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Contract or agreement? Variety registration of labor relations
2013-06-26
Contract or agreement? Variety registration of labor relations
"Work in our time - it is a great law and a great responsibility" Victor Hugo.
Basic legal act regulating labor relations in Ukraine, is the Labour Code of Ukraine ( hereinafter - the Labour Code), which applies to all employees of enterprises, companies, institutions and organizations regardless of ownership, activities, industry sector, and to persons who are working on the concluded employment contracts with individuals.
Entering into an employment relationship, physical persons conclude, as a rule, labor contract. According to Art . 21 Labor Code, the term of the employment contract means an agreement between the employee and the owner of the enterprise, institution, organization, or its authorized body or person for whom the employee is obligated to perform the work described by this agreement with podlezhaniem internal labor regulations, and the owner of the enterprise, institution, organization, or authorized body or person obligated to pay the employee wages and provide working conditions necessary to perform the work under the labor legislation, collective agreement or agreement of the parties.
The employment contract may be ( Part 1 of Art . 23 CLL): indefinite, which is for an indefinite period of time; one that is on the period of time determined by agreement of the parties, such that it is time to perform a specific job.
Fixed-term employment contract is only in cases where the employment relationship can not be established for an indefinite period, taking into account the nature of the next job or the conditions for its implementation or the interests of the employee, as well as in the cases stipulated by legislative acts.
Item 2 of Part 1 of Art. 23 Labour Code defines the conclusion of fixed-term employment contract, which is concluded for a period determined by agreement of the parties. Are both in hiring and later. The law does not limit the right of the parties to establish the term of the employment contract, the main thing - a written expression of the will of the employee ( the statement ) with the desired length of the employment relationship.
An employment contract for a definite period (Section 2 Part 1 of Art. 23 CLL) is characterized by the employment contract for the duration of a specified task (Section 3, Part 1, Art . 23 CLL) as follows: in the first term of the contract is determined by reference its duration or end date of the contract, and in the second - the parties do not agree on the date or time, and the fact that the employment contract is concluded for the duration of a particular job.
Cases where the employment relationship can not be established for an indefinite period, there are those that are due to: the nature of future work, the conditions of its implementation, the interests of the employee.
Employer is important to pay attention to the fact that the main condition for the end of fixed-term employment contract is mandatory dismissal on the last day of his actions, otherwise such, by virtue of Art . 39-1 CLL agreement will be considered indefinite.
Also will be open-ended and a contract that was renegotiated one or more times in a row (except under Part 2 of Art. 23 CLL when the employment relationship can not be established for an indefinite period with the work to be performed, conditions of its performance and the interests of the employee and in other cases provided by law). The dismissal comes under paragraph 1 of Article 2 hours. 36 Labor Code, without notice by order of the owner (the authority). In this case, the order of dismissal may be issued on the last day of the fixed-term contract or before that with the date of dismissal.
Works and services could be implemented and on the basis of a civil contract (Contract / Service), the terms of which govern the relevant sections of the Civil Code of Ukraine. The main difference between civil law contracts of employment contract - required a specific end result, which is made out acts of completion - the reception of works (services).
It should be noted that such a relationship norms Labor Code, including work rules, social guarantees do not apply. Therefore, taking into account that the Labor Code is intended to protect the rights of workers, civil legal relationships that are ongoing and have no signs of a civil contract may be recognized regulatory bodies with subsequent employment consequences for employer sanctions.
The contract is a special form of employment contract in which the validity period, the rights, duties and responsibilities of the parties (including financially), the terms of financial security and work organization, working conditions of its termination, including early, can be established by agreement of the parties (including 3 tbsp. 21 CLL). The main condition for the possibility of conclusion of the contract - a direct reference in the Act categories of workers, which may enter into a contract.
If the current legislation does not provide for the conclusions of the contract, the owner and the employee is not entitled to enter into this type of employment contract, even if it is concluded by mutual consent of the parties, because it reduces the level of social protection for workers and contrary to the requirements of the Convention on the termination of employment by the employer from 22.06.1982 № 158 ( ratified by Ukraine on 04.02.1994).
Violation of these requirements, in accordance with Art. 9 Labor Code may be grounds for invalidating the contract conditions as those that worsen the situation of the worker. The order contracts approved by the Cabinet of Ministers № 170 of 19.03.1994 (not applicable to state-owned enterprises) , a standard form of contract with the employee MTU approved by order of 15.04.1994 № 23. Moreover, the question of contracting with the heads of companies that are publicly owned, regulated by special regulations.
