Is the employee obligated to conclude a contract with the employer. Is it necessary to conclude an employment contract with an employee? What can be an employment contract in practice and according to the law

09.05.2020

Irina Davydova

Reading time: 9 minutes

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A rare person, when filling out documents and concluding contracts, carefully checks the text for possible errors and pitfalls.

As a rule, we check the “papers” on the run, glimpsing the beginning and ending, and hoping for the decency of the other side. For which we then pay with our nerves and "ruble".

Types of employment contract with an employee - how do they differ?

According to the law, the relationship "employee-employee" must be secured by certain documents. Namely, an employment contract, according to which (Article 56 of the Labor Code) the employee must perform his labor functions and comply with the rules of the organization, and the employer must pay his salary without delay and in full.

That is, labor contract is an important document that clearly defines the rights and obligations of both parties.

What can an employment contract look like in practice and according to the law:

Civil law. This version of the contract takes place with the "safety net" of the head. He is imprisoned for rendering specific services to easily dismiss an employee in a situation “you are not suitable for us”. In the event that the employee has time to prove himself, they are already moving to an employment contract.
Urgent. In this case, the contract fixes the work of the employee for a certain, very specific period, and not indefinitely. And after its completion, the authorities can legally fire the employee. Or re-employ him by issuing a dismissal order and re-concluding an agreement. True, the employer must have good reasons for concluding such an agreement. Otherwise, these actions will be considered illegal.
Labor. The most common type of contract, which involves indefinite work on certain conditions specified in the document. This agreement, drawn up in writing, is a guarantee of observance of the rights of the employee.

Labor or civil law - differences in contracts:

TD is work in a specific position according to existing qualifications. GPA is the performance of certain tasks with an end result.
According to TD - salary in the amount specified in the document, according to GPA - remuneration.
With TD, the work is carried out personally by the employee, with GPA, only the end result is usually important.
Failure to fulfill duties under TD threatens with a penalty, reprimand or dismissal. Failure to comply with the GPA is already a sphere of civil liability.

Important points of concluding an employment contract - how to prevent mistakes and deception of the employer?

Found a new job? Is the signing of an employment contract approaching?

We study the pitfalls to protect ourselves from mistakes and unscrupulous employers!

So, an employment contract with you must sign maximum within 3 days from the moment you start working. Moreover, in 3 copies and in handwritten form.

And - regardless, whether you are invited by transfer from another place of work, whether you have small children, and whether there is a registration at the place of residence.

If the contract is not concluded with you, think about whether it is worth continuing to work. After all, TD is a guarantee of your rights.

But do not rush to sign the contract without looking either!

First, read it carefully and pay attention to the most important points:

Compliance with the order and the contract. When the employer makes important points in the contract, they must also be written in the order for hiring you. And the primary (note - in disputable situations) will always be an employment contract. Therefore, make sure that these 2 documents correspond to each other. Let the information in the order be in an abbreviated version, but it must fully reflect the conditions specified in the contract. Any inconsistencies (note - provisions in the order that are not specified in the contract) have no legal force.
Probation. It must be spelled out in the contract. The maximum period is 3 months. In the absence of this clause, the employee is considered hired without a probationary period and, accordingly, they are not entitled to dismiss him later, as he has not passed this period.
specific place of work. If it is not clearly defined by the employer in the contract, then it will be extremely difficult to dismiss an employee for "truancy" - after all workplace not specified. That is, upon dismissal for absenteeism in the absence of this clause in the employer's contract, through the court they will be obliged to reinstate you at work.
Responsibilities. They should also be clearly and specifically written. Otherwise, the employer simply does not have the right to require the employee to perform certain tasks "in accordance with the contract." An employee can safely declare that the work that is required of him is not included in the scope of duties. And it is also impossible to dismiss an employee for not fulfilling tasks that are not in the contract.
Wage limit. It should also be fixed in the contract. And in case of underestimation of this maximum limit, the employee can safely go to court. It is worth noting that the authorities should notify you of all changes in your pay only in writing and a couple of months before the fact of the change. It is impossible not to say about the payment "in kind". It happens that instead of a salary, employees are given products manufactured by the company. This "method", alas, has not yet become obsolete. It is considered legal if the "kind" does not exceed 20% of the salary, and is also suitable for the consumption (use) of the employee and his family.
Rules. Prior to the conclusion of the contract, your management must familiarize you (only against signature) with the rules of internal work schedule company and other acts/regulations that directly apply to you.
The content of the contract. Read the document carefully! It should contain not only your place of work and position, but also a list of duties, terms of payment (including all bonuses with allowances) and the issue of social / insurance, date of commencement of work. Additional conditions may also be prescribed: the rest / work regime (if it does not coincide with the regime of other employees), the issue of compensation for " harmful work”, special conditions (business trips, etc.).
Responsibilities. Make sure they are written clearly and in as much detail as possible. That is, the position itself specific view work and directly the department in which the work is supposed. If the contract indicates that you will fulfill your duties “according to the job description”, then demand an instruction - it must be attached to the contract with your signature (note - a copy is kept in your hands).
Social insurance. An important point of the contract! And the information from this paragraph must be entered in accordance with federal laws. This clause is a guarantee of compensation for harm in the event of a force majeure situation, as well as temporary disability, motherhood, etc.
Recycling. The contract must specify the exact number of working hours. And when processing - to pay you extra hours worked in 1.5 or double size.

