Difference employment contract from civil law

For proper organization During the production process, a company needs to know the rules that allow it to distinguish between an employment contract and a civil contract for the performance of work or the provision of services. IN this article Let's consider the difference between labor relations and civil relations based on contracts for the performance of work or the provision of services.

So, when hiring an individual, the head of the organization, first of all, must decide on the type of agreement to be concluded, which will regulate the relationship between them. These relations can be regulated by the conclusion of an employment contract or a civil law contract.

According to Article 67 Labor Code Russian Federation(hereinafter referred to as the Labor Code of the Russian Federation) the employment contract is concluded in writing, 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.

Let us note that an employment contract that is not drawn up 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 3 working days from the date factual assumption employee to work.

Thus, labor Relations between an individual employee and an employer-organization arise regardless of whether an employment contract has been drawn up or not.

In accordance with Article 57 of the Labor Code of the Russian Federation, the employment contract specifies:

– last name, first name, patronymic of the employee and name of the employer (last name, first name, patronymic of the employer - an individual) who entered into an employment contract;

– information about documents proving the identity of the employee and the employer - an individual;

– an identification number taxpayer (for employers, with the exception of employers - individuals who are not individual entrepreneurs);

– information about the employer’s representative who signed the employment contract, and the basis on which he is vested with the appropriate powers;

– place and date of conclusion of the employment contract.

Mandatory for inclusion in the employment contract are following conditions:

– place of work, and in the case when an employee is hired to work in a branch, representative office or other separate structural unit of the organization located in another area – place of work indicating the separate structural unit and its location;

– labor function (work according to the position in accordance with the staffing table, profession, specialty indicating qualifications; specific type work assigned to the employee). If in accordance with the Labor Code of the Russian Federation, other federal laws Since the performance of work in certain positions, professions, specialties is associated with the provision of compensation and benefits or the presence of restrictions, then the name of these positions, professions or specialties and qualification requirements they must comply with the names and requirements specified in qualification reference books, approved in the manner established by the Government of the Russian Federation, or relevant provisions professional standards;

– the date of commencement of work, and in the case where a fixed-term employment contract is concluded, also its validity period and the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract in accordance with the Labor Code of the Russian Federation or other federal law;

– conditions of remuneration (including the size of the tariff rate or salary ( official salary) employee, additional payments, allowances and incentive payments);

– mode of working hours and rest time (if for of this employee it is different from general rules, operating at of this employer);

– guarantees and compensation for work with harmful and (or) hazardous conditions labor, if the employee is hired under appropriate conditions, indicating the characteristics of working conditions in the workplace;

– conditions determining in necessary cases nature of the work (mobile, traveling, on the road, other nature of work);

– working conditions in the workplace;

– mandatory condition social insurance employee in accordance with the Labor Code of the Russian Federation and other federal laws;

– other conditions in cases provided for labor legislation and other regulatory legal acts, containing labor law norms.

Civil contract according to Article 420 Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) recognizes an agreement between two or more persons to establish, change or terminate civil rights and responsibilities. The rules of two- and multilateral transactions, provided for by Chapter 9 of the Civil Code of the Russian Federation.

Obligations arising from the contract are subject to general provisions on obligations (Articles 307 - 419), unless otherwise provided by the rules of Chapter 27 of the Civil Code of the Russian Federation and the rules on certain types agreements contained in the Civil Code of the Russian Federation.

For contracts concluded by more than two parties, the general provisions on the contract apply, unless this contradicts the multilateral nature of such contracts.

When executing a civil contract, it is necessary to take into account the volume of work and the deadline for its completion, since payment is made based on these parameters, which are reflected in the bilateral act.

There are many types of civil law contracts, for example, work contract, agency contract, lease agreement, contract paid provision services, commission agreement, contract author's order. Relations under a civil contract are regulated by civil law.

Let's consider the main features employment contract from civil law.

