What are the basic rights and responsibilities of the employee and the employer?

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Published: 07/15/2016

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In Article 56 of the Labor Code of the Russian Federation, the concept of an employment contract is defined as a bilateral agreement between an employer and an employee, implying the mutual fulfillment of obligations and conditions and the receipt of certain rights.

The employer must provide work and working conditions that meet the norms of labor legislation and other legal acts (agreements, local legal acts, collective agreement, this agreement), and pay the employee wages on time.

The employee must perform this work and comply with all labor regulations.

The law prohibits the inclusion in an employment contract of conditions that could worsen the employee’s situation.

• Features of the employment contract
• Main types of contracts Term
• Nature of the relationship and scope of work
• Type of employer
• Working conditions

Definition of the concept of employment contract

The concept of “employment contract” can be considered in several aspects and represent:

• Institute of Labor Law and Labor Legislation;
• legal fact giving rise to an employment relationship;
• source of subjective labor law;
• legal model of labor relations;
• a written document that has a specific internal form.

The Labor Code of the Russian Federation contains the following definition of the concept of an employment contract:

employment contract - an agreement between an employer and an employee, according to which the employer undertakes to provide the employee with work for a specified labor function, to provide working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations and by this agreement, to pay the employee wages in a timely manner and in full, and the employee undertakes to personally perform the labor function determined by this agreement in the interests, under the management and control of the employer, to comply with the internal labor regulations in force for this employer” (Article 56 of the Labor Code of the Russian Federation) .

Hiring under an employment contract

Hiring of a full-time employee occurs in the following order:

1. Reception and registration of a job application drawn up in any form. Such an application is required only when applying for state and municipal employees; for all other employees it may not be submitted.

2. A referral for a medical examination is also not mandatory in all cases. A document confirming the completion of a medical examination is required only for persons under 18 years of age and certain categories of workers: in the food industry, catering, trade, health workers, those involved in working with children, workers employed in hazardous and hazardous working conditions and some others.

3. Before concluding an employment contract, the employer must familiarize the employee, against signature, with local (internal) regulations that are relevant to his work activity. These documents include:

• internal labor regulations
• regulations on wages and bonuses
• regulation on the procedure for processing employee personal data and guarantees of their protection
• regulations on the structural unit
• staffing table
• job descriptions
• collective agreement, if one has been drawn up.

The question of whether the employee was familiar with the contents of local documents before signing the employment contract sometimes even becomes the cause of litigation. In order to avoid being accused of violating labor laws, some personnel workers develop logs of familiarization with internal documents, where they indicate not only the date, but also the exact time when exactly the employee became familiar with them.

This is not necessary, you can simply write a similar phrase in the text of the employment contract in the section on the employee’s responsibilities: “...comply with labor regulations, labor protection and safety requirements and other local regulations directly related to work activities, with which the employee was familiarized with signature "

4. The employee must present the documents specified in Article 65 of the Labor Code of the Russian Federation:

• passport or other identity document;
• work book and insurance certificate of state pension insurance, except in cases where the employment contract is concluded for the first time or if the employee will be a part-time worker;
• document on education, qualifications or special knowledge (if the job requires such knowledge or special training);
• military registration documents - for those liable for military service or conscripts;
• certificate of no criminal record (for teachers and some other categories).

The employer cannot require other documents, unless this is provided for by special regulations.

5. The employer and employee sign an employment contract drawn up in two copies - one for each party. In the copy of the contract, which is kept by the employer, it is necessary to provide space for one more signature of the employee “Received a copy of the employment contract.” The signed agreement is registered in a book or journal for registering employment contracts, which is developed in any form.

6. Based on the signed employment contract, an order for employment is issued in form No. T-1. A sample of such an order is available. The order is registered in the order registration book and presented to the employee within three days from the date of actual start of work. The content of the employment order or instructions on job responsibilities should not diverge from the terms of the individual employment contract.

7. The final step in hiring an employee will be making an entry in the work book and issuing a personal employee card in form No. T-2. Keeping an employee’s personal file is mandatory only for state and municipal employees; in other cases, such a file does not need to be opened.

