) for concluding a fixed-term employment contract in accordance with Art. 59 Labor Code of the Russian Federation.
If an employee is hired on a probationary period, its duration (months, weeks, days) is indicated.
Section 2 outlines the rights and responsibilities of the employee, and Section 3 outlines the rights and responsibilities of the employer. Basically, the rights and obligations of the parties to the employment contract, enshrined in Art. Art. 21 and 22 of the Labor Code of the Russian Federation.
5. For certain categories of workers, a special form of employment contract is provided (see, for example, the Resolution of the Ministry of Labor of Russia dated July 23, 1998, which approved Recommendations for concluding an employment agreement (contract), reflecting the specifics of regulating social and labor relations in the North, and Sample employment agreement (contract) with an employee hired to perform work in the Far North and equivalent areas // Bulletin of the Ministry of Labor of the Russian Federation, 1998.
Order of the Ministry of Economic Development of Russia dated March 2, 2005 N 49 approved a sample employment contract with the head of a federal state unitary enterprise (BNA RF. 2005. N 23).
The above documents are applied to the extent that they do not contradict the Labor Code of the Russian Federation.
6. An employment contract that is not properly drawn up is considered concluded if the employee began work with the knowledge or on behalf of the employer or his representative. At the same time, the employer is entrusted with the obligation to properly formalize an employment contract with this employee (see paragraph 12 of the Resolution of the Armed Forces of the Russian Federation of March 17, 2004 No. 2).
1. Until September 25, 1992, the parties to an employment contract themselves chose in what form they would enter into an employment contract (oral or written). However, since October 6, 1992, the legislator established that an employment contract is concluded only in writing, which, of course, is a reliable guarantee against possible disputes related to understanding its content. However, during the period from October 6, 1992 to July 14, 1993, certain difficulties arose in practice, since the written form of the employment contract was interpreted differently. In this regard, many controversial issues arose when concluding an employment contract.
2. Edition of Art. 67 of the Code provides for the mandatory conclusion of an employment contract in writing. At the same time, the intention of the legislator is obvious - to increase the level of legal guarantees for workers. In the new economic conditions, when legislation provides only initial levels of rights, benefits and advantages of workers, and their specific levels are established in agreements, collective agreements and individual contracts, it is very important that the agreements reached are recorded in the written text of the contract.
A written employment contract is completed in two copies, signed by both parties and kept by each party to the contract. The legislator does not link compliance with the written form with a specific type of contract, therefore a written employment contract is concluded with both permanent and temporary employees at the main place of work and part-time workers, with homeworkers, etc.
3. In accordance with Part 2 of Art. 67 of the Code, upon actual admission of an employee to work, the employer is obliged to draw up an employment contract with him in writing no later than three days.
4. The current labor legislation does not provide for a single mandatory form of an employment contract. The parties themselves determine the form of the agreement in each specific case.
On July 14, 1993, the Resolution of the Ministry of Labor of the Russian Federation approved the Recommendations for concluding an employment contract in writing and its approximate form (Bulletin of the Ministry of Labor of the Russian Federation. 1993. N 9 - 10).
A written employment contract is concluded upon hiring. Written registration of the labor relations of persons previously hired is carried out only with their consent.
5. In cases where the employment contract was not properly drawn up, but the employee began work with the knowledge or on behalf of the employer or his authorized representative, the employment contract is considered concluded and the employer or his authorized representative is obliged no later than three days from the date of actual acceptance to work, draw up an employment contract in writing (Part 2 of Article 67 of the Labor Code of the Russian Federation). It should be borne in mind that the representative of the employer in this case is a person who, in accordance with the law, other regulatory legal acts, constituent documents of a legal entity (organization) or local regulations, or by virtue of an employment contract concluded with this person, is empowered to hiring workers, since it is in this case that when an employee is actually allowed to work with the knowledge or on behalf of such a person, an employment relationship arises (Article 16 of the Labor Code of the Russian Federation) and the employer may be obligated to formalize an employment contract with this employee in a proper manner.
TEST
ON THE TOPIC OF:
EMPLOYMENT CONTRACT, ITS CONTENT AND PROCEDURE FOR CONCLUSION
Completed the work: Giniyatova A.F.
I checked the work:
Khairutdinova Gulnara Askarovna
Kazan-2008
Employment contract, its contents and procedure for conclusion
1.1 The concept of an employment contract
An employment contract is an agreement between an employee and an employer regarding the employee’s performance of a job function, subject to internal labor regulations, payment of wages and ensuring safe working conditions.
Main functions of an employment contract:
1. An employment contract is a social regulator: it is a factor in the formation of a system of economic relations, and in legal terms, a factor in the formation of the rule of law in the sphere of labor, and as such represents an element of objective law.
As a legal fact, an employment contract ensures the emergence of a legal connection between the employer and the employee.
