Situation
2 employment contracts were concluded with the employee:
- the first is a part-time legal adviser;
- the second is about remote work to protect the interests of the organization in court.
According to the second agreement, he was to be paid a fee for won cases. Having not received the promised payments, the employee filed a lawsuit. In turn, the organization put forward a counter-demand to recognize the agreement on remote work as not concluded.
As a result, the court sided with the employer (appeal ruling of the Supreme Court of the Republic of Tatarstan dated October 10, 2019 in case No. 2-7/2019, 33-17750/2019).
Labor wars: is it possible to receive wages under two employment contracts at one job?
The employer entered into two employment contracts with the employee. Under one agreement, the employee regularly received wages, but under the second agreement no payments were made. The employee went to court with a demand to recover the debt from the employer under the second employment contract.
On the agenda
: Appeal ruling of the Supreme Court of the Republic of Tatarstan dated 10.10.2019 No. 33-17750/2019.
Background
: the employer entered into two employment contracts with the employee at once. Under one agreement, the employee regularly received wages, but under the second agreement no payments were made. The employee went to court with a demand to recover the debt from the employer under the second employment contract.
Standards involved
: Art. Art. 15 and 16 of the Labor Code of the Russian Federation.
What were they arguing about?
: 40,000 rubles.
In court, the employee explained that he was hired on the basis of an employment contract at 0.5 times the rate of a legal adviser on a permanent basis. Also, another employment contract for a remote worker was concluded between the parties. Under this agreement, the employer agreed to pay the employee for services provided remotely. All essential terms of the agreement were agreed upon and the agreement was concluded by mutual agreement of the parties.
The court rejected the claims made by the employee, citing the following circumstances.
In accordance with Part 1 of Art. 15 of the Labor Code of the Russian Federation, labor relations are relations based on an agreement between the employee and the employer on the personal performance by the employee of a labor function for payment. Labor relations arise between an employee and an employer on the basis of an employment contract concluded by them (Article 16 of the Labor Code of the Russian Federation).
Labor relations between an employee and an employer also arise on the basis of the employee’s actual admission to work with the knowledge or on behalf of the employer or his representative.
However, the legislation does not provide for the possibility of parties concluding several employment contracts at the same time.
The court found that both employment contracts presented in the case had the same validity period and were concluded between the same persons. Thus, these employment contracts had to run concurrently.
However, the simultaneous validity of these contracts concluded with one employer is impossible, since the implementation of work on site or remotely is only a way for the employee to perform a labor function and the conclusion of another employment contract is contrary to the law.
In addition, the parties do not deny that for the entire period of the employee’s work, wages were paid to him only under one contract. The employee did not receive the salary stipulated by the second contract. Moreover, the employee did not provide evidence of performing any useful work under the second contract.
In this regard, the court concluded, the employee does not have the right to demand remuneration under the second employment contract, which was not actually fulfilled by the parties and was concluded in violation of labor legislation.
Legal basis
Two employment contracts with one employee cannot be valid simultaneously, although there is no direct prohibition provision in the Labor Code of the Russian Federation.
In this case, working on site or remotely is just a way to perform a job function. The conclusion of another employment contract contradicts the norms of the Labor Code of the Russian Federation (Part 1 of Article 15, Part 1 of Article 16, Articles 56, 68, 312.1, 312.2).
For the entire period of work, the employee was given a salary according to the first contract without additional payment for conducting cases in the courts. This confirms that the parties did not agree on the disputed payments.
Thus, more than one employment contract for the main job cannot be concluded with one employee at the same time.
Provisions of Art. 56 of the Labor Code of the Russian Federation, provide for the conclusion of an employment contract between the employee and the employer. Changes in the employee’s working conditions are formalized by orders. It is also possible to conclude additional agreements to the employment contract. However, labor legislation does not allow .
None of the presented employment contracts signed with the employee contains an indication that it is an addition to another existing contract.
Similar findings include:
- appeal ruling of the Novosibirsk Regional Court dated October 12, 2017 in case No. 33-9840/2017;
- appeal ruling of the Moscow City Court dated April 20, 2017 No. 33-14962/2017.
Read also
05.02.2020
Let's sum it up
- An employment contract is concluded with an employee upon his/her employment. It stipulates the specific conditions associated with the performance of the job function at the time of admission. These conditions may change in the future. The fact of the change reflects the additional agreement to the employment contract. Within the meaning of the wording used in the Labor Code of the Russian Federation, there can be only one employment contract concluded upon hiring.
- We are talking about several employment contracts only with a part-time job, since each of the employers (including the main one) will have to draw up its own contract with the part-time worker. Part-time work for the main employer requires the performance of a job function that is different from the main one. Therefore, the main employer will have to conclude two contracts with such an employee.
- If it is necessary to change the terms of the contract (both main and part-time), it will be adjusted through an additional agreement, but not by drawing up another employment contract.
Source
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What does the Labor Code say?
You should start with the fact that you still have to choose. There can be only one main official source of income. However, you can work completely officially in other jobs. In this case, all other jobs will be part-time jobs. According to Art. 282 of the Labor Code of the Russian Federation, you can work part-time:
- At the place of main work, that is, in the same organization;
- With another employer.
But even taking into account such freedom of choice in design, part-time work has a list of restrictions. The sheer number of part-time jobs can be very diverse, if the conditions for such part-time work are met.
Many people take up additional part-time work unofficially in order to receive illegal, but larger earnings by not paying taxes. However, part-time work will be able to prove your experience, which will play an important role when applying for a higher position.
Two Employment Contracts Which is Valid
Usually, when an employer makes such demands, many create a second document. The current legislation does not specifically state that a person can have only one work book. That is, in theory, a citizen of the Russian Federation can have two documents. However, it is impossible to work on each of the labor accounts at the same time, because this will be classified as fraud. In itself, having two work books rarely threatens a fine, but it can cause problems in the future.
- You must have a main source of income (main job);
- New part-time work should not be carried out while performing your main job. That is, work shifts or duties must be performed during non-core hours;
- an employment contract with you which will spell out the rights and responsibilities of part-time work.
Who is prohibited from working part-time (read more...)