If the employer maintains the personal files of employees, then the employee must have a folder with an internal list of documents. Such personal files include an autobiography, a questionnaire, a resume, a job application, recommendations and characteristics, medical certificates, copies of documents presented when applying for a job, an employment contract, an extract from the employment order, a personal card and other documents, related to work activity.

Samples (forms) of an employment contract

Download samples (forms) of employment contracts in MS-Word format:

• An employment contract with an employee for an indefinite period. General form
• A fixed-term employment contract with an employee with a probationary period. General form
• Standard form of an employment contract concluded between an employee and an employer - a small business entity that belongs to micro-enterprises (approved by Decree of the Government of the Russian Federation of August 27, 2021 N 858)

Employment agreement - concept and features

This type of legal acts is not regulated by the labor legislation of the Russian Federation.

Labor agreements are concluded for short-term hired work, and therefore fall within the purview of civil law.

The terms of such acts imply that the performer will carry out certain work and receive a monetary reward only after its completion. In other words, the subject of an employment agreement is not the employee’s work itself, but its result .

Similar agreements are concluded when applying for temporary work (for example, contract work).

This act often ignores the issues of discipline and protection of the rights of the performer; the number of days off and the right to vacation are not determined.

For this reason, an employment agreement is a legal loophole for unscrupulous employers. The drafting of this document should be done with the utmost care. It is of fundamental importance to have a fixed amount of remuneration for the work done.

The employment agreement is as follows:

Employer A instructs Contractor B to perform certain work within a specified period. A undertakes to pay B a certain monetary reward after the work is completely completed.

The state pension co-financing program is a significant contribution to the financial stability of pensioners. Indexation of pensions in 2016 - full information on this topic is located in our article. Unused vacation and its compensation are described in our article.

Signs of an employment contract, labor relations

An employment contract is the basis for the emergence of an employment relationship. Based on the norms provided for in Part 1 of Art. 15, part 1 art. 56 of the Labor Code of the Russian Federation identifies the following distinctive features of an employment contract:

• Personal performance of a labor function by an employee . The employee is obliged to perform the work personally; no representation in this regard is allowed (with the exception of homeworkers who can perform work stipulated by the employment contract with the participation of members of their family (Article 310 of the Labor Code of the Russian Federation). Specifics of the obligations assumed by the employee under the employment contract , is expressed in the performance of work for a certain position in accordance with the staffing table; profession, specialty indicating qualifications, i.e. the labor function stipulated by agreement of the parties.
• Submission to internal labor regulations . The employee performs work in the interests, under the management and control of the employer, subject to internal labor regulations;
• Ensuring working conditions . The employer is obliged to provide the employee with working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations, employment contracts, including working conditions that meet safety and hygiene requirements, the right to rest ( including limitation of working hours, provision of daily rest, weekends and non-working holidays, paid annual leave);
• The employee's right to payment of fair wages not lower than the minimum wage . The employer is obliged to pay the employee wages in a timely manner and in full, in accordance with the procedure established by law and in an amount not less than the minimum wage (minimum wage). In this case, it is not the result that is subject to payment, but the labor process itself. In addition, certain periods when the employee did not actually work are also subject to payment (a period of paid leave, forced absenteeism, forced downtime, temporary absence due to illness, etc.).

Mutual obligations

Recently, large Russian companies have entered into collective agreements with their employees. The procedure for creating this document is not easy. But if it is organized correctly, the conclusion of a collective agreement can be a big step towards achieving agreement in the enterprise.

Theoretically, the relationship between an employee and the owner of an enterprise is regulated by employment contracts with employees and the Labor Code (LC). “If an employment contract establishes the relationship between an individual employee and an employer, then a collective agreement includes rules that apply to the entire team,” says Sergei Khramov, chairman of the United Unions of Russia “Sotsprof”, one of the authors of the law “On Collective Agreements”. “Half of the articles of the [Labor] Code [which came into force in 2002] establish minimum requirements that employers can specify in a collective agreement.” For example, the Labor Code of the Russian Federation recommends stipulating in the collective agreement the start and end times of work, break times, alternation of working and non-working days, wage indexation, wages on weekends and holidays and other “details of labor relations”. These details can be any issue of concern to employees and employers, from the amount of annual salary indexation to the use of profanity by managers.