When choosing the type of contract, the head of the organization must take into account the nature upcoming work. As follows from Article 15 of the Labor Code of the Russian Federation, with an employee, work activity which is carried out on permanent basis For a certain position, profession, specialty, it is necessary to conclude an employment contract. Although in in some cases an employment contract can also be concluded for the performance of obviously defined work (Article 59 of the Labor Code of the Russian Federation); when an employment relationship arises, it is not the result of labor that is important, but the labor process itself.

Upon concluding an employment contract, the employee is enrolled in the organization’s staff and performs labor functions in accordance with the employer's staffing schedule. In some cases, an employee may be hired for a non-staff position.

A civil contract can be concluded by an organization with an individual to perform certain work, or it can be concluded for the provision of services of a one-time or periodic nature (Chapter 39 of the Civil Code of the Russian Federation). Thus, according to Articles 702, 779 of the Civil Code of the Russian Federation civil law relations are focused only on the result of the performer’s activities, for example, under a contract, one party (contractor) undertakes to fulfill the instructions of the other party (customer) certain work and deliver its result to the customer, and the customer undertakes to accept the result of the work and pay for it.

If there is no result, we can talk about the party’s failure to fulfill its obligations.

Thus, the subject of a civil law contract is the specific end result of the work performed or service provided.

An employment contract can be concluded as follows: indefinite term, and for a certain period of no more than five years (fixed-term employment contract), unless a different period is established by the Labor Code of the Russian Federation and other federal laws (Article 58 of the Labor Code of the Russian Federation). At the same time, a fixed-term employment contract can be concluded only in cases provided for in Article 59 of the Labor Code of the Russian Federation.

The period for providing services or performing work is prerequisite civil contract, as follows from Articles 708, 783 of the Civil Code of the Russian Federation. Without it, the contract is considered not concluded.

If an employment contract has been concluded with an individual, then he is obliged to obey the internal rules labor regulations employer, as follows from Articles 15, 21 and 56 of the Labor Code of the Russian Federation. That is, the employee, while performing his job duties, must comply with the working hours established by the employer (duration working week, work with irregular working hours, duration daily work, start and end times of work, time of breaks in work, number of shifts per day, and so on). Please note that for failure to comply or improper execution labor responsibilities According to Article 192 of the Labor Code of the Russian Federation, the employer has the right to involve the employee in disciplinary liability.

When concluding a civil contract, the contractor or performer has the right to independently determine the procedure for performing work and providing services. In other words, the contractor and performer are not obliged to comply with the work and rest schedule established by the employer. They independently determine the time required to perform work, provide services under the contract, and organize their workplaces. Therefore, disciplinary sanctions cannot be applied to persons who have entered into civil contracts for violation labor discipline, as well as internal labor regulations, orders, instructions of the manager.

Work under an employment contract must be performed only personally by the employee. It cannot be entrusted to another person. Article 56 of the Labor Code of the Russian Federation emphasizes the personal nature of performing work under an employment contract.

Carrying out work or providing services under a civil contract legal nature just in person is not a requirement. As follows from Articles 706, 780 of the Civil Code of the Russian Federation, a contractor or performer may involve other persons in the performance of their obligations, unless the contract provides for the obligation of the contractor or performer to perform the work provided for in the contract personally.

An employee who has entered into an employment contract receives wages based tariff rates or salaries regardless of the result achieved (Articles 132, 135 of the Labor Code of the Russian Federation), and at least every half month on days established by rules internal labor regulations, collective agreement, employment contract (Article 136 of the Labor Code of the Russian Federation).

A person who has entered into a civil contract receives remuneration for the final result, not for the work of the contractor or performer itself. The amount of this remuneration is established by agreement of the parties. If the work is not completed due to the fault of the contractor, then the customer pays for part of the work performed or does not pay for it at all. Remuneration under civil law contracts is calculated on the basis of a signed acceptance certificate for work (rendering services).