3. In personal terms, an employment contract acts as a factor ensuring the realization of a person’s ability to work.
4. As a result of coordinating the interests of two parties - the employee and the employer - the employment contract is a source of subjective labor rights and obligations of these parties.
5. Since the freedom to control a person’s ability to work has now been proclaimed and legally ensured, an employment contract as a legal expression of the coordination of the interests of its parties accordingly acts as an alternative to forced labor.
1.2 Contents of the employment contract
Mandatory conditions include:
1. Full name of the employee
2. place of work indicating the structural unit where the employee is hired
3. labor functions indicating specialty and qualifications
4. salary indicating the salary amount
5. social guarantees, including additional ones, which are provided for by local regulations
6. start date of work and term of the employment contract, if it is of a fixed-term nature
7. employee’s work and rest schedule (in relation to a certain category of employees)
Art. 57 TCRF provides for other conditions that are considered essential.
Additional (optional) terms of the employment contract are established at the initiative of the parties. Such conditions include:
1. Characteristics of working conditions, types and amounts of compensation and benefits to employees for working in difficult, harmful and dangerous conditions may be determined by state standards or collective agreements (agreements).
2. Conditions on the employee’s work and rest schedule. If this condition is determined by the current internal labor regulations of the organization, the employee must be familiar with these rules, in that case, regarding the work and rest regime. If the parties personalize this regime in relation to a given employee (for example, they establish part-time work, a sliding work schedule), then this condition must be stipulated in the employment contract.
3. As follows from the Labor Code of the Russian Federation, an employment contract may provide for conditions on probation, on non-disclosure of secrets protected by law (state, official, commercial), on the employee’s obligation to work after training for at least the period established by the contract, if the training was carried out at the expense of the employer
4. The current Labor Code of the Russian Federation interprets the rights and obligations of the employee and the employer as essential terms of the employment contract. By agreeing in the employment contract such conditions as the labor function of this particular employee, his salary, non-disclosure of trade secrets, etc., the parties thereby assumed the corresponding rights and obligations.
Thus, an employee is obliged to work in a certain specialty, qualification or position, not to disclose trade secrets, and at the same time, he has the right to receive the stipulated salary on a timely basis, and to refuse to perform work outside the scope of his job function. In turn, the employer is obliged to provide the employee with work according to the labor function stipulated by the employment contract, pay for his work and has the right to receive work of a certain type and quality from the employee.
Thus, all the rights and obligations of the employee arising in relation to the conditions for the use of the employee’s labor determined by the employment contract are characteristic only of this employment contract and are of a special nature.
Other rights and obligations are not personalized and the employment contract only individualizes them in relation to a given employment relationship. Such general rights and obligations are, for example, the employee’s obligation to come to work on time and the right to take a prescribed lunch break.
1.3 The procedure for concluding an employment contract
The procedure for concluding an employment contract has several stages.
1. Preliminary negotiations on the terms of the employment contract, preparation of the necessary documents.
2. registration of the reached agreement
3. passing the preliminary test
Required documents:
1. passport
2. work book
3. diploma of education, if the employee requires special knowledge and skills
4. military ID
5. certificate of state pension insurance
6. medical book for certain categories of workers (Article 65 of the Labor Code of the Russian Federation)
In a number of cases, the conclusion of an employment contract with certain categories of employees is preceded by the need, dictated by law, to carry out certain actions and prepare the relevant documents. The conclusion of an employment contract is possible subject to the availability of three documents: on passing professional selection, professional training and a preliminary medical examination carried out in a special manner.
The employment contract is concluded in writing in two copies. An employment contract can be concluded for an indefinite period, or can also be of an urgent nature (Article 59 of the Labor Code of the Russian Federation).
The employment contract comes into force from the moment it is signed by the parties. The employee is obliged to begin work from the date specified in the contract. Hiring is formalized by order of the head of the organization.
The order must contain all the essential terms of the contract. The employee must be familiarized with the hiring order against signature within three days from the date of publication. At the request of the employee, the employer is obliged to provide him with a certified copy of the said order.
When hiring, the employer is obliged to familiarize the employee with the internal labor regulations in force in the organization, other local regulations related to the employee’s labor function, and the collective agreement.
It is prohibited to refuse to conclude an employment contract to women for reasons related to pregnancy or the presence of children.
It is prohibited to refuse to conclude an employment contract to employees invited in writing to work by way of transfer from another employer, within one month from the date of dismissal from their previous place of work.
At the request of a person who is refused to conclude an employment contract, the employer is obliged to provide the reason for the refusal in writing. Refusal to conclude an employment contract can be appealed in court.
Finally, the employer is obliged to conclude an employment contract with a person entering work within the established quota of jobs.