The state encourages companies that have entered into collective agreements. In accordance with Art. 255 of the Tax Code of the Russian Federation, expenses for bonuses and any social benefits specified in the collective agreement, and not in internal documents, are included in the cost price as necessary expenses and the employer does not pay taxes on them.

Not an easy procedure

The presence of a collective agreement at an enterprise makes it possible to prevent possible disagreements between employees and management. In accordance with the law “On Collective Agreements”, both the employer and the employees or their representative body (trade union) can initiate the creation of a document in the company. Having received such a proposal from employees, the manager is obliged to create a conciliation commission and begin a discussion. Any employee of the enterprise can make additions to the draft document. If they are supported by other employees, they can be taken into account in the final version. Three months are allotted for negotiations and the conclusion of a collective agreement, regardless of which party initiated its conclusion. Otherwise, the employer is punished with a fine of up to 50 minimum wages.

“If the parties have unresolved points, they must be recorded in the protocol of disagreements and will be considered in accordance with the law “On the procedure for resolving collective labor disputes,” explains Anna-Stefania Chepik, a labor law lawyer at the law firm Pepeliaev, Goltsblat and Partners. . If a compromise cannot be found, the law allows workers to go on strike.

From the employer's perspective

At enterprises in such problematic industries as coal mining, mechanical engineering, and transport, finding a common language with trade union leaders can be difficult. In this case, the conclusion of a collective agreement allows the company's management to establish the rules of the game. “We are tired of listening to new claims and threats to go on strike from trade union activists,” says Alexander Chubarev, HR Director of the Chelyabinsk Coal Company. “Therefore, they themselves suggested that the workers conclude a collective agreement in order to somehow regulate their complaints and stabilize the situation.” After two months of intense negotiations, a collective agreement was concluded with an obligation for workers to refrain from making additional demands until the next contract was concluded.

At most enterprises of the Ilim Pulp timber industry corporation, collective agreements were concluded back in Soviet times. “The union left the contract practically unchanged and simply extended it with the director for a new term,” explains Andrey Peshkov, adviser to the general director for social issues at Ilim Pulp. “We initiated the conclusion of new agreements because it is much more convenient when the enterprise has a single document that clarifies the obligations of employees and the employer and establishes guarantees for maintaining social peace [at the enterprise].”

The holding's actions are easily explained - the new version of the document included a clause prohibiting employees from initiating or participating in strikes if the employer complies with all the terms of the collective agreement. “If the collective agreement prohibits workers from putting forward additional demands before discussing the draft of a new agreement, the strike will be considered illegal, will be qualified as a failure to fulfill labor obligations and will have corresponding consequences,” explains Anna-Stefania Cepik. According to the Labor Code of the Russian Federation, an employee may be fined or fired. The employer may also demand compensation for losses caused by the strike.

A properly drafted collective agreement makes it possible to prevent workers from participating in protests organized by opponents in the event of so-called corporate wars. For example, in December 2003, during negotiations between Ilim Pulpa and Continental Management in Bratsk, a picket was organized demanding an increase in wages at the Bratsk LPK. According to the chairman of the trade union organization “Bratskkompleksholding” (Bratsk LPK) Lyudmila Nekrasova, “there were no employees of the enterprise among the picket participants, so everything quickly stopped.”

From the employees' perspective

In turn, trade union leaders are becoming more legally literate. “Whereas previously there were always vague formulations in collective agreements: “salaries will be indexed depending on the financial capabilities of the enterprise,” now trade unions demand a specific percentage increase,” notes Alexander Shershukov, editor-in-chief of the trade union newspaper Solidarity.