As for the procedure and the conditions of their employment contracts, contracts, according to Art. 24 Labour Code labor agreement (contract and by analogy) is usually in writing, in duplicate, signed by natural persons (prospective employee) and the employer with proof of his seal.
The written form of the employment contract is mandatory: a set of organized workers, with the employment contract of work in areas of special natural geographical and geological conditions and increased health risk, at the conclusion of the contract, in cases where an employee insists on an employment contract in writing form, with an employment contract with a minor (Article 187 Labour Code), with an employment contract with a natural person (the form of the employment contract and the registration is approved by order of the Ministry of Labor and Social Policy of Ukraine from 08.06.2001 № 260), in other cases provided legislation (legislation , which provide for the need to conclude an employment contract in writing).
In this case, the law allows for the conclusion of an employment contract and verbally. Providing an application for an employment and publication on the basis of the order of enrollment employee to work is the result of an oral agreement of the parties of the contract of employment. At the same time, the employment contract is concluded and if the order or the order is not issued, but the employee actually allowed to work. However, this can be equated with the actual admission to the conclusion of an employment contract only if the employee is allowed to work with the consent of the owner or his agent.
The law may establish special rules of recruitment, such as the election or appointment to office. For example, the rules provided directly by the Law ( LU " On Local State Administrations" ), as well as statutes, regulations businesses. Violation of these rules may result in the dismissal of an employee on the basis of Art. 7 Labor Code.
Under Part 2 of Art. 24 Labour Code as employees citizen must provide a passport (or other document that certifies the person), work-book, and in the cases provided for by law - as an instrument of education ( specialty qualification ), health status, etc.
At the conclusion of the employment contract prohibited from requiring persons who enter the workforce, information about their party and national origin, ancestry, place of residence or stay of registration and documents, the provision of which is not required by law. It is also prohibited to conclude labor contracts with the citizen, who for medical conclusion offered the job, are contraindicated for health reasons.
At the request of the employer, when an employment agreement / contract can be installed probation, the terms of which are prescribed in the order (instructions ) on hiring. With such an order is necessary to inform the employee that is certified by the signature of the latter. Also, such a condition is desirable to prescribe in his own written statement of the employee's hiring. At the same time, during the test on the employee subject to the laws of the Work in its entirety.
The probationary period shall be fixed for: persons who have not attained 18 years of age and younger workers at the end of the professional educational institutions, young professionals at the end of higher education institutions; persons released from the reserve military or alternative (non-military) service, disabled, aimed at work in accordance with the recommendation of the medical and social expertise, while taking a job in another district and the translation work to another company, institution, organization, and in other cases provided by law (Article 16 of the Labor Code).
The probationary period may not exceed three, and in some cases - six months for workers - one month (Article 27 of the Labor Code). If at the end of the test period, the employee continues to work, it is considered as such, that sustained him, and following termination of the employment contract shall be allowed only on a general basis.
If the employee during the period of the test was absent from work due to temporary failure of performance, or other valid reasons, the probation period may be extended by the corresponding number of days during which he was absent. However, this does not necessarily mean its extension, and only allowed the opportunity of the owner or his agent by issuing an order (Order) relevant content, with whom the employee should be made aware of.
Employer by the beginning of the concluded employment contract shall take the following actions, holding that record in professional journals of the employer (Article 29 of the Labor Code).
- Clarification of the employee's rights and obligations, and to inform on receipt of working conditions, where it will work, dangerous and harmful factors, which have not been eliminated, and the possible consequences of their impact on the health of his right to benefits and compensation for work in such conditions in accordance with applicable law and the collective agreement;
- Familiarize the employee with the internal regulations and the collective agreement;
- To determine the employee workplace, provide it with the necessary tools to work;
- Instruct the worker safety , industrial hygiene , occupational safety and fire protection.
Francis Rodolphe Weiss once said: "The aim of every law - to justice." Since the purpose of the Labor Code, first of all, is the solution to the current unstable job market, employers should bear in mind that according to Art . 9 Labor Code of the terms of labor contracts, worsening the situation of workers in comparison with Ukrainian legislation on labor, are invalid.
partner ADCOM Law Firm
Helen Vorontsova
Contract or agreement? Variety registration of labor relations
"Work in our time - it is a great law and a great responsibility" Victor Hugo.