If an employer doubts an employee’s business qualities, he has the right to set him on a probationary period, which cannot exceed three months. For the manager, his deputies and the chief accountant – the period is six months. For certain categories of employees, a probationary period is not established: minors, the first year after university, after transfer to the same position. During the probationary period, an employee can be dismissed at his own request by notifying the employer three days in advance.
Before the expiration of the probationary period, the employer has the right to dismiss the employee as having failed to pass the test, warning the employee three days in writing.
The employer is obliged to create a work book for each employee who has worked in the organization for more than five days (Article 66 of the Labor Code of the Russian Federation). The work book contains information about hiring and termination of the employment contract with reference to the law.
About the center » On the peculiarities of concluding employment contracts with employees accepted into the branch of the organization.
List of all questions and answers
A budget institution is a branch of a legal entity and operates on the basis of powers of attorney and regulations on the branch, which state that the director of the branch hires and fires employees, signs employment contracts, applies incentive measures and imposes disciplinary sanctions in accordance with the current Labor Code of the Russian Federation. Article 20 of the Labor Code of the Russian Federation states that the Employer is a legal entity, and Article 55 of the Civil Code of the Russian Federation states that the branch is guided by the provisions of the legal entity.
Does the director of a branch have the right to formalize labor relations with employees on his own behalf and using the seal of the branch based only on the above documents?
How to properly organize the work of recording, maintaining and storing work books of branch employees?
What regulatory documents should regulate the branch's personnel records management?
Dear Zarina!
According to Article 55 of the Civil Code of the Russian Federation, a branch is a separate division of a legal entity located outside its location and performing all or part of its functions.
Accordingly, the head of a legal entity has the right to determine the need and advisability of transferring to the branch all or part of the functions related to the hiring and dismissal of branch employees, issuing orders related to labor activities, registration and storage of work books and other personnel issues.
If an organization has several branches and they are geographically dispersed, centralized document flow on personnel issues creates inconvenience, and also, in some cases, does not allow meeting the deadlines established by the Labor Code of the Russian Federation.
In these cases, it is advisable to transfer the authority to resolve personnel issues directly to the branches, which should be reflected in the Regulations on branches and the corresponding powers of attorney issued to the heads of the branches.
In such a situation, in a power of attorney addressed to the head of the branch, it is advisable to specify in detail (specifically) the rights, for example, to:
In these cases, when accepting an employee to a branch of the organization, an employment contract is concluded with him, which is signed by the head of the branch on the employer’s part.
In this case, the employer will not be a branch of the organization, because he is not a legal entity, but the organization itself.
That is, the preamble of an employment contract with a branch employee must indicate that on the employer’s part, the contract is concluded by the head of the branch, acting on the basis of a power of attorney, indicating its details (number, date, etc.).
The details of the employment contract reflect the data of the legal entity itself.
The corresponding entries must also be in the work book of the employee of the organization’s branch.
When hiring an employee to a branch or transferring him from one position to another, there are no special difficulties with paperwork, because in these cases, entries in the work book do not require certification with a seal.
However, there are certain difficulties with registering work books in branches of organizations in cases of hiring people who previously did not have work books, as well as when dismissing employees.
In these cases, entries in work books must be certified with seals.
According to Decree of the Government of the Russian Federation dated April 16, 2003 No. 225 “On work books” and the Instructions for filling out work books, approved by Decree of the Ministry of Labor of Russia dated October 10, 2003 No. 69 “On approval of instructions for filling out work books”, entries in work books are certified only seal of the organization (personnel service of the organization), but not the branch.
To resolve this problem, the organization can formalize a procedure by order and set deadlines for the transfer of work books from the branch to the parent company and back to certify entries in work books with the seal of the organization (or personnel service), taking into account compliance with the deadlines established by the Labor Code of the Russian Federation, for example, deadlines issuing a work book in connection with dismissal, etc.
If it is impossible to organize an operational procedure for transferring work books to the organization itself and back to the branch, in practice there are cases when the parent company provides the branches with the appropriate seals, which are transferred to the heads of the branches on the basis of an order from the head of the organization.
The procedure for using such seals is established by a local act (regulation, procedure) approved by the head of the enterprise.
If the organization has branches, it is necessary to draw up the relevant documents as completely and thoroughly as possible: power of attorney for the head of the branch, regulations on the branch, order appointing a person responsible for maintaining and storing work books, storing the seal, etc.
The organization also needs to provide its branches with copies of the constituent documents of the organization itself, and its local regulatory documents (internal labor regulations, instructions on labor protection, personnel records, regulations on wages, business trips, etc.), which are approved by the head of the organization and which must be presented to employees for review, including when applying for a job.
1. Written form of the employment contract in accordance with Part 1 of Art. 67 of the Labor Code of the Russian Federation is mandatory.