Severstal employees achieved the inclusion in the collective agreement of a provision on the minimum size of the employee's consumer basket, which is equivalent to the minimum wage of first-class (lowest) workers at the enterprise. The list of products included in the consumer basket of Severstal employees is approved by collective agreements, and the trade union monitors price changes in Cherepovets stores twice a month. “An increase in the cost of the consumer basket by more than 10% is a condition for starting negotiations on wage indexation,” explains Valery Novikov, deputy chairman of the Severstal trade union committee. “In 2004, wages were increased twice.” Restructuring at Severstal enterprises continues, but the trade union managed to stipulate in the collective agreement the preservation of benefits for employees of divisions that are allocated to separate companies for two years. “At the same time, their salary level should not be lower than it was at the time of separation,” adds Novikov.

Along the path of compromise

As practice shows, if you want to, you can find a common language with workers and trade unions even on the most sensitive issues. Last year, the management of Uralkali decided to tie the level of remuneration to the production results of the teams. The enterprise had already concluded a collective agreement; it could only be changed by agreement with the trade unions. “The discussion of the changes dragged on for three months, but ended in a compromise. We explained the advantages of the new system - there is no salary cap for workers in production: the amount of work they earn is the amount they receive,” explained the company’s press service. In turn, the administration of the enterprise agreed with most of the wishes of the workers: partial payment for food, rest in a sanatorium for workers and members of their families, the purchase of firewood for veterans living in houses with stove heating, and the introduction of a fine for delayed wages. Chairman of the Perm Russian Chemical Trade Union Alexey Klein, who participated in the negotiations, cautiously assesses the new collective agreement. “Each of the parties has the right to say that they are dissatisfied with the result of the negotiations, and [on the contrary] can state that a compromise has been reached. Now there is a balance that suggests that Uralkali is a socially oriented enterprise. But if we take the standards that exist in the world, then we have something to strive for,” says Klein.

During the negotiations preceding the conclusion of a collective agreement, each party must be prepared to compromise. After all, even a small problem can grow into a big conflict over time.

“We come to the conclusion that the conclusion of collective agreements should be preceded by a civilized negotiation process, which takes into account the mutual interests of the parties,” says Andrey Peshkov from Ilim Pulp. “In this case, the collective agreement will become, on the one hand, a guarantee of stable business development for the company’s shareholders and, on the other, a guarantee of social security for its employees.”

Ivan Golunov Source: Vedomosti newspaper

Labor function of the employee

Separately, a few words should be said about such an important element of the labor relationship as the employee’s labor function.

Labor function - work in a position in accordance with the staffing table, profession, specialty indicating qualifications, as well as the specific type of work entrusted to the employee (Article 15 of the Labor Code of the Russian Federation).

The employee undertakes to perform the labor function stipulated by the agreement personally. He does not have the right to entrust it to another employee or hire another person to perform the duties assumed under the employment contract.

For more information about the labor function, the definition of the concepts of “position”, “profession”, “specialty”, “qualification”, “staffing table”, “work”, see the article “Labor function as a sign of the employment relationship. Definition of the concept."

Classification and types of employment contracts

There are several reasons for dividing employment agreements. In particular, the following agreements can be distinguished based on their duration: for a definite and indefinite period. The significance from a practical point of view lies in the provision and formation of primary authority. It consists of constant work and receiving income for performing labor functions. Fixed-term agreements can be divided into separate types of contracts.

These include:

• absolute certainty of the period (when an elective position is established);
• relative certainty of deadlines (this applies to persons who enter a position in a company to carry out specific work);
• conditional (such acts are concluded with a person who will work in a specific position for a certain period).

Contents of the employment contract

The requirements for the content of an employment contract as a written document are established in Article 57 of the Labor Code of the Russian Federation.

The contents of the employment contract can be divided into three parts:

• 1) information characterizing the employee and the employer;
• 2) mandatory terms of the employment contract;
• 3) the terms of the employment contract, which the parties, at their discretion, may or may not establish.

The list of mandatory conditions of an employment contract provided for in Part 2 of Article 57 of the Labor Code of the Russian Federation is not exhaustive.

It should be noted that additional terms of the employment contract (Part 4 of Article 57 of the Labor Code of the Russian Federation) cannot worsen the employee’s position in comparison with the established labor legislation, collective agreement, agreements, or local regulations.

What if any information is not included in the employment contract?