Please note that when concluding a civil contract, the customer is obliged to pay for the work performed or service provided within the time frame specified determined by agreement. For violation of payment terms for work performed or services provided, the customer bears responsibility established by Article 395 of the Civil Code of the Russian Federation.

When concluding an employment contract, the employer must formalize following documents: personal statement employee, an order for hiring a position in accordance with the staffing table, make entries in the work book.

If a civil law agreement is concluded, then these documents are not drawn up.

Thus, the advantage of a civil contract is that the customer, the organization, pays remuneration for the final result (for work performed or service provided). At the same time, the customer does not need to charge the remuneration amounts insurance premiums on required types social insurance in the part credited to the Social Insurance Fund of the Russian Federation, as well as insurance premiums against accidents at work and occupational diseases(unless such an obligation is expressly provided for in the contract). This is indicated by paragraph 2 of part 3 of article 9 of the Federal Law of July 24, 2009 No. 212-FZ “On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, Federal Fund compulsory medical insurance", paragraph 1 of Article 20.1 of the Federal Law of July 24, 1998 No. 125-FZ "On compulsory social insurance against industrial accidents and occupational diseases".

In addition, the customer is not obliged to provide his contractor with work, and the customer does not need to provide the contractor or performer with paid leave, pay compensation upon dismissal, and pay for his temporary disability.

If an organization enters into a civil contract with an individual, and this contract contains conditions confirming labor character agreement, then such an agreement may be recognized by the court as a labor agreement, and, as a result, the organization will have to formalize work book and provide all benefits provided for by the labor legislation of the Russian Federation, including paying the employee all unpaid amounts - vacation pay, sick leave and others.

Note!

Recognition of relations arising on the basis of a civil law contract as labor relations can be carried out by the court if the individual who is the executor under the specified contract appealed directly to the court, or based on materials (documents) sent state inspection labor, other bodies and persons possessing the necessary powers for this purpose in accordance with federal laws. This is indicated by Article 19.1 of the Labor Code of the Russian Federation.

If civil law relations have been recognized by the court as labor relations, then such labor relations are considered to have arisen from the date of actual admission of the individual who is the executor under the civil law contract to the execution of the provisions stipulated the specified agreement duties (part 4 of article 19.1 of the Labor Code of the Russian Federation).

Keep in mind that the conclusion of a civil contract that actually regulates labor relations, on the basis of paragraph 3 of Article 5.27 of the Code of the Russian Federation on administrative offenses(hereinafter referred to as the Code of Administrative Offenses of the Russian Federation), entails the imposition administrative fine:

- on officials in the amount of 10,000 to 20,000 rubles;

– on persons carrying out entrepreneurial activity without forming a legal entity - from 5,000 to 10,000 rubles;

– for legal entities – from 50,000 to 100,000 rubles.

Behind re-commitment similar offense punishment is applied in the form (clause 5 of article 5.27 of the Code of Administrative Offenses of the Russian Federation):

– disqualification for a period of 1 to 3 years – in relation to officials;

– a fine of 30,000 to 40,000 rubles – in relation to persons carrying out entrepreneurial activities without forming a legal entity;

– a fine of 100,000 to 200,000 rubles – in relation to legal entities.

If a civil contract with an individual is drawn up taking into account all the above requirements, then it will be quite difficult for the inspection authorities to reclassify it as a labor contract. This is confirmed by the decisions of the FAS Ural district dated April 29, 2013 No. F09-2424/13 in case No. A76-15262/2012, dated January 20, 2014 No. F09-14231/13 in case No. A60-12493/2013, where the court indicated that the content controversial treaties does not confirm the existence of an employment relationship between the organization and individuals, since payment for work was made based on the results of work after drawing up acceptance certificates for completed work, contracts were concluded for a period of certain period, and after the end of the period their validity was not extended, if necessary, new contracts were concluded, there were no conditions for compliance with internal labor regulations, and maintenance of work books was not provided.

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An employee can work for a company on the basis of two types of agreement: labor and civil law. There are very significant differences between them that you need to become familiar with before applying for a job.