Concluding an employment contract in writing means that the employee and the employer draw up a special document - an agreement, which reflects the names of the parties, the mandatory conditions of the employment contract, incl. labor function, other working conditions (see commentary to Article 57). This agreement is drawn up in two copies, each of which is certified by the signature of the employee and the representative of the employer or the employer - an individual.
One copy of the employment contract is given to the employee, the other is kept by the employer. The fact that the employee received one copy of the employment contract must be confirmed by the employee’s signature on the copy of the employment contract kept by the employer. This rule is aimed at protecting the interests of both employees and the employer.
Legislation and other regulatory legal acts containing labor law norms, when concluding employment contracts with certain categories of workers, may provide for the need to agree on the possibility of concluding employment contracts or their terms with the relevant persons or bodies that are not employers under these contracts, or to draw up employment contracts in a larger number of copies (Part 3 of Article 67 of the Labor Code of the Russian Federation).
A written form of an employment contract is required both at the main place of work and when applying for a part-time job. In this case, it does not matter where the employee goes for part-time work - to the same employer for whom the work he performs is the main one, or to another employer.
2. Current legislation does not establish a general (unified) standard form of a written employment contract. In each specific case it is determined arbitrarily. However, when concluding an employment contract, it is necessary to take into account the provisions of Art. 57 of the Labor Code on the contents of the employment contract (see commentary to it).
As the basis for developing the form of a written employment contract, many organizations use the Recommendations for concluding an employment agreement (contract) in writing and the Sample form of an employment agreement (contract), approved. Resolution of the Ministry of Labor of Russia of July 14, 1993 N 135 (Bulletin of the Ministry of Labor of Russia. 1993. N 9 - 10)<1>.
For some categories of workers, taking into account the specifics of their work, the relevant ministries have approved sample forms of written employment contracts. Thus, Resolution of the Ministry of Labor of Russia dated July 23, 1998 N 29 approved Recommendations for concluding an employment agreement (contract), reflecting the specifics of regulating social and labor relations in the North, and a sample employment agreement (contract) with an employee hired to perform work in the regions The Far North and equivalent areas (Bulletin of the Ministry of Labor of Russia. 1998. No. 9). Order of the Ministry of Economic Development of Russia dated March 2, 2005 N 49 approved a sample employment contract with the head of a federal state unitary enterprise (BNA RF. 2005. N 23). Order of the Ministry of Health and Social Development of Russia dated August 14, 2008 N 424n approved the Recommendations for concluding an employment contract with an employee of a federal budgetary institution and its approximate form.
Since all of these acts were adopted at different times, incl. and before the entry into force of Federal Law No. 90-FZ of June 30, 2006, they should be applied only to the extent that does not contradict the Labor Code as amended by the said Law.
3. Responsibility for compliance with the procedure for concluding an employment contract rests with the head of the organization. The employee does not bear any responsibility for the fact that the employment contract with him is not drawn up in writing or is executed improperly, or an order for his employment has not been issued.
In order to avoid unfavorable consequences for the employee caused by violation of the procedure for concluding an employment contract, Part 2 of Article 67 of the Labor Code of the Russian Federation provides that if the employment contract was not properly drawn up, but the employee actually began work with the knowledge or on behalf of the employer or his authorized representative, then the employment contract is considered concluded and the employer or his authorized representative is obliged no later than 3 working days from the date of actual admission to work to draw up the employment contract in writing.
It should be borne in mind that the representative of the employer in this case is a person who, in accordance with the law, other regulatory legal acts, constituent documents of a legal entity (organization) or local regulations, or by virtue of an employment contract concluded with this person, is empowered to hiring workers, since it is in this case that when an employee is actually allowed to work with the knowledge or on behalf of such a person, an employment relationship arises (Article 16 of the Labor Code) and the employer may be obligated to formalize an employment contract with this employee properly (Clause 12 of the Resolution Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2).
As a rule, hiring an employee is accompanied by the conclusion of an employment contract. All relations related to the conclusion, amendment and termination of an employment contract are regulated.
An employment contract is an agreement between an employer and an employee, according to which the employer undertakes to provide work, ensure working conditions and pay for it on time, and the employee undertakes to perform the work for which he was hired, observing the rules of the routine established by the employer -.
The employment contract must necessarily contain the following information:
This information is mandatory, but its absence cannot be grounds for termination of the employment contract. The missing information is included in the contract itself, and the missing conditions are included in the annex to the contract -.
The employment contract must be concluded in writing and signed in two copies, one of which remains with the employee, and the second is kept by the employer. The issuance of a copy of the agreement is certified by the employee’s signature on a copy of the employer’s agreement.
Important! If the employment contract was not drawn up in writing, but the employee began to perform his duties with the knowledge and permission of the employer, then such an agreement is considered concluded -.
A probationary period for employment can only be established by agreement of the parties. If the contract does not contain conditions for a probationary period, then the employee is considered hired without a trial -.