Despite the obligatory inclusion of information about the employee and the employer in the employment contract, Part 3 of Article 57 of the Labor Code of the Russian Federation states that if, when concluding an employment contract, any information and (or) conditions from those provided for in parts one and two of the article were not included 57 of the Labor Code of the Russian Federation, this is not a basis for recognizing the employment contract as not concluded or for its termination. If, when concluding an employment contract, certain mandatory information and conditions were not included in it, then it must be supplemented with the missing information and conditions.

Essential, optional conditions

The first are regulated by Art. 57 of the Labor Code of the Russian Federation, these include:

• start date of work, place
• rights, obligations of subjects
• name of specialty, qualification, position, name of labor functions
• remuneration (salary, bonus payments, allowances)
• busy time, weekend rest, vacation, time off (if there are differences from the accepted rules)
• working conditions (benefits and additional payments for hard work dangerous to life and health)
• information about compulsory social insurance related to the work performed

Optional are:

• conditions on a strict ban on the dissemination of information protected by law (commercial, government and other)
• conditions obliging you to work for the employer for any period of time if his money was spent on training
• probationary conditions
• other conditions that do not aggravate the worker’s situation

The trial period does not exceed 3 months. It is generally prohibited to install it:

• for those who, through a competitive test, got to the position
• expectant mothers
• persons under 18 years of age
• for those who are getting a job for the first time after graduating from an educational institution

The employment relationship may be terminated before the end of the probationary period. The employee must be notified of this 3 days in advance, indicating the reasons for dismissal. The employment document is terminated, benefits are not paid, the decision can be appealed in court.

It is allowed to change the terms of the agreement; this can only be done in writing with the consent of the parties.

Fixed-term employment contract

In what cases is a fixed-term employment contract concluded?

Depending on the term of concluding an employment contract, there are two types of employment contracts (Article 58 of the Labor Code of the Russian Federation):

• a) an employment contract concluded for an indefinite period;
• b) fixed-term employment contract, i.e. agreement for a period of up to five years, unless a different period is established by the Code and other federal laws.

As a general rule, employment contracts are concluded for an indefinite period.

It is permissible to conclude a fixed-term employment contract with employees only in specified cases; however, such an agreement must contain an indication of the basis for concluding a fixed-term contract.

Article 59 of the Labor Code of the Russian Federation contains two parts, each of which provides for different types of work (cases), for the performance of which a fixed-term employment contract is concluded with the employee:

• Part 1 of Article 59 of the Labor Code of the Russian Federation - labor relations cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation;
• Part 2 of Article 59 of the Labor Code of the Russian Federation - a fixed-term employment contract can be concluded by agreement of the parties to the employment contract without taking into account the nature of the work to be performed and the conditions for its implementation.

Lists of works (cases) provided for in both Part 1 and Part 2 of Art. 59 of the Labor Code of the Russian Federation are not exhaustive. The Labor Code or other federal laws may provide for other cases when the conclusion of a fixed-term employment contract is either mandatory by law or permitted by agreement of the parties to the employment contract. For example, in accordance with Art. 332 of the Labor Code of the Russian Federation, by agreement of the parties, fixed-term employment contracts can be concluded to fill positions of scientific and pedagogical workers in a higher educational institution; according to Art. 304 of the Labor Code of the Russian Federation, by agreement of the parties, a fixed-term employment contract can be concluded between an employee and an employer - an individual who is not an individual entrepreneur.

In paragraph 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2, it is explained that, when deciding the validity of concluding a fixed-term employment contract with an employee, it should be taken into account that such an agreement is concluded when the employment relationship cannot be established for an indefinite period, taking into account the nature of the work to be done or conditions for its implementation, in particular in cases provided for in Part 1 of Art. 59 of the Labor Code of the Russian Federation, as well as in other cases established by the Labor Code of the Russian Federation or other federal laws (part 2 of article 58, part 1 of article 59 of the Labor Code of the Russian Federation).