Basic legal act regulating labor relations in Ukraine, is the Labour Code of Ukraine ( hereinafter - the Labour Code), which applies to all employees of enterprises, companies, institutions and organizations regardless of ownership, activities, industry sector, and to persons who are working on the concluded employment contracts with individuals.
Entering into an employment relationship, physical persons conclude, as a rule, labor contract. According to Art . 21 Labor Code, the term of the employment contract means an agreement between the employee and the owner of the enterprise, institution, organization, or its authorized body or person for whom the employee is obligated to perform the work described by this agreement with podlezhaniem internal labor regulations, and the owner of the enterprise, institution, organization, or authorized body or person obligated to pay the employee wages and provide working conditions necessary to perform the work under the labor legislation, collective agreement or agreement of the parties.
The employment contract may be ( Part 1 of Art . 23 CLL): indefinite, which is for an indefinite period of time; one that is on the period of time determined by agreement of the parties, such that it is time to perform a specific job.
Fixed-term employment contract is only in cases where the employment relationship can not be established for an indefinite period, taking into account the nature of the next job or the conditions for its implementation or the interests of the employee, as well as in the cases stipulated by legislative acts.
Item 2 of Part 1 of Art. 23 Labour Code defines the conclusion of fixed-term employment contract, which is concluded for a period determined by agreement of the parties. Are both in hiring and later. The law does not limit the right of the parties to establish the term of the employment contract, the main thing - a written expression of the will of the employee ( the statement ) with the desired length of the employment relationship.
An employment contract for a definite period (Section 2 Part 1 of Art. 23 CLL) is characterized by the employment contract for the duration of a specified task (Section 3, Part 1, Art . 23 CLL) as follows: in the first term of the contract is determined by reference its duration or end date of the contract, and in the second - the parties do not agree on the date or time, and the fact that the employment contract is concluded for the duration of a particular job.
Cases where the employment relationship can not be established for an indefinite period, there are those that are due to: the nature of future work, the conditions of its implementation, the interests of the employee.
Employer is important to pay attention to the fact that the main condition for the end of fixed-term employment contract is mandatory dismissal on the last day of his actions, otherwise such, by virtue of Art . 39-1 CLL agreement will be considered indefinite.
Also will be open-ended and a contract that was renegotiated one or more times in a row (except under Part 2 of Art. 23 CLL when the employment relationship can not be established for an indefinite period with the work to be performed, conditions of its performance and the interests of the employee and in other cases provided by law). The dismissal comes under paragraph 1 of Article 2 hours. 36 Labor Code, without notice by order of the owner (the authority). In this case, the order of dismissal may be issued on the last day of the fixed-term contract or before that with the date of dismissal.
Works and services could be implemented and on the basis of a civil contract (Contract / Service), the terms of which govern the relevant sections of the Civil Code of Ukraine. The main difference between civil law contracts of employment contract - required a specific end result, which is made out acts of completion - the reception of works (services).
It should be noted that such a relationship norms Labor Code, including work rules, social guarantees do not apply. Therefore, taking into account that the Labor Code is intended to protect the rights of workers, civil legal relationships that are ongoing and have no signs of a civil contract may be recognized regulatory bodies with subsequent employment consequences for employer sanctions.
The contract is a special form of employment contract in which the validity period, the rights, duties and responsibilities of the parties (including financially), the terms of financial security and work organization, working conditions of its termination, including early, can be established by agreement of the parties (including 3 tbsp. 21 CLL). The main condition for the possibility of conclusion of the contract - a direct reference in the Act categories of workers, which may enter into a contract.
If the current legislation does not provide for the conclusions of the contract, the owner and the employee is not entitled to enter into this type of employment contract, even if it is concluded by mutual consent of the parties, because it reduces the level of social protection for workers and contrary to the requirements of the Convention on the termination of employment by the employer from 22.06.1982 № 158 ( ratified by Ukraine on 04.02.1994).
Violation of these requirements, in accordance with Art. 9 Labor Code may be grounds for invalidating the contract conditions as those that worsen the situation of the worker. The order contracts approved by the Cabinet of Ministers № 170 of 19.03.1994 (not applicable to state-owned enterprises) , a standard form of contract with the employee MTU approved by order of 15.04.1994 № 23. Moreover, the question of contracting with the heads of companies that are publicly owned, regulated by special regulations.
As for the procedure and the conditions of their employment contracts, contracts, according to Art. 24 Labour Code labor agreement (contract and by analogy) is usually in writing, in duplicate, signed by natural persons (prospective employee) and the employer with proof of his seal.
The written form of the employment contract is mandatory: a set of organized workers, with the employment contract of work in areas of special natural geographical and geological conditions and increased health risk, at the conclusion of the contract, in cases where an employee insists on an employment contract in writing form, with an employment contract with a minor (Article 187 Labour Code), with an employment contract with a natural person (the form of the employment contract and the registration is approved by order of the Ministry of Labor and Social Policy of Ukraine from 08.06.2001 № 260), in other cases provided legislation (legislation , which provide for the need to conclude an employment contract in writing).
In this case, the law allows for the conclusion of an employment contract and verbally. Providing an application for an employment and publication on the basis of the order of enrollment employee to work is the result of an oral agreement of the parties of the contract of employment. At the same time, the employment contract is concluded and if the order or the order is not issued, but the employee actually allowed to work. However, this can be equated with the actual admission to the conclusion of an employment contract only if the employee is allowed to work with the consent of the owner or his agent.
The law may establish special rules of recruitment, such as the election or appointment to office. For example, the rules provided directly by the Law ( LU " On Local State Administrations" ), as well as statutes, regulations businesses. Violation of these rules may result in the dismissal of an employee on the basis of Art. 7 Labor Code.
Under Part 2 of Art. 24 Labour Code as employees citizen must provide a passport (or other document that certifies the person), work-book, and in the cases provided for by law - as an instrument of education ( specialty qualification ), health status, etc.
At the conclusion of the employment contract prohibited from requiring persons who enter the workforce, information about their party and national origin, ancestry, place of residence or stay of registration and documents, the provision of which is not required by law. It is also prohibited to conclude labor contracts with the citizen, who for medical conclusion offered the job, are contraindicated for health reasons.
At the request of the employer, when an employment agreement / contract can be installed probation, the terms of which are prescribed in the order (instructions ) on hiring. With such an order is necessary to inform the employee that is certified by the signature of the latter. Also, such a condition is desirable to prescribe in his own written statement of the employee's hiring. At the same time, during the test on the employee subject to the laws of the Work in its entirety.
The probationary period shall be fixed for: persons who have not attained 18 years of age and younger workers at the end of the professional educational institutions, young professionals at the end of higher education institutions; persons released from the reserve military or alternative (non-military) service, disabled, aimed at work in accordance with the recommendation of the medical and social expertise, while taking a job in another district and the translation work to another company, institution, organization, and in other cases provided by law (Article 16 of the Labor Code).
The probationary period may not exceed three, and in some cases - six months for workers - one month (Article 27 of the Labor Code). If at the end of the test period, the employee continues to work, it is considered as such, that sustained him, and following termination of the employment contract shall be allowed only on a general basis.
If the employee during the period of the test was absent from work due to temporary failure of performance, or other valid reasons, the probation period may be extended by the corresponding number of days during which he was absent. However, this does not necessarily mean its extension, and only allowed the opportunity of the owner or his agent by issuing an order (Order) relevant content, with whom the employee should be made aware of.
Employer by the beginning of the concluded employment contract shall take the following actions, holding that record in professional journals of the employer (Article 29 of the Labor Code).
- Clarification of the employee's rights and obligations, and to inform on receipt of working conditions, where it will work, dangerous and harmful factors, which have not been eliminated, and the possible consequences of their impact on the health of his right to benefits and compensation for work in such conditions in accordance with applicable law and the collective agreement;
- Familiarize the employee with the internal regulations and the collective agreement;
- To determine the employee workplace, provide it with the necessary tools to work;
- Instruct the worker safety , industrial hygiene , occupational safety and fire protection.
Francis Rodolphe Weiss once said: "The aim of every law - to justice." Since the purpose of the Labor Code, first of all, is the solution to the current unstable job market, employers should bear in mind that according to Art . 9 Labor Code of the terms of labor contracts, worsening the situation of workers in comparison with Ukrainian legislation on labor, are invalid.
partner ADCOM Law Firm
Helen Vorontsova