And finally, it is worth remembering that the contract is signed only by the director and only in your presence, and the name of the company appearing in the papers must be the same everywhere.

The terms of the employment contract - what you need to pay attention to?

During employment, the contract is concluded for a specific or indefinite period, depending on the work.

Classic contract (for an indefinite period). In this case, the period for which you are hired is not specified and is not indicated at all. That is, you are hired on a permanent basis, and termination of employment is possible only in the manner prescribed by law.
Urgent contract. An option when you are hired for a period agreed by 2 parties to perform a specific job. Maximum term- 5 years. In addition to the validity period, this contract indicates the reasons for not concluding a regular contract (they are approved by law, and the employer has no right to expand the list of reasons). This contract is terminated at the end of its validity period by a written warning to the employee at least 3 days in advance. In the event that the term of the contract is over, and the employee is still working, the contract automatically goes into the category of "unlimited".

It is worth noting that fixed-term contracts are divided, in turn, into ...

An agreement with an absolutely definite period of validity. This type of contract is applicable when a person is elected to a certain elective position. In particular, with governors, rectors, etc.
A contract with a relatively definite period of validity. Case for persons admitted to temporary organization created for a specific job and for a specific period. Termination of the contract occurs after the end of the existence of the organization.
Conditional contract. An option in the case when an employee is needed only for a while - as a replacement for an employee who is temporarily absent for specific reasons (business trip, maternity leave etc.).

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Hello, our company has a large number of workers who started their careers 20 years ago, when employment contracts have not yet been required. Tell me whether it is necessary to conclude employment contracts with them in writing now, and what to do with such employees if any changes occur, because I cannot draw up an additional agreement to the employment contract, because there is no contract itself.

Answer

According to the current procedure, labor relations between an employee and an employer arise on the basis of an employment contract concluded in writing.

Before entry into force Labor Code RF labor relations were regulated by the Labor Code of the Russian Federation. Registration of labor relations in writing was not mandatory and was carried out only with the consent of the employee (Recommendation, approved). On October 6, 1992, Article 18 of the Labor Code of the Russian Federation was amended, according to which the execution of the contract in writing became mandatory ().

Consequently, with employees hired starting from October 6, 1992, employment contracts are concluded exclusively in writing. Requirements for the form of an employment contract are established by the Labor Code of the Russian Federation (Article 57 of the Labor Code of the Russian Federation).

If a written employment contract was not concluded with an employee hired some time ago, then it must be drawn up now. Draw up a draft Employment contract that meets the requirements of Art. 57 of the Labor Code of the Russian Federation. In the concluded contract, reflect the actual working conditions ( wages, working hours, etc.) and guarantees provided to the employee, valid on the current date, and not on the date of employment. The date of execution of the contract will also be the current date, but the date the employee was hired (date of commencement of work) is the actual date of his entry to work (according to the entry on employment in the work book). It is recommended to attach to the contract documents confirming the employment relationship with the employee (copies of orders for admission, transfer, relocation, etc.) from the moment of hiring until the day the employment contract is concluded.

Thus, draw up an employment contract with the current date, while the date of admission in it indicate the actual date the employee left for work. Therefore, in the future, if any changes occur, you can arrange with employees supplementary agreement to an employment contract general order.