If an employee was hired without drawing up an employment contract, then the condition of his probation may be established by a separate agreement concluded before the start of work.
During the probationary period, the employee has all the rights provided for by law, regulations, agreements and contracts containing labor law norms.
A probationary period cannot be assigned:
The probationary period for ordinary employees cannot be set for more than 3 months. For managers, chief accountants and their deputies, as well as heads of branches and representative offices, the maximum probationary period is 6 months.
If the term of the employment contract does not exceed six months, then the probationary period cannot exceed 2 weeks. The probationary period does not include the period the employee is on sick leave, as well as the period of his absence from work.
When hiring, the employer has the right to require the following documents:
Important! The law prohibits, when applying for a job, from requiring additional documents not provided for by the Labor Code of the Russian Federation, Federal laws, as well as presidential decrees and Government resolutions.
If a person gets a job for the first time, the employer himself issues a work book. If the book is lost, the employer is obliged to replace it upon a written request from the employee.
The agreement is considered concluded from the date of its signing. The employee is obliged to begin performing his duties from the date specified in the contract. If the date was not specified by the agreement, then the next day after signing the agreement.
If the employee does not begin his duties on the day specified in the contract, then the employer has the right to cancel the contract. A canceled contract is considered invalid -.
_____________ “____”______________201__
LLC "Firm" represented by the director ____________________________, acting on the basis of the Charter, hereinafter referred to as the "Employer", on the one hand, and citizens ________________________________________________________________________________, hereinafter referred to as the "Employee", on the other hand, have entered into this agreement as follows:
1.1. An employee is hired at Firma LLC at the address: ___________________________________________ for the position ___________________________________________________________________.
1.2. The employee is obliged to start work from “____”_______________201___.
1.3. The employee is given a probationary period of ____________months.
The probationary period does not include the period of temporary disability and other periods when the Employee, with the permission of the Employer, was absent from work for valid reasons, as well as absence from work without a valid reason (absenteeism).
The Employee who has passed the test continues to work without any additional registration.
If the test result is unsatisfactory, the Employee is released (dismissed) from work on the basis of an order from the Employer.
1.4. During the probationary period, the Employee is fully subject to the labor legislation of the Russian Federation.
1.5. This agreement is concluded for an indefinite period.
1.6. Work for the Employer is the Employee’s main place of work.
2.1. The employee undertakes:
2.1.1. Perform job duties specified in the job description.
2.1.2. Maintain labor, production and financial discipline and conscientiously perform their official duties specified in clause 2.1.1 of this employment contract.
2.1.3. Obey the internal labor regulations, including observing the daily routine established in the institution.
2.1.4. Treats the Employer's property with care, including equipment and office equipment in his use, and ensures the safety of the documentation entrusted to him.
2.1.5. Do not disclose during the period of employment with the Employer, as well as in the subsequent year after dismissal, data that is a trade secret of the Employer and confidential information obtained in the course of one’s employment.
2.1.6. Carry out efficiently and in a timely manner the instructions, tasks and instructions of the director of the institution given by him in accordance with his competence.
2.1.7. Comply with labor protection, safety and industrial sanitation requirements.
2.1.8. Contribute to the creation of a favorable production and moral climate, the development of corporate relations in the Employer’s workforce.
2.1.9. If the information entered on the card changes (family composition, passport data, residential and registration address, contact phone number, etc.), notify the Employer within 2 days.
2.2. The employee has the right:
2.2.1. Familiarize yourself with the Employer’s regulatory documents regulating the Employee’s activities.
2.2.2. For the provision of work stipulated by this agreement.
2.2.3. To a workplace that meets the conditions of state standards and labor safety.
2.2.4. For annual paid vacations (main and additional) in accordance with the Labor Code of the Russian Federation and the vacation schedule.
2.2.5. For timely and full payment of wages in accordance with your position, qualifications, conditions, complexity of work and quality of work performed.
2.3. The employer undertakes:
2.3.1. Comply with the terms of this employment contract, requirements and laws governing the work of employees.
2.3.2. Provide the Employee with the conditions necessary for safe and effective work, equip his workplace in accordance with labor protection and safety regulations.
2.3.3. Pay wages stipulated by this employment contract and other payments due to the Employee on time.
2.3.4. Provide guarantees and compensation established by the current legislation of the Russian Federation and the Republic of Kazakhstan.
2.3.5. In the prescribed manner, make entries in the Employee’s work book, store it and issue it to the Employee on the day of dismissal.
2.3.6. Ensure the protection of the Employee’s personal data contained in their personal files and other documents from unlawful use or loss.
2.4. The employer has the right:
2.4.1. Require the Employee to conscientiously perform work duties and comply with internal labor regulations.
2.4.2. Encourage him for conscientious and effective work.
2.4.3. In case of production necessity, recall the Employee from the next vacation with subsequent compensation of unused vacation days.