Concept and types of civil law type of document

A civil law contract (CLA) is an agreement that can be concluded between a FL and a LE, a FL and a FL, a LE and a LE. This document records the emergence of labor relations, their changes and completion. The concept of GPA is disclosed in Article 420 of the Civil Code of the Russian Federation. The clauses of the agreement can be changed at the request of the parties, if this does not contradict the law (according to Article 421 of the Civil Code of the Russian Federation). The agreement differs in its content:

• Transfer of property (for example, purchase and sale).
• Execution of certain works.
• Provision of services.

The conclusion of the agreement is regulated by Article 432 of the Civil Code of the Russian Federation. GPD includes (Article 702 of the Civil Code of the Russian Federation) and an agreement for the provision of services for which remuneration is expected (Article 779 of the Civil Code of the Russian Federation).

How does a GPA differ from a standard agreement?

The following are the differences between a civil law contract and an employment contract:

• When drawing up an employment contract (ET), you must issue an order to hire an employee, as well as fill out a personal T-2 card. A civil agreement does not imply the execution of other documents.
• In case of TD, the employee must hand over the work book to the employer. It is filled in accordingly. The GPA does not require entering information into the work book.
• At TD, with legal point From a perspective, there are two sides to the relationship: the employee and the employer. With GPA, this is the performer and the customer.
• TD is different individual character. It is concluded with one employee. Work under the contract must be performed by one specialist. Services under a civil agreement can be delegated to third parties.
• Subject of TD - work in a certain specialization, performed on the basis staffing table companies. The subject of the GPD is services that must be performed within a given time frame.
• An employment contract involves consideration of the employee’s work within the framework long term. The emphasis is on continuous activity. IN civil agreement indicated concrete work which must be performed by a specialist. The emphasis is on the results of activities. If the result is unsatisfactory, the customer may terminate the contract.
• The employment contract implies a standard salary payment: twice a month. A person receives funds in any case; payments are not determined by the result of work. The salary should not be less. At GPA order payment is specified in the agreement. For example, an employee may request payment in advance. Alternative options– transfer of funds after the work is completed, payment in installments. Payment will depend on performance results. Based on the results of the service performed, a report is drawn up. The amount of the performer's remuneration is determined solely by the agreement. It may be less than the minimum wage.
• In case of TD, the employee is obliged to obey local regulations company and carry out the orders of their manager. At GPA performer must not obey internal regulations. He determines the order of his work independently.
• By TD products intellectual work employees belong to the employer. With GPA, until payment is made, they are the property of the performer.
• An employment contract is usually concluded for an indefinite period. The civil contract must indicate specific deadlines.
• With TD, the employee has the right to paid leave. He can also go on sick leave, during which benefits are paid. With GPD, the performer can rest at any time if this does not affect the results of the work. Vacation is unpaid, as is sick leave.

We can say that GPD involves working on a freelance basis. Usually it is compiled with “freelance artists” working with several customers at once.

Advantages and Disadvantages of the Standard Agreement

An employment contract is the most common form of agreement between parties to a working relationship.

For an employee

It is beneficial for an employee to enter into a TD for the following reasons:

• Guaranteed salary in established by the agreement size.
• Upon completion probationary period the specialist is included in the company's staff.
• The employee receives the entire list of guarantees: dismissal benefits, salary twice a month, various guarantees for employees with children, annual paid leave.
• An employee has the right to demand that the employer provide comfortable conditions for himself.
• Rights to social and health insurance, payments for which are made by the employer.
• The employee is accrued length of service, on the basis of which the accumulative part pensions.

However, not all employees strive to conclude an employment contract, as it is not without its drawbacks. In particular, within of this agreement the employee is “tied” to the company. He must act within the framework of local regulations: come to work on time, carry out all the instructions of the employer, go on vacation according to the staffing schedule.

For the employer

The employer may require the employee with whom the TD is concluded to fulfill his duties:

• Compliance.
• Carrying out instructions from the employer.
• Notice of dismissal 2 weeks in advance.

Important! If an employee violates the regulations, the employer has the right to impose punishment: disciplinary action, deprivation of bonus, dismissal.

The manager, based on the TD, can demand a lot from the employee, but he must give in return all the necessary guarantees:

• Timely payment of wages not lower than the minimum wage.
• Deductions to various funds.
• Providing paid leave.
• Benefits for employees with children.
• Providing maternity leave.

If the employer does not provide social guarantees, the employee has the right to file a complaint with the labor inspectorate.

Pros and cons of a civil contract

Civil contracts are becoming increasingly popular. And there are reasons for this.

For the employer

GPA is characterized by the following advantages:

• The employee has obligations. He must complete the work efficiently and on time.
• No need to arrange workplace, provide social package, make contributions to health and social insurance.
• Tax benefits. In particular, there is no need to pay unified social tax.
• The employer does not pay for the work process, but exclusively for the result.

However, GPA is not without its drawbacks:

• It is impossible to control the work of an employee.
• It is difficult to hold an employee accountable for violating the routine.

GPA does not imply great responsibility on the part of the employer, but it also lacks tools for control over employees.

For an employee

GPA has the following advantages for the employee:

• The ability to independently manage your time.
• Opportunity to work for several companies.
• Relative freedom.

The main disadvantage of a civil agreement is the lack of guarantees and payments to various funds. But despite this, it is believed that the GPS will soon supplant standard agreements.

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The difference between labor and civil contracts

In a situation where an employer hires a person to perform an activity that is clearly defined in time, the choice arises between concluding a fixed-term employment contract and a civil law one. To make a reasoned decision, it is advisable to highlight the differences between an employment contract and a civil law contract.

Comparative characteristics of civil law and labor contracts

In practice, there are cases when the employer - entity makes a decision on which type of contract to choose. The main point to pay attention to is the nature of the work ahead: this is an activity aimed at a specific business transaction with a predictable result (for example, holding a tender) and for a certain period execution, or it is the process of doing work, valuable in itself.

Difference between an employment contract and a civil law one: table

Replacement of an employment contract with a civil law one

Replacing an employment contract with a civil law one is not allowed in cases where there are labor relations. Responsibility for violation of this norm, defined in 19.1 of the Labor Code of the Russian Federation, is the re-qualification of the contract into an employment contract, recognition of the parties as actually an employee and an employer. In addition, it is possible to impose a fine under Part 4 of Article 5.27 of the Administrative Code, which provides for a fine for a single violation of 50,000 to 100,000 rubles per legal entity for each fact of such an offense. If 5 such agreements are found, the fine may be increased proportionally.

Advantages of GPD for the employer (customer) and employee (performer)

For the employer (customer), the main advantage when conclusion of the GAP is to save money on social benefits ( sick leave, vacation, etc.), payment for the final result of work on the basis of a certificate of completion. In relation to such employees (performers under the GPA), the employer does not bear labor safety risks, does not pay for downtime, and is not obliged to provide materials and raw materials. There is also no need to keep military records, make an entry in the work book, or do anything else. personnel records management.

For the employee (performer), the advantage will be the ability to enter into an unlimited number of similar agreements, no need to comply with LNA and obey the employer’s internal labor regulations, no need for a 2-week notice of termination of relations, liability under the Civil Code of the Russian Federation, equal partnerships with the employer.

Disadvantages of GPA for the employer (customer) and employee (performer)

There is a significant risk for the employer when replacing an employment contract with a civil law one, since liability for violation of Article 19.1 of the Labor Code of the Russian Federation has increased since January 1, 2014. It is also impossible to bring to disciplinary liability or regulate the work schedule of the performer.

Disadvantages for the employee (performer) are the lack social payments and guarantees, the temporary nature of the work, payment based on results upon completion of work, non-inclusion in the work experience, there is no security guaranteed by the Labor Code of the Russian Federation.