Details in the materials of the System:

Answer: How to apply for a job

Documentation of the recruitment of an employee

When applying for a job:

on the basis of the concluded contract, the personnel service and draws up other documents:, (if necessary).

Draw up an employment contract in two copies - one for each of the parties. On a copy of the organization, the employee must sign. His signature confirms that he has received his copy of the employment contract. Such rules are established by Article 67 of the Labor Code of the Russian Federation.

Draw up an employment contract in . The main thing is that it contains the mandatory information and conditions provided for by the chapters and the Labor Code of the Russian Federation. For example, information on salary, position, working hours, etc.

Specify the position in the employment contract in strict accordance with. Hire an employee for a position not included in the staffing, illegal. This follows from the Labor Code of the Russian Federation. Rostrud also gives similar explanations.

It is not necessary to indicate information about the incentive payments (allowances, additional payments) due to the employee in the employment contract. It is enough to make a reference in the employment contract to the collective agreement or other local regulatory act of the organization, which indicates the grounds and conditions for their payment. Such clarifications are contained in the letter of Rostrud dated March 19, 2012 No. 395-6-1.

An employment contract concluded with a professional athlete or coach must additionally contain the mandatory conditions listed in the Labor Code of the Russian Federation (for example, the obligation of the athlete not to use doping drugs, the obligation of the coach to take measures to prevent the use of illegal drugs by athletes). When drawing up an employment contract with an employee budget institution can also be guided , approved .

Labor Relations may arise without the conclusion of an employment contract, on the basis of the actual admission of the employee to work. In this case, the contract, although not formalized in writing, is considered concluded. A similar position is taken by the courts (see, for example, appeal rulings,).

Admission to work without prior execution of an employment contract is entitled to be carried out only by an employee who has the appropriate authority to do so. Such powers can be enshrined in the job description (employment contract) of the employee or in a separate local act - the order of the employer. Special documenting the actual admission of a beginner to work is not provided for by the Labor Code of the Russian Federation. The admission will be confirmed with the date of the actual start of work and the work performed by the employee (labor activity). At the same time, if necessary, the employer can draw up an additional document in free form on the admission of a beginner - a memorandum, etc. In this situation, an employment contract should be drawn up and signed no later than three working days from the date the employee was actually admitted to work. At the same time, it is necessary to take into account. Such rules are established by the Labor Code of the Russian Federation.

Situation: Is it necessary to conclude a written employment contract with an employee who was hired before 1992 and continues to work in the organization. When hiring, the employment contract was concluded orally

Yes need.

According to the current procedure, labor relations between an employee and an employer arise on the basis of (Article , Labor Code of the Russian Federation).

Thus, with employees hired starting from October 6, 1992, employment contracts are concluded exclusively in writing. And with regard to employees hired before the specified date, the following approach has developed.

If the employee agrees to the employer's proposal to formalize the relationship in writing, then the latter draws up an employment contract in the general manner. In the contract to be concluded, reflect the actual working conditions (wages, working hours, etc.) and guarantees provided to the employee, valid on the current date, and not on the date of employment. The date of execution of the contract will also be the current date, but the date the employee was hired will be the actual date of his entry to work (according to the employment record in the work book). It is recommended to attach documents to the contract confirming the employment relationship with the employee (copies of orders, time sheets) from the moment of hiring until the day the employment contract is concluded.
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Until 1992, when applying for a job in Russia, there was an oral form of an employment contract, when the employee performed his direct duties, and the employer simply made an entry about this in the work book. After the entry into force of the Law of the Russian Federation No. 3543-1 of September 25, 1992, the situation changed, and the state obliged managers to draw up contracts in writing, and later this was reinforced by the norms of Art. 67 of the Labor Code of the Russian Federation, which states that an agreement not concluded in writing is considered valid if the employee has started work with the knowledge or on behalf of the director.

Oral transactions are allowed only by the Civil Code, but in labor relations they are unacceptable for several reasons:

Based on the employment contract, an order for employment is drawn up.
The agreement is created in duplicate: one remains with the employer, and the second with the employee. This allows you to establish the fact of the existence of labor relations in litigation at the initiative of the employee, because document can be used as evidence.
The employment contract determines not only the term of work, but also the conditions: ordinary, at night, harmful. Based on this, wages are calculated, because. under difficult conditions, the employee is entitled to additional compensation and surcharges.

