The concept of a contract - the pros, cons and difference from the employment contract. What is the difference between a contract and a contract

The legislation provides for the registration of employees not only under an employment contract, but also under a civil law contract or paid services

Consider how things are with the employer, if a contract is drawn up for employees under a civil contract.

The Labor Code requires that an employment contract be concluded with each person hired.

Written conclusion employment contract means that the employee works in the organization in a certain (specified in the employment contract) specialty, qualification, position.

The employee must obey the internal labor regulations (come to work, and on time, etc.), for violation of these rules, the employee can be subject to disciplinary liability.

Details and conditions that must be in an employment contract with an employee are established by Article 57 of the Labor Code of the Russian Federation:

• surname,
• patronymic of the employee
• name of the employer (or last name, first name, patronymic of the employer - an individual);

essential terms of the contract:

• place of work (including structural unit);
• date of commencement of work;
• the name of the position, specialty, profession and qualification in accordance with the staff list or a specific labor function;
• rights and obligations of the employee and the employer;
• characteristics of working conditions, compensation and benefits to employees for work in difficult, harmful or dangerous conditions;
• mode of work and rest (if for this employee it differs from the general rules established in the organization);
• terms of remuneration (including the size of the tariff rate or official salary of the employee, additional payments, allowances and incentive payments);
• types and conditions of social insurance directly related to labor activity.

The employer, in turn, is obliged to pay the employee a salary, the amount of which cannot be lower than the minimum wage, to ensure proper working conditions (observe labor protection requirements, etc.).

The presence of employees in the organization involves the maintenance of personnel documentation (orders, personal cards of employees, work books, etc.).

By concluding an employment contract, the organization, in addition, receives many obligations (to provide the employee with vacation, as well as all other guarantees and benefits provided for by the Labor Code of the Russian Federation). Failure to comply with these obligations results in liability under the Code of Administrative Offenses of the Russian Federation.

Employees under an employment contract cannot be fired at any time without meeting certain conditions.

As you can see, the conclusion of an employment contract with an employee for an organization is a rather troublesome procedure, so employers conclude civil law contracts.

Under a civil law contract, benefits and compensations under the Labor Code of the Russian Federation do not apply at all to an employee, since a civil law contract is based on principles completely different from those of an employment contract.

The civil law contract does not burden the employer with a number of obligations:

• provide work or pay for downtime;
• provide paid leave after six months or pay compensation upon dismissal;
• pay sick leave;
• pay wages on time;
• terminate the contract only on the grounds provided for by the Labor Code,
• from the remuneration it is not necessary to pay insurance premiums for compulsory insurance against accidents at work and occupational diseases (unless the obligation to accrue them is expressly stipulated by the terms of the contract),
• these remunerations do not need to accrue UST in the part that is paid to the FSS of Russia.

According to a civil law contract, it is not the process of work that is important, but its result, which the employee is obliged to hand over to the customer. Based on this, the employee himself organizes the process of his work. There is no need to set a fixed working day for it. If the employee works, under a work contract, there is no liability for absenteeism, lateness, etc. there can't even be a word.

A similar situation occurs with remuneration; under civil contracts, payment is made solely for the result. Consequently, it is no longer necessary to pay wages every month, and the amount of wages is indicated in the contract and is not necessarily linked to the minimum wage.

According to civil contracts, employees do not need to provide vacations, pay sick leave, etc., but acts of acceptance and transfer of work (services), documents confirming payment, etc. are required.

In comparison, it turns out that a civil law contract is much more beneficial for the employer.

But at the same time, the employer, who has chosen a civil contract for the registration of employees, is in danger in the form of recognition by the court of the contract concluded with the employee not as civil, but as labor.

The court can do this both at the request of the labor inspectorate, and at the “desire” of the employee himself. If the court recognizes that the employee has concluded not a civil law contract, but a labor contract, the employer will have to draw up a work book and provide all the benefits under the Labor Code of the Russian Federation. Including it will be necessary to pay the employee all the underpaid amounts - vacation pay, sick leave, business trips.