Mandatory condition on the term of the contract

The term condition is mandatory for cases of concluding a fixed-term employment contract. If the employment contract does not stipulate its validity period, then the contract is considered concluded for an indefinite period (Part 3 of Article 58 of the Labor Code of the Russian Federation).

Termination by the employer of a fixed-term employment contract

A fixed-term employment contract, unlike an employment contract concluded for an indefinite period, can be terminated by the employer without giving reasons after the expiration of the period for which such an agreement was concluded (Clause 2, Part 1, Article 77 of the Labor Code of the Russian Federation).

Transformation of a fixed-term employment contract into an open-ended one

Article 58 of the Labor Code of the Russian Federation provides for two conditions under which a fixed-term employment contract is transformed into an open-ended one:

• continuation of work by the employee at the end of the employment contract, if neither party has requested termination of the employment contract;
• establishment by the court of the fact of concluding an employment contract for a certain period in the absence of sufficient grounds for this (i.e., in court, a fixed-term employment contract can be recognized as concluded for an indefinite period).

The Labor Code of the Russian Federation does not provide for the opposite option - establishing the validity period for an open-ended contract by amending the employment contract.

What documents are needed

To conclude an agreement, you will need the Labor Code of the Russian Federation, Article 65. Documents presented when concluding an employment contract:

• passport;
• SNILS;
• work book, if any (in the case of the first job, the company must create it independently);
• educational document - diploma or certificate;
• military registration documents.

If necessary, the employer may require a certificate of no criminal record, as well as a certificate of administrative liability for drug use. And that’s all; you cannot ask the average citizen for additional documents.

Applicants for civil service positions will have to obtain a certificate of income when filling which employees are required to provide information on income, expenses, property and property-related liabilities and the Procedure for submitting this information.

When does the employment contract come into force?

In accordance with Part 1 of Art. 61 of the Labor Code of the Russian Federation, an employment contract, as a general rule, is considered to come into force from the day it is signed by both parties - the employee and the employer. Another moment of entry into force of an employment contract may be determined by law, another regulatory legal act or an employment contract.

When the start date of work is not specified in the contract..

If the start day of work when concluding an employment contract is not specified, then the employee must start work the next day after the employment contract enters into force (for example, if the employment contract was signed by the parties on 02/04/2019, then the employee must start work on 02/05/2019).

The actual admission of the employee to work . If the employment contract with the employee was not properly drawn up, but the employee actually began to work with the knowledge or on behalf of the employer or his authorized representative, the employment contract is considered to have come into force from the day the employee was actually admitted to work.

Cancellation of an employment contract . In accordance with Part 4 of Article 61 of the Labor Code of the Russian Federation, in cases where an employee who has entered into an employment contract does not start work within the prescribed period (on the day the work starts), the employer has the right to cancel the employment contract. However, he is not obliged to find out the reason why the employee did not come to work.

Mandatory nature of the employment contract

Contents of the employment contract
The work begins with the conclusion of the contract.

It is impossible to get by with a note in the work book or the issuance of an order.

But in practice the opposite occurs - a person works, although there is no contract.

This is a serious violation of the law.

When a person starts work, the document must be drawn up with him within 3 working days (Article 67 of the Labor Code of the Russian Federation).

If this does not happen, then we can talk about the automatic conclusion of an agreement on the day when the person began working on behalf of or with the permission of the employer.

If the employer says that he does not know about the employment relationship, and he does not intend to draw up an agreement, this is not a reason to deprive a person of honestly earned money. Anyone who allowed someone to work without notifying the employer will be punished.

It is known that in Russia every year several tens of millions of able-bodied people are missing from the official labor market. Some of them are entrepreneurs, but most work illegally. There is no income tax withheld from such employees and there is no need to pay insurance premiums for them.

This problem is solved by holding the employer accountable; labor legislation in this direction is constantly becoming stricter. According to paragraph 3 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation, execution of a civil contract instead of an employment contract, refusal or improper conclusion is punishable by an administrative fine. The size depends on the subject and varies from 5,000 to 100,000 rubles.

Differences between an employment contract and a civil contract

Labor legislation applies only to persons who have entered into employment contracts, not civil contracts.