In essence, employment contracts are divided into several types:

Urgent: with a predetermined period during which the employee will perform his functions in the enterprise. For example, seasonal work, contracts, etc. The duration of such relations cannot exceed 5 years, after which the document must be renewed or extended, otherwise it will be considered automatically terminated.
Perpetual: They do not specify a specific period of work. As a rule, such documents are drawn up when applying for a job on a permanent basis or part-time.
With an unspecified deadline: such a document is usually issued in cases where it is necessary to perform a certain amount of work, and their temporary nature is indicated in the Charter of the organization.
The applicant applies to the organization for employment, providing Required documents: diploma of education, work book (if any), as well as the job application itself.
The employer enters into an employment agreement with the employee. If a probationary period is provided for it, this must be reflected in the document.
Next, the manager issues an order for employment and gives it to the employee for signature, then a personal card is issued for him, and the corresponding entries are made in the work book.

general information

As mentioned earlier, the execution of an employment contract when applying for a job is a prerequisite, and the procedure itself is generally as follows:

As for the employment contract, it can be concluded in a simple written form, because. unified form for him no. It should contain the following information:

Data on the employee and employer (full name, name of the organization).
The position for which the employee is accepted, as well as the date of commencement of the performance of labor duties.
Rights and obligations of the parties.
Terms of payment.
Working hours and rest time.
Guarantees and compensations.
Responsibility of the parties.
Conditions for terminating the contract.

Before processing all documents, the employee must be familiar with job description, according to which he will have to fulfill his duties, tk. this will allow him to have a clear idea of the work being done.

Types of employment contracts

Employment contracts are classified according to the terms and nature of the work. Term agreements, in turn, are divided into several types:

With a certain period of validity. Relevant for elected positions: deputies, governors, rectors educational institutions. It indicates the exact date of the end of his term, after which he can be re-arranged through re-election.
With a relatively definite expiration date. As a rule, such contracts are drawn up in organizations specially created to perform specific work with a fixed scope: for example, the headquarters of the election campaign.
Urgent: issued with seasonal workers or in cases where temporary replacement of an absent employee is required.

Also, a fixed-term employment agreement may be concluded in certain situations:

if urgent emergency work is required;
With separate categories workers: artists, students, sailors working in the Far North, with part-time workers.

According to the nature of the employment relationship, contracts are divided into two types:

For basic work. In this case, it is understood that the employee will perform official duties on an ongoing basis, and employment history will be kept in the personnel department of the enterprise.
For collaborative work. This type of activity is possible in free time from the main work, not exceeding half the working day. Remuneration is made on a general basis. The combination, in turn, is also divided into two types: internal, when an employee works in different positions in one company, and external, when he works in two organizations.

What are the contracts depending on the conditions of work:

For work under normal conditions: the length of the working day in this case is normalized, labor activity at night or at hazardous enterprises is not provided.
To work at night. A shift schedule can also be included in this category, however, such an agreement by law cannot be concluded with minors and pregnant women, because. they are provided with favorable working conditions.
For work in dangerous or harmful conditions. The list of such works is established by Decree of the Government of the Russian Federation of February 25, 2000 No. 162. This includes foundries, welding, boiler houses, metalworking and other similar enterprises.
For work in special climatic conditions. For example, in the Far North or equivalent areas.

In addition to the above types of contracts, there is a separate type - the contract. It refers to urgent and is usually concluded with military personnel, employees of the Police and other law enforcement agencies when hiring. Its duration is up to 5 years, but at the initial stage, the service life is limited to three years. Subsequently, the contract can be re-executed, and if this does not happen, it is considered automatically terminated based on the expiration of its validity. What is the difference between a regular employment agreement and a contract:

The contract can be both urgent and indefinite, the contract is drawn up strictly for a certain period.
Under the contract, the head may terminate the employment relationship ahead of schedule if there are provisions provided for by it and special regulatory legal acts additional grounds, while the dismissal of those employed under the contract is carried out only in accordance with the norms of the Labor Code of the Russian Federation.

Also hallmark contract from a simple contract is that it is impossible to force an employee to quit on own will, because Termination requires at least one of the following conditions to be met:

expiration date;
mutual consent of the parties;
failure to comply with the obligations of one of the parties.