2.4.4. Bring the Employee to disciplinary or financial liability in cases of improper performance of duties and causing material damage to the Employer in accordance with federal laws, laws of the Republic of Kazakhstan and internal labor regulations.
2.4.5. If there is a need to conduct professional training, retraining, advanced training in educational institutions of professional higher and further education at the expense of the Employer.
3.1. The employee is set, in accordance with the staffing table, an official salary according to the ________ wage category of the unified tariff scale (UTS) for the remuneration of employees of municipal institutions.
3.2. The employee is given a bonus in the amount of:
3.3. Monthly bonus in the amount of ______% of the official salary.
3.4. Payment of bonuses, allowances, additional payments and provision of financial assistance is carried out within the limits of the wage fund approved for the current year.
3.6. The procedure and conditions for bonuses are established by the “Regulations on material incentives for employees of the institution.
4.1. The employee is assigned a 36-hour work week - 5 days with two days off (Saturday and Sunday).
4.2. The start and end times of the working day, rest breaks are determined by the internal labor regulations.
4.3. Involvement of the Employee to work on a day off and a non-working holiday is carried out with the written consent of the Employee by written order of the Employer with the agreement of another day of rest.
4.4. The employee is annually granted regular leave with pay for a duration of 28 calendar days.
Leave for the first year of work is granted after six months of continuous work with the Employer. In cases provided for by the Internal Labor Regulations, at the request of the Employee, leave may be granted before the expiration of six months of continuous work with the Employer.
Vacation for the second and subsequent years of work is provided in accordance with the priority of vacations, according to the vacation schedule approved by the Employer, drawn up taking into account the wishes of employees about the time of the proposed vacation.
4.5. Replacement of regular vacation with monetary compensation is not permitted, except in cases of dismissal of an Employee who has not used the granted vacation.
4.6. The employee is granted additional leave for work in areas equivalent to the regions of the Far North in the amount of 16 calendar days.
At the request of the employee, additional leave can be replaced with monetary compensation.
4.7. Part of the annual paid leave exceeding 28 calendar days, not used in the current year, can be replaced by monetary compensation upon the written application of the employee in the year following the current one.
4.8. For family reasons and other valid reasons, the Employee, at his request, may be granted short-term leave without pay.
5.1. In case of failure or improper performance by the Employee of his duties specified in this agreement, violation of labor legislation, internal labor regulations, as well as causing material damage to the institution, he bears disciplinary, financial and other liability in accordance with current legislation.
6.1. Termination of this employment contract occurs in accordance with current labor legislation, as well as in the event of violation of the obligations assumed by the parties.
6.2. The contract may be terminated:
7.1. An employee does not have the right to perform other paid work during working hours under an employment contract with another Employer.
7.2. All materials created with the participation of the Employee on the Employer’s instructions are the property of the Employer and cannot be transferred to other persons without his consent.
7.3. The terms of this Agreement can be changed only by agreement of the parties and must be in writing.
7.4. The agreement comes into force from the moment it is signed by the parties.
7.5. The agreement is drawn up in two copies. The first is kept by the Employer, the second is kept by the Employee. Both copies, signed by both parties and certified by the seal of the Employer, have equal legal force.
7.6. The parties undertake not to disclose the terms of the contract and not to transfer it to third parties, classifying this as disclosure of official secrets.
The second option is associated with the use of intermediary services of the state employment service in accordance with employment legislation or private firms to assist in employment, taking into account the terms of the civil contract concluded with the employer. The employer independently selects performers based on business qualities, i.e., taking into account abilities, experience, and their suitability for the work performed. At the same time, modern labor law enshrines the fundamental position, also confirmed by judicial practice, that the employer solely independently makes decisions about filling existing vacancies and concluding an employment contract, legally excluding the possibility of influencing decisions that are not in line with his interests.
A canceled employment contract is considered unconcluded. Cancellation of an employment contract does not deprive the employee of the right to receive benefits for compulsory social insurance (payment of sick leave) in the period from the date of conclusion of the employment contract until the day of its cancellation (Article 61 of the Labor Code of the Russian Federation). It is prohibited to require the employee to perform work not stipulated by the employment contract, with the exception of cases provided for by the Labor Code of the Russian Federation and other federal laws (Art.
Over time, the custom has developed to confirm the signatures of the employer or his representative using a seal, despite the fact that there is no corresponding requirement in the law. A special rule has been established for the form of an employment contract concluded with an employer - an individual who does not have the status of an individual entrepreneur. It provides that the employer, by notification procedure, registers the relevant agreement with the local government body at the place of his registration (Art.
303 Labor Code of the Russian Federation). The law does not establish the consequences of failure to comply with such registration, as well as its impact on the validity of the employment contract. The Labor Code of the Russian Federation recognizes the conclusion of an employment contract as the actual admission of an employee to work, i.e., the implementation by the parties of implicit actions indicating their genuine desire to conclude an agreement.