The above features (main elements) of an employment contract make it possible to distinguish an employment contract from civil contracts related to the use of labor:

• construction contracts (Article 702 of the Civil Code of the Russian Federation);
• contracts for the performance of research, development and technological work (Article 769 of the Civil Code of the Russian Federation);
• contracts for paid services (Article 779 of the Civil Code of the Russian Federation);
• agency agreement (Article 971 of the Civil Code of the Russian Federation);
• agency agreement (Article 1005 of the Civil Code of the Russian Federation).

The differences between an employment contract and a civil contract are as follows:

Target . An employment contract is concluded for the employee to perform a labor function, which, as a rule, is not aimed at achieving any final result. Achieving a specific result in the process of performing a labor function is not the only purpose of the employment contract and does not terminate its validity in connection with the achievement of this result. A civil contract is concluded to perform specific work, the purpose of which is to achieve a specific result.

Submission to internal labor regulations . According to the employment contract, the employee is obliged to obey the internal labor regulations (observe working hours, technological discipline, accurately and timely execute the employer’s orders, etc.). Under a civil contract, the will of the performer (or, for example, the contractor), as a general rule, is autonomous, that is, the method of fulfilling the obligation is chosen by the performer, who can attract other persons for the work, independently establishes the procedure for its implementation, and is not subject to the internal rules of the customer established for his employees.

Ensuring working conditions . According to the employment contract, the employer is obliged to provide the employee with the working conditions provided for by labor legislation (such as, for example, the provision of daily rest, weekends and non-working holidays, paid annual leave, etc.). Under a civil contract, the contractor or performer independently organizes activities to fulfill the obligations stipulated by the contract (determines the necessary working conditions, plans the time required to complete the work, the nature, volume, methods of performing the work for a certain period, etc.). For example, under a contract, as a rule, work is performed using our own materials, using our own forces and means (Clause 1, Article 704 of the Civil Code of the Russian Federation).

Salary . According to the employment contract, the employer undertakes to pay the employee wages in full and on time at least every half month. The employee’s salary is established by the employment contract in accordance with the current employer’s remuneration systems (Articles 135, 136 of the Labor Code of the Russian Federation). The result of work under a civil contract is paid in accordance with the price stipulated by the contract (see Articles 711, 774, 781, 972 of the Civil Code of the Russian Federation).

Social guarantees . An employee who has an employment relationship with an employer is provided with appropriate social guarantees. An employee, unlike a contractor (performer), is subject to compulsory social insurance in case of temporary disability, maternity, industrial accidents and occupational diseases, has the right to all guarantees and compensation established by labor legislation, the employer is limited in the ability to terminate an employment contract with him. Persons working under civil contracts are not provided with such guarantees.

Re-qualification of a civil law contract into an employment contract

If the court finds that a civil law contract actually regulates the labor relations between the employee and the employer, the provisions of labor legislation and other acts containing labor law standards must be applied to such relations, that is, the civil law contract can be reclassified as an employment contract (h 4, Article 11, Article 19.1 of the Labor Code of the Russian Federation, paragraph 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”).

Civil

This type of act is drawn up for the performance of a certain type of service. The parties are the customer and the contractor. When the work specified in the document is completed, the act ceases to be valid. After the customer accepts the services performed, he makes payment in the amount established in the agreement.

The agreement is drawn up in writing. A company uses these types of agreements when it sees no point in opening a new staff position. The reason is the one-time nature of the work performed. It is worth considering that this agreement stipulates that length of service is not taken into account. At the same time, social guarantees are not established for the employee.

Termination of an employment contract at the initiative of the employer

We recommend the publication “Termination, termination of an employment contract, dismissal of an employee. Definitions of concepts, foundations"

We recommend the review on this topic “Dismissal of an employee under Article 81 of the Labor Code of the Russian Federation at the initiative of the employer. Arbitrage practice". This review of judicial practice contains judicial acts issued based on the results of consideration of labor disputes between an employee and an employer on the legality of termination of an employment contract at the initiative of the employer, reinstatement at work, changing the wording of dismissal, recovery of wages for the period of forced absence, collection of compensation for moral damage.