The difference between a civil contract and an employment contract is clarified by paragraph 3 of the letter of the Ministry of Taxes of the Russian Federation dated June 19, 2001 No. SA-6-07 / 463 @ "On the direction of clarifications"

To civil law contracts, the subject of which is the performance of work (rendering of services) and remuneration, for which they are subject to a single social tax (contribution) (with the exception of the part of the tax payable to the Social Insurance Fund Russian Federation), include contracts for the performance of work (provision of services) concluded in accordance with the Civil Code of the Russian Federation.

In accordance with Article 420 of the Civil Code of the Russian Federation, an agreement between two or more persons on the establishment, change or termination of civil rights and obligations is recognized as an agreement.

These are the contracts:

• contract,
• rent,
• paid provision services,
• transportation,
• transport expedition,
• storage,
• assignments,
• commissions,
• trust management of property,
• agency contract.

Paragraph 2 of Article 421 of the Civil Code of the Russian Federation provides that the parties may conclude an agreement, both provided for and not provided for by law or other legal acts.

According to paragraph 3 of Article 421 of the Code, the parties may conclude an agreement that contains elements of various agreements provided for by law or other legal acts (mixed agreement). To the relations of the parties under a mixed contract, the rules on contracts, the elements of which are contained in the mixed contract, are applied in the relevant parts, unless otherwise follows from the agreement of the parties or the essence of the mixed contract.

According to a civil law contract, it is performed individually - a specific task. The subject of such a contract is the final result of labor.

For example, under a work contract in accordance with Article 702 of the State Civil Code of the Russian Federation, the contractor undertakes to perform, on the instructions of the customer, the specific work stipulated by the contract and hand over its result.

Those working under civil law contracts independently determine the methods and ways of fulfilling an order. For them, the final result of the work is important - the fulfillment of the terms of the contract in the proper quality and within the agreed time.

Under civil law contracts, one party performs certain types of work or services stipulated by the contract (regardless of qualification or specialty, as well as position) for the other party.

Civil law contracts are concluded in accordance with the requirements of civil law. These contracts include:

• work agreement,
• service contract,
• commission agreement,
• agency contract,
• copyright agreement.

The procedure for concluding the above agreements, the rights and obligations of the parties are determined by the Civil Code of the Russian Federation.

The organization has the right to conclude a civil law contract:

• with an employee of the organization
• with a person who is not in an employment relationship with the organization.
• The organization has the right to determine under which contract it will hire a person:
• by labor
• civil law.

Civil law contracts with third parties are concluded primarily due to the lack of necessary specialists In the organisation.

If the organization has entered into a civil law contract with an employee who is on the staff of this organization, then the employee must perform the list of work under the concluded contract during off-hours, otherwise this work considered part-time work.

Under civil law contracts, the final result of the work performed, services rendered is paid, the fact of the work (rendering of services) is confirmed by the act of acceptance and delivery.

A special form of the acceptance certificate has not been established, but it can be drawn up as an arbitrary form, or you can use the form that is provided for the acceptance and delivery of work under an employment contract (form No. T-73). The form of delivery - acceptance was approved by the Decree of the State Statistics Committee of Russia dated April 06, 2001 No. 26. “On approval of unified forms of primary accounting documentation for accounting for labor and its payment” (form No. T-73 is given in Appendix No. 1).

The civil law contract must include the following points:

• start and finish dates,
• order of payment for work;
• a list of works (services) to be performed (rendered) by the employee;
• the order of delivery and acceptance of works;
• requirements for the quality of work;
• liability of the parties for violation of the terms of the contract.

If an employee, under a work contract, incurs expenses related to the performance of work, then the organization is obliged to reimburse them to the employee, the procedure for paying such expenses and the corresponding amount of remuneration are established in the contract.

Taxation of remuneration under a contract

The procedure for taxation of remuneration under a work contract depends on whether the person who works under such a contract is individual entrepreneur or not.

If your employee is an individual entrepreneur, then he is obliged to accrue and pay all taxes for himself. Therefore, the organization should not do this.

If the employee is not an entrepreneur, then his remuneration under a civil law contract is subject to:

• personal income tax;
• UST (including contributions to mandatory pension insurance), with the exception of that part of it that is transferred to the FSS;
• premiums for insurance against accidents at work and occupational diseases, if such insurance is provided for in the contract.