If an employment contract is concluded by an employee for the first time, the employer is obliged to issue a work book for him at his own expense, provided that the employee has worked for him for more than five days and this work is his main job, and also to issue an insurance certificate for compulsory pension insurance. The work book is kept by the employer along with monetary documents, and is issued to the employee only on the day of his dismissal from work. If you lose your work book, it can be restored at your last place of work.
Detailed regulation of the rules for maintaining and filling out work books is carried out at the subordinate level1. Special documents that the employer has the right to demand from the employee are provided only by the Labor Code of the Russian Federation, other federal laws, decrees of the President of the Russian Federation and decrees of the Government of the Russian Federation.
Important
A work book is the main document about a citizen’s work activity, which contains information about the citizen’s age, specialty, qualifications, transfers to another job, grounds for dismissal from work, employee incentives and awards. Based on the information contained therein, in particular, the person’s length of service is determined for the purposes of labor law, as well as the insurance period necessary for the payment of temporary disability and maternity benefits. Every employer, with the exception of employers - individuals who do not have the status of individual entrepreneurs, is required to maintain work books for each employee.
It is written in free form addressed to the head of the organization - the employer. An application for employment by an employee is accepted by the employer and registered in the manner established by the employer, for example, in the employee application register. Conclusion of an employment contract with the employee After the employer has reviewed the application of a candidate for a vacant position for employment, an employment contract is drawn up.
In accordance with paragraph 1 of Article 31 of the Labor Code of the Republic of Kazakhstan, an employment contract is concluded in writing in at least 2 copies and signed by the parties. The content of the employment contract is regulated by Article 28 of the Labor Code of the Republic of Kazakhstan.
The permit from the guardianship and trusteeship authority specifies the maximum permissible duration of daily work and other conditions under which the work may be performed. (as amended by Federal Law No. 90-FZ of June 30, 2006) Article 64. Guarantees when concluding an employment contract Unreasonable refusal to conclude an employment contract is prohibited.
Any direct or indirect restriction of rights or the establishment of direct or indirect advantages when concluding an employment contract depending on gender, race, skin color, nationality, language, origin, property, social and official status, age, place of residence (including including the presence or absence of registration at the place of residence or stay), as well as other circumstances not related to the business qualities of employees, are not allowed, except in cases provided for by federal law. (edited)
Attention
Code, other federal laws, collective agreement. The probationary period cannot exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations - six months, unless otherwise established by federal law. When concluding an employment contract for a period of two to six months, the probationary period cannot exceed two weeks.
Info
It is not permitted to refuse to conclude an employment contract solely on subjective criteria (pregnancy or the presence of children, belonging to a certain gender, race, nationality, religion, beliefs, place of residence and other circumstances) that are not related to the employee’s business qualities. The legislation also establishes additional requirements for the employer, obliging him in some cases to enter into an employment contract with certain persons against the established quota (for example, with disabled people). In any case, an unjustified refusal to conclude an employment contract (including when its conclusion is mandatory for the employer) can be challenged in court.
Article 63. Age at which it is permissible to conclude an employment contract. The conclusion of an employment contract is permitted with persons who have reached the age of sixteen years. In cases of receiving general education, or continuing to master the basic general education program of general education in a form of education other than full-time, or leaving a general education institution in accordance with federal law, an employment contract can be concluded by persons who have reached the age of fifteen years to perform light labor that does not cause harm. their health. (edited)
The same circumstance does not give grounds to consider an employment contract as some kind of analogue of a public contract, enshrined in the norms of the Civil Code of the Russian Federation. That is why the need to enter into negotiations with the employee, the negotiations themselves, as well as the conclusion of an employment contract, are determined by the employer himself. Perhaps for this reason, the legislator did not establish detailed legal regulation of this procedure, thereby leaving a lot in the field of business customs.
For example, practice has developed a rule according to which, before concluding an employment contract, the employee contacts the employer with a written application, which is subject to registration. This rule is largely a tribute to the tradition preserved from Soviet times, when a citizen, by making an appropriate statement, exercised his own constitutional right to work.
When an employee is actually admitted to work, the employer is obliged to draw up an employment contract with him in writing no later than 3 working days from the date of the employee’s actual admission to work (Article 67 of the Labor Code of the Russian Federation). On the part of the employer, the employment contract is signed either by the head of the organization or by a person , authorized by the head of the organization (executed by order or power of attorney). The signature of the manager is certified by a seal. On the part of the employee, the employment contract is signed by the employee himself. The employment contract is drawn up in two copies, each of which is signed by the parties. One copy of the employment contract is given to the employee, the other is kept by the employer. The employee’s receipt of a copy of the employment contract must be confirmed by the employee’s signature on the copy of the employment contract kept by the employer (Art.