When is the oral form allowed?

According to the law, an employment contract is considered executed from the moment the employee begins to perform his labor functions, subject to notification of the management and the availability of permission. The employer is obliged to draw up a written agreement with the employee within three days after he has taken up his duties, otherwise the absence of a document will be considered a violation of labor laws.

If a civil law contract was originally drawn up, but subsequently the relationship was recognized as labor, the agreement must also be drawn up within three days.

Thus, the oral form of an employment contract is not allowed in any case, and the differences between a written document and a transaction under civil law are as follows:

a civil law contract implies the presence of a customer and a contractor, and a labor contract implies an employee and an employer;
in the first case, it implies the performance of certain work within a specific timeframe, while labor can also be concluded for an indefinite period;
in civil law relations, it is not the rules for the performance of work that are important, but the end result, and in labor relations it is necessary to follow the job description;
a citizen employed under a TD undertakes to comply with the working time schedule established in the organization, and when concluding a GPA, the performer has the right to independently regulate his work schedule;
the manager who issued the TD must independently provide the employee with the necessary materials and conditions, and when signing the GPA, the contractor does this himself;
according to TD, a number of guarantees and compensations are provided: payment for vacation and sick leave, payments upon dismissal, a minimum vacation of 28 days, etc. those employed under the GPA are guaranteed only the transfer of hours worked to the general insurance period, as well as the transfer of contributions to the MHIF and the PFR.

Responsibility for violation of labor legislation for the employer also arises if he issued an order for employment, but did not conclude an employment contract with the employee, because. this is considered a violation. The penalty is provided for in Art. 5.27 and 5.27.1 of the Code of Administrative Offenses of the Russian Federation, and the sanctions depend on the form of activity (legal or individual) and the severity of the offense: it is possible to impose an administrative fine, disqualification for a certain period, warning.

Should an employment contract be concluded with an employee who was hired at a time when employment contracts were not yet introduced? If yes, then a fixed-term or indefinite employment contract is concluded with a retired employee

Answer:

The obligation to conclude an employment contract in writing was introduced by the Law of the Russian Federation of September 25, 1992 N 3543-I “On Amendments and Additions to the Code of Labor Laws of the RSFSR” (clause 15, article 1), which fixed such a requirement in art. 18 Labor Code of the RSFSR. Then the requirement for the mandatory conclusion of an employment contract in writing was established in the Labor Code of the Russian Federation. Labor relations of persons hired before the entry into force of the Law of the Russian Federation of September 25, 1992 N 3543-I (06.10.1992), with the consent of such persons, could be drawn up in writing. This was indicated by the Ministry of Labor of the Russian Federation in the Recommendations for the conclusion of an employment contract (contract) in writing, approved by the Decree of the Ministry of Labor of the Russian Federation of July 14, 1993 N 135 (order of the Ministry of Health and social development RF dated November 24, 2008 N 665, this resolution was recognized as invalid from December 1, 2008). Thus, the employer did not have to draw up in writing employment contracts with employees hired before 6 October 1992.

Employees hired from 6 October 1992 were required to enter into written contracts of employment. However, before the entry into force of the Labor Code of the Russian Federation, if the employment contract was not executed in writing, but the employee was actually allowed to work, the employment contract was in any case considered concluded (part three of article 18 of the Labor Code of the RSFSR). This wording allowed employers not to conclude employment contracts in writing with employees actually admitted to work. After the entry into force of the Labor Code of the Russian Federation (since February 1, 2002), the employer is obliged to conclude employment contracts with employees in writing. The provisions of Art. 67 of the Labor Code of the Russian Federation establishes the obligation of the employer, when the employee is actually admitted to work, to draw up an employment contract with him in writing no later than three working days from the date the employee is actually admitted to work.

At the same time, the Labor Code of the Russian Federation does not contain provisions obliging to conclude employment contracts in writing with employees hired before its entry into force. In addition, in accordance with Art. 424 of the Labor Code of the Russian Federation, the provisions of the norms of the Labor Code of the Russian Federation apply to legal relations that arose after its entry into force. The same rule establishes that if legal relations arose before the entry into force of the Labor Code of the Russian Federation, then it applies only to those rights and obligations that arise after its entry into force. In other words, the provisions of the Labor Code of the Russian Federation do not have retroactive effect.