Compensation accounting

Remuneration under civil law contracts can include:

• included in the costs of ordinary species activities;
• as part of investments in non-current assets;
• in the cost of acquired inventories;
• as part of non-operating or operating expenses;
• included in deferred expenses;
• included in emergency expenses.

Remuneration can be paid out of the reserve for future expenses.

The appropriate accounts (20, 44, 08, 10, 91, 97, 99, etc.) should be selected based on the type of work or services performed under the contract.

And also consider the attitude of the employee to your organization. So, if the work is performed by an employee of the organization, then the amount of remuneration is reflected in the credit of account 70, and if a person who is not a staff member, then in the credit of account 76.

If the work under the contract is performed for the needs of the main (auxiliary, servicing) production, then the following entry should be made:

DEBIT 20 (23, 29) CREDIT 70 (76)

- accrued remuneration under a civil law contract for work for the needs of the main (auxiliary, servicing) production.

If the work is related to the management of the organization (for example, restoration or maintenance accounting), then the posting is made in accounting:

DEBIT 26 CREDIT 70 (76)

– accrued remuneration under a civil law contract for work related to the management of the organization.

Remuneration for work related to the sale finished products or goods are reflected in the entry:

DEBIT 44 CREDIT 70 (76)

– accrued remuneration under a civil law contract for work related to the sale of finished products or goods.

Compensation under civil law contracts can be reflected as part of investments in non-current assets. This should be done if the work is related to the creation, purchase, modernization or reconstruction of fixed assets, as well as bringing them to a usable condition.

In addition, remuneration for work related to the creation or purchase of intangible assets should also be reflected in account 08:

DEBIT 08 CREDIT 70 (76)

– accrued remuneration under a civil law contract for work related to the creation of non-current assets.

If the work is related to the acquisition of inventory items, then the remuneration for them should be reflected as follows:

DEBIT 10 (41) CREDIT 70 (76)

– accrued remuneration under a civil law contract for work related to the acquisition of inventory items.

Remuneration under civil law contracts is included in non-operating expenses if the work performed is not related to the production and sale of the organization's products. For example, organization of recreation for employees, holding sporting events.

If the work is related to the receipt of operating income (for example, the repair of a leased fixed asset), then the amount of remuneration is taken into account as part of operating expenses.

In any case, this is reflected in the accounting entry:

DEBIT 91-2 CREDIT 70 (76)

– accrued remuneration under a civil law contract, which is included in non-operating or operating expenses.

Extraordinary expenses include remuneration for work to eliminate the consequences of emergency events (for example, natural disasters, fires, etc.):

DEBIT 99 CREDIT 70 (76)

– accrued remuneration under a civil law contract for work related to the elimination of the consequences of emergency circumstances.

If work is performed under a civil law contract, the costs of which are accounted for as deferred expenses, then the amount of remuneration under such an agreement should be reflected by posting:

DEBIT 97 CREDIT 70 (76)

– accrued remuneration under a civil law contract for work, the costs of which are accounted for as part of deferred expenses.

In addition, the organization can form a reserve in advance to pay for certain works (for example, for warranty repair). Then the amount of remuneration under the contract for the performance of these works can be reflected in the entry:

DEBIT 96 CREDIT 70 (76)

– accrued remuneration under a civil law contract at the expense of a previously created reserve.

Operation: The organization entered into a contract with an employee

IGREK LLC entered into a contract with a citizen Petrov, who is not an employee of this organization and is not an individual entrepreneur.

According to the contract agreement, Petrov must perform Maintenance small equipment "IGREK".

This work was performed qualitatively and within the time specified in the contract. The amount of remuneration is 20,000 rubles. The employee's expenses are confirmed by primary documents and amounted to 10,000 rubles.

The work contract does not provide for insurance of Petrov's employee against industrial accidents and occupational diseases.

IGREK pays UST at a rate of 35.6%.

Reflection of operations in accounting:

DEBIT 26 CREDIT 76

- 20,000 rubles - accrued remuneration under a work contract;

DEBIT 26 CREDIT 68 sub-account "Settlements on UST"

- 5,600 rubles (20,000 rubles x 28%) - UST is accrued in the part that is payable to the federal budget;

DEBIT 68 sub-account "Settlements for UST" CREDIT 69-2

- 2,800 rubles (20,000 rubles x 14%) - accrued contributions for compulsory pension insurance were offset against the payment of the UST to the federal budget;

DEBIT 26 CREDIT 69-3

- 720 rubles (20,000 rubles x 3.6%) - UST is accrued in the part that is payable to the MHIF;

DEBIT 76 CREDIT 68 sub-account "Calculations for personal income tax"

- 1,300 rubles ((20,000 rubles - 10,000 rubles) x 13%) - personal income tax withheld from the amount of remuneration to Petrov under the contract, minus his expenses;

DEBIT 76 CREDIT 50

- 18,700 rubles (20,000 rubles - 1,300 rubles) - remuneration was issued to Petrov under a work contract.

Personal Income Tax

Each organization is obliged to keep records of remuneration under civil law contracts in a special tax card in the form No. 1-NDFL.

For each person (except for entrepreneurs), to whom the organization paid remuneration under civil law contracts during the year, a certificate is drawn up in the form No. 2-NDFL.

Organizations are required to submit these certificates to the tax office no later than April 1 of the year following the year of payment of remuneration.

From remuneration under civil law contracts, the enterprise must withhold personal income tax at a rate of 13 percent.

Please note that the amount of remuneration is not reduced by standard tax deductions. An employee can receive these deductions from their tax office when submitting a declaration of income for the year.

However, the amount of remuneration can be reduced by professional tax deductions, this is the sum of all documented costs that the employee made under a civil law contract.

In order to receive such a deduction, the employee must write an application.

Unified social tax

If the remuneration that the organization paid under a civil law contract does not reduce its profit, then the UST does not need to be charged (paragraph 3 of Article 236 of the Tax Code of the Russian Federation). And vice versa, if the cost of paying remuneration is taken into account when calculating income tax, then it is necessary to accrue UST.

In accordance with paragraph 5 of Article 237 of the Tax Code of the Russian Federation, the amount of remuneration under copyright agreements subject to UST can be reduced by all documented expenses for their execution. If these expenses cannot be documented, then the amount of remuneration can only be reduced by a certain percentage.

Based on paragraph 3 of Article 238 of the Tax Code of the Russian Federation, remuneration under civil law contracts is not subject to UST in the part transferred to the FSS.

Contributions for accident insurance

Accident insurance premiums should be charged, if provided for in the civil law contract itself, at the rates applied by the organization for its full-time employees.

If the contract does not provide for such insurance, then it is not necessary to accrue contributions.

You can get acquainted with the accounting and taxation in the field of activities under work contracts in more detail in the development of Intercom-Audit CJSC "Contract".

Despite the fact that both types of contracts govern similar relations between the parties in the performance of work, there is a fundamental difference between them. An analysis of the rules of law that regulate legal relations under these types of contracts helps to identify the differences between a work contract and an employment contract.

The difference between an employment contract and a work contract

The everyday philistine attitude to the fact that I don’t care what kind of contract they conclude with me, the main thing is that the payment is on time, in practice gives rise to a lot of conflicts that could be avoided if each party understood the difference between an employment contract and a work contract and could evaluate possible consequences entering into any agreement.

The main differences between a work contract and an employment contract are that:

• legal sphere regulation of contracts is different. The employment contract is subject to the norms of labor legislation, including social guarantees, benefits, holidays, working conditions and the procedure for payment wages for labor. The relations of the parties under the work contract are regulated by civil law;
• equality of the parties exists only in civil law relations: the parties are equal among themselves, the subordination of one party to the other is unacceptable; concluding an employment contract, the employee assumes the obligation to obey the internal regulations and observe the working regime;
• work under an employment contract is the basis for making an entry about work in the work book and is included in the work experience of the employee. Work under a contract does not give the employee such rights;
• the contract is always fixed-term contract and is limited by the start and end dates of the work (). By general rule the employer is limited in the right to conclude a fixed-term employment contract, with the exception of special provisions provided for in Article 59 of the Labor Code of the Russian Federation. The employment contract is termless;
• within the framework of the employment contract, the employee assumes the obligation to perform the daily labor function. The purpose of the contract is to achieve by the parties a certain result of work, which must be transferred to the customer;
• remuneration within the framework of labor relations is guaranteed and is carried out regularly, at least twice a month. Remuneration does not depend on the achievement of the result of work; the obligation to pay it is tied to the due date of payment; application possible different systems wages, bonuses, deductions, etc. Under the contract, the price of work is fixed;
• under an employment contract, work is performed personally at the location of the employer (at the workplace), under a work contract - either personal performance of work, or the contract may provide for the possibility of involving third parties (subcontractors);
• the employee complies with the internal regulations and the regime of labor discipline. Under a civil contract, the customer is not interested in where and when the work is performed;
• under an employment contract, an employee is guaranteed the right to vacation and the preservation of the workplace for the period of being on vacation or temporary disability. In this case, the employer is obliged to pay the latter vacation pay and disability benefits.

Contract agreement: pros and cons for the employee

Benefits for the employee include:

• equality of the parties;
• free work regime, lack of subordination;
• fixed contract price.

Among the minuses, we highlight:

• non-inclusion of work in the insurance experience;
• lack of social guarantees;
• the right to pay for work under the contract arises under the condition that the customer accepts the result of the work.

In addition to contracts, in cases established by law, work contracts (civil law contracts) may be concluded with employees, which are more beneficial for the employer. The procedure for concluding such agreements is regulated by the relevant Decree of the President of the Republic of Belarus dated July 6, 2005 No. 314 with subsequent amendments and additions. p> The general in the contract and the work contract that they are made out only in writing. In both legal documents, citizens must ensure observance of labor protection rules and insurance against accidents at work during work. There are mandatory insurance contributions for state social insurance to the Fund social protection population, deduction income tax and sick pay. Training, instruction, advanced training, knowledge testing of citizens, personalized accounting and more are carried out.

There are also features. The main difference between a contract and a contract is various forms legal relations.

When concluding a contract, the employer and the employee have labor relations, the employee is subject to the norms provided for by labor legislation, including the established benefits, guarantees and compensations, he can be encouraged and subject to disciplinary liability, join a trade union operating at the employer, etc. d. In addition, according to Article 28 of the Labor Code of the Republic of Belarus, an employer has the right to conclude a contract with an employee subject to a preliminary test in order to verify his compliance with the assigned work. The term of the preliminary test shall not exceed three months. It is important that when calculating it, the period of temporary disability, as well as other periods when the employee was absent from work, are not taken into account.

During the performance of the contract labor law they do not apply to a citizen, and the parties have civil law relations, which are regulated by the norms of a work contract concluded in compliance with the requirements of the law. Preliminary testing cannot be a condition of the contract.

When concluding a work contract, the customer can check the ability of a citizen to perform work, but only in other ways than those used in labor relations. For example, he has the right to conduct an interview with a citizen, request information about his education, qualifications, work experience, get acquainted with work already completed, etc.

There are other differences between a work contract and a contract. The term for concluding a work contract is not limited by either minimum or maximum limits, but is determined by agreement of the parties. On the contrary, the contract is concluded for a period of at least one year, but not more than five years.

The subject of the contract is an agreement between the employer and the employee for the latter to perform work in a certain profession and position, which is available in the employer's staffing table and, most often, is vacant. And the subject of the contract is the performance of work, the provision of services, the creation of an object of intellectual property. In particular, the conclusion of a contract for a position available in the organization's staffing table is unacceptable.
Fulfillment of obligations under a work contract is not recorded in the work book. While work under the contract is mandatory recorded in the work book, i.e. the time of hiring an employee, his transfer to another position, dismissal, etc. is reflected.

The salary to the employee under the contract is paid for a specific calendar period of work, but at least once a month. And remuneration under a work contract is based on the results of performing certain work within the time frame established by the contract itself. From non-payment of remuneration, a citizen is protected by the possible application of sanctions to the organization in the form of a penalty in the amount of at least 0.15 percent of the unpaid amount for each day of delay.

An employee working under a contract is given an annual labor leave of at least 24 calendar days, and for deterioration of the legal situation in connection with work under a contract - an additional incentive leave of up to 5 calendar days. On the basis of attestation of workplaces, an employee may be granted leave for work with harmful, hazardous conditions labor and for the special nature of the work. The costs of the employer for the provision of these holidays are included in the cost of products (works, services). In addition, the employer, at his own expense, has the right to provide the employee with other additional holidays - for irregular working hours, for long work experience, as well as various incentive holidays provided for by local regulatory legal acts in force in the organization.

For the fulfillment of civil obligations, labor leave is not granted to a citizen, unless otherwise established by a work contract.

The contract worker must comply with the internal labor regulations, official duties, instructions, provisions of the collective agreement, agreements and other local regulatory legal acts in force in the organization.

On the contrary, a citizen working under a work contract is not obliged to comply with the indicated local regulatory legal acts, he is not subject to the established work and rest regime in the organization, the norms of the collective agreement and agreements do not apply to him.

It is not easy to terminate the contract, for this it is necessary to follow the procedure established by labor legislation. No special procedure is required to terminate the work contract. So, for example, the contract of agency is terminated due to the cancellation of the task by the principal or the refusal of the agent from it at any time.

Therefore, it should be remembered that by agreeing to work under a contract, citizens are deprived of all benefits, guarantees and compensations provided for by labor legislation, and relations with the organization are regulated only by the norms established by the contract itself, drawn up in accordance with the law.

The subject as an essential condition of the work contract - The consequences of the actual performance of work for recognizing the subject of the work contract as agreed - The legal meaning of the agreement of the parties on recognizing the work contract as not concluded - The basis for the emergence of contract relations in cases where there is no work contract or the court recognized it as not concluded, or in other cases - Application of the norms of a work contract to legal relations arising in the field of construction - Correlation of a work contract and an employment contract - Correlation of work contracts and supply (purchase and sale) contracts - Correlation of a work contract and a contract for the provision of services - Correlation of a work contract and an exchange agreement - Correlation of a contract contract and commission agreements - Types of activities that may be recognized as contract relations

Relations between a citizen and organizations can be formalized by various agreements. Labor legislation, however, insists that an employment contract must be concluded with an employee.

At the same time, the law does not contain clear criteria that allow to accurately distinguish such an agreement from a work contract close to it. And yet there is a difference, and a very significant one.

A contract and an employment contract are no exception. The definition of a contract is given in Art. 702 of the Civil Code, and the employment contract - in Art. 56 of the Labor Code of the Russian Federation.

According to the contract agreement, one of the parties performs the second work on behalf of the contractor and submits its result, receiving a reward for this.

That is, the duty of one party is to create a certain thing according to the assignment, and the second - to accept and pay for it.

Under an employment contract, one party undertakes to provide the other with certain work, create conditions for its performance and regularly pay for it. The second party must personally perform the work assigned and obey the rules of the employer.

Depending on the specifics of the subject of the contract, it is customary to distinguish its varieties such as:

• household (things for personal use);
• construction (residential buildings, other buildings and structures);
• for execution design work(the result will be the creation of documents).

The relationship between an employee and the organization where he works is regulated by the Labor Code.

This document establishes binding rules for all aspects of these relationships:

• conclusion of an agreement;
• time of work and rest;
• pay for work;
• guarantees, compensations;
• material and disciplinary responsibility, etc.

You can download the codes here:

Labor Code of the Russian Federation

Civil Code of the Russian Federation (part 2)

The difference between a contract and an employment contract

The law does not establish clear criteria to accurately distinguish one contract from another. But the ILO Recommendations and the accumulated arbitrage practice still allow them to be distinguished.

The first, perhaps the most important, difference lies in the attitude towards the end result.

Without its indication, the contract is not considered concluded - this is an essential condition. In the employment contract, only the type of work assigned (function, position) is indicated.

The second difference will be the power-submission relationship of the parties.

The contractor, despite the fact that he performs work on order, is not a subordinate in relation to the customer. The employee is obliged to obey the orders of the employer and internal rules.

The third trait will concern who exactly will do the work.

In labor relations, this is always the employee himself personally, and for the contractor, an assignment to someone else is allowed. In addition, an employee is always an individual, but an organization can also be an executor.

Peculiarities

How is it arranged?

The contract may be carried out on the basis of an oral or written agreement. Employment relationships are always formalized in a written contract.

Documents required for conclusion

To conclude a contract, individuals will only need passports, and legal entities indicate all the details and certify the signature of the head with a seal.

The employer will require the employee to submit:

• passport;
• SNILS;
• work book;
• education documents.

Entries in the work book

Employment, the basis for which is an employment contract, must be recorded in the work book.

Contracting relationships are not reflected in it.

Payroll and taxation

An employee's salary is paid regularly, regardless of the actual performance of the work.

Works under the contract are paid for the final result. Or for each stage of its achievement, if it is noted in the contract.

Both wages and remuneration for the performance of contract work are subject to personal income tax. The rate is the same - 13%.

For the employee, this tax is calculated and paid by the employer. But the contractor fulfills its tax obligations on its own.

Sample contracts can be downloaded here:

Example of a contract

Indefinite employment contract without probationary period

Indefinite employment contract with a probationary period

Standard form of a fixed-term employment contract

FAQ

Is it possible to retrain in an employment contract?

Yes, there is such a possibility.

Moreover, the Labor Code (Article 19.1) allows you to do this in several ways:

• at the request of the citizen-executor;
• by order of the Labor Inspectorate;
• By the tribunal's decision.

You can re-qualify not only current relationships, but also those that have already ended. But for this you will have to go exclusively to the court.

All doubts arising from the court will be interpreted in favor of the employee, that is, the employment relationship.

For example, such a sample as an employment contract with an individual will still be recognized as an employment contract, and not a contract.

What is better for an employee - a fixed-term employment contract or a work contract?

It is difficult to find a definite answer to this question.

On the one hand, an employment contract, even a fixed-term one, gives the employee certain advantages:

• regular payment regardless of the results;
• compulsory insurance in case of pregnancy, disability, accidents, etc.;
• the right to receive guarantees and compensations;
• dismissal only for legal reasons, etc.

On the other hand, a row gives more freedom.

The contractor may:

• choose a convenient time, method and pace of work;
• attract other performers;
• refuse the order (not forgetting to compensate for such a refusal to the other party);
• do not follow the rules adopted by this customer, etc.

Choosing for himself this or that form of relationship, the employee must be fully aware of the consequences of his decision.

This requires knowledge of the differences between an employment contract and others.

Does the labor inspectorate deal with such documents in the event of disputes?

Until recently, the resolution of disputes on the re-qualification of contracts was carried out exclusively in court. However, if the relationship has already been terminated, but it became necessary to recognize them as labor, then a visit to the court cannot be avoided.

However, after changes were made to the Labor Code at the end of 2103, other possibilities appeared.

In particular, now the state labor inspector has the right to issue an order to requalify the contract. And the customer (employer) is obliged to do this or appeal the order in court.

The contractor may also apply to the court if the order has not been complied with.

Is it possible to conclude such contracts at the same time?

The conclusion of an employment contract does not cancel the possibility to subsequently conclude civil law contracts with the same organization (for example, to perform work that goes beyond the scope of the job description and is of a one-time, temporary nature).

Payment under such contracts is carried out separately.

Is it possible to conclude without a work book?

It is possible to conclude an employment contract without a work book.

For example, if this is the first place of work for a citizen, this is also suitable for part-time workers.

In the first case, the book is issued by the employer after the conclusion of the contract. In the second, the employee may wish to make a record of part-time work and submit a book.

For essential workers employment history is a required document.

When applying for a job, some employers offer to enter into employment contract, and contract. Is this offer legal? And will the execution of a work contract be official employment? We answer these and other questions in our article.

What is the difference between an employment contract and a work contract?

Employment contract

This is an agreement between an employee and an employer, which is concluded on the basis of the Labor Code.

Work agreement- also called an employment contract, a civil contract with an individual. This is a civil law contract concluded between two parties, one of which undertakes to provide work and pay for it, and the other party undertakes to perform it. A work contract is a contract that is drawn up in accordance with the Civil Code.

An employment contract is different from a contract exactly as much as butter different from olive. All butter