When an employee is hired, an employment contract must be concluded with him on the very first day of his work. In order to correctly draw up this document, it is necessary to specify a minimum list of rights and obligations of the parties that are provided for by labor legislation. A sample document, as well as the current drafting rules for 2019, are discussed in detail below.
Expert opinion
Chadova Svetlana
An employment contract must be drawn up only in writing. It is signed between 2 parties:
The essence of this agreement is that:
The law determines the general nature of this agreement, as well as the information that must be contained there. It is mandatory to indicate the details of the parties, as well as the nature, conditions, place of work and other information. As additional information, which is optionally indicated, you can include sections about the test, types of additional insurance for the employee, non-disclosure of certain information, etc.
The agreement must be drawn up in 2 identical copies: one is kept in the company, the other is given to the employee. It must be drawn up and signed on the first day of work, before performing professional duties. In this case, it is allowed to “conclude” an agreement in words, i.e. orally, but in any case, a written text must be drawn up and signed within 3 working days after the actual start of performance of duties.
If for some time the parties collaborated without this document, but subsequently, when going to court, their relationship was recognized as labor, they will be required to draw up and sign an agreement also within 3 working days from the date of entry into force of the relevant court decision.
Thus, the legislation clearly defines the content of the employment contract, but does not impose strict requirements on the very form of this document. Therefore, the company has the right to develop any sample contract, provided that it reflects all the described points. A typical employment contract, a sample of which is used everywhere with little or no additions, contains such sections.
At the beginning of the text, you should indicate the date and place of signing (this date is considered the employee’s first working day), as well as the details of the parties:
The subject of the agreement is that the company provides the job for which the employee applies. It is enough to indicate the name of the organization, its location, the position of the employee, as well as general information about the work:
The next rather large and important point describes the rights of the employee, as well as his job responsibilities. First of all, it is important to indicate the rights that are provided for by the Labor Code:
It is important to understand that there is no need to list all labor rights under the law. Even if the text of the document does not mention any guarantees, the employee still has the right to demand their provision, since this is provided for by the Labor Code.
As for responsibilities, the most important are:
A similar section is provided for the employer. The rights and obligations provided for by the Labor Code, as well as additional rights and obligations, if any, should be indicated.
This section details information about:
The amount of salary, as well as other payments, if provided, is indicated in numbers and in words. In the same section, you can specify the dates of payment and the method of transfer (to a bank account, card, cash through a cash register).
Next, standard provisions on possible changes to the procedure for terminating the agreement, details and signatures of the parties are prescribed. Separately, it is worth recording the fact of transfer of the document to the employee, who must put an additional signature and date.
In practice, different companies or individual entrepreneurs use different types of employment contracts. This important document is developed in advance, after which its form can be approved by a special internal regulation. The agreement can be drawn up either on regular A4 sheets or on letterhead. Often the text contains a fairly large amount of information, which is placed on 10-15 pages.
However, the text of the agreement does not have to be too long. Sometimes all the essential terms can be described on 1-2 pages, and as a result the document will be more concise.
Expert opinion
Chadova Svetlana
Leading HR specialist, lawyer, labor law consultant, website expert
There are several types of employment contracts - fixed-term and indefinite, main and part-time, with and without probation, etc. The forms of these documents are practically no different: you just need to add the appropriate condition, for example: “with a trial for 2 months.”
The parties can sign either an employment contract or a civil one - the so-called GPC (civil law nature). The essence of the relationship between the employee and the company may remain exactly the same, but these agreements have a different legal nature. The most significant differences between the documents are described in the table.
| comparison criterion | employment contract | GPC agreement |
| essence | performance of work duties | provision of services on a reimbursable basis |
| labor guarantees | are present in full, additional rights are possible | absent (can only be present in limited quantities) |
| position of the parties | the employee obeys the employer's rules | equal, partnership relationships |
| result | performing a job function, achieving certain results | performance of the service in full, which gives a specific, tangible result |
| validity | often indefinite | always urgent: terminates upon expiration of the deadline or immediately after achieving the result |
Thus, from the employer’s point of view, it is most advantageous to conclude a GPC agreement, since in this case he is relieved of a number of obligations to pay:
On the other hand, the company does not have many measures to influence a partner who cooperates only on GPC. In addition, the organization will have to prove to the inspection authorities that the involvement of an employee in the civil process does not occur regularly, i.e. the relationship is not labor in nature. Otherwise, there is a high probability of imposing a fine and taking other administrative measures.
As for the employee himself, a significant advantage of working under the GPC for him is more decent wages. As a rule, the cost of the service is assessed at the market price, which is often higher than the “price” of the salary. Based on this difference, a citizen can independently plan his contributions for a future pension and payment for medical services.
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