Thus, with employees who were hired back in the period of the Labor Code of the Russian Federation, the execution of an employment contract in writing is not mandatory and is possible only with their written consent. With the same employees who were hired after February 1, 2002, the employer is obliged to conclude employment contracts in writing.

Labor legislation does not establish a special procedure for concluding employment contracts in a situation where an employee hired before February 1, 2002 expressed his written consent to conclude an employment contract in writing. Also, the Labor Code of the Russian Federation does not contain any special requirements regarding the procedure for concluding an employment contract in the event that the employer, within three working days from the date of the actual admission to work of an employee hired after February 1, 2002, did not conclude an employment contract with him in writing. In our opinion, in both situations, when concluding an employment contract, the employer must be guided by the general norms of chapters 10-11 of the Labor Code of the Russian Federation. Thus, the employment contract must contain all the conditions that are mandatory for inclusion in the employment contract, established by Art. 57 of the Labor Code of the Russian Federation. According to the first part of Art. 57 of the Labor Code of the Russian Federation, the employment contract indicates, in particular, the place and date of the conclusion of the employment contract. In addition, in accordance with the second part of Art. 57 of the Labor Code of the Russian Federation, as one of the mandatory conditions in the employment contract, it is necessary to indicate the date of commencement of work. In this case, the date of conclusion of the employment contract must correspond to the actual date of its conclusion, and the date of commencement of work - the actual date of commencement of work in accordance with the order for employment.

According to paragraph 2 of the second part of Art. 59 of the Labor Code of the Russian Federation, a fixed-term employment contract may be concluded with retirees entering work by age, by agreement of the parties. From this rule it follows that, by agreement of the parties, a fixed-term employment contract can be concluded with an employee only if he is a pensioner at the time of employment. In the situation under consideration, the employee became a pensioner during the period of work at this employer: after all, despite the fact that the employment contract with him (possibly) will be drawn up in writing only now, he was hired much earlier. Thus, the current labor legislation of the Russian Federation (unlike the previous (until 01.10.2006) edition of paragraph 14 of Article 59 of the Labor Code of the Russian Federation) does not give the employer the right to change the employment contract concluded with the employee for an indefinite period (although not executed in writing ), for a fixed-term employment contract in connection with the achievement of retirement age by this employee and the assignment of a pension to him.

Since an exact answer is needed, then in order to avoid misunderstandings, I quote the relevant quotes as an answer to your question: "Article 68 of the Labor Code of the Russian Federation. Employment
Employment is formalized by the order (instruction) of the employer, issued on the basis of the concluded employment contract. The content of the order (instruction) of the employer must comply with the terms of the concluded employment contract.
The order (instruction) of the employer on employment is announced to the employee against signature within three days from the date of the actual start of work. At the request of the employee, the employer is obliged to issue him a duly certified copy of the said order (instruction).
When hiring (before signing an employment contract), the employer is obliged to familiarize the employee against signature with the internal labor regulations, other local regulations, directly related to labor activity employee, collective agreement
Article 56. The concept of an employment contract. Parties to the employment contract
An employment contract is an agreement between an employer and an employee, according to which the employer undertakes to provide the employee with work according to the stipulated labor function, to ensure the working conditions provided for labor law and other normative legal acts containing norms labor law, the collective agreement, agreements, local regulations and this agreement, pay the employee wages in a timely manner and in full, and the employee undertakes to personally fulfill the labor function, comply with the internal labor regulations applicable to the employer.
Article 63
...unreasonable refusal to conclude an employment contract is prohibited.
Any direct or indirect restriction of rights or the establishment of direct or indirect advantages when concluding an employment contract depending on gender, race, skin color, nationality, language, origin, property, social and official position, age, place of residence (including the presence or absence of registration at the place of residence or stay), as well as other circumstances not related to business qualities employees, is not allowed, except in cases provided for by federal law.
It is forbidden to refuse to conclude an employment contract for women for reasons related to pregnancy or the presence of children.
It is forbidden to refuse to conclude an employment contract to employees invited in writing to work by transfer from another employer within one month from the date of dismissal from their previous place of work.
At the request of the person who was refused to conclude an employment contract, the employer is obliged to inform the reason for the refusal in writing.
Refusal to conclude an employment contract may be appealed to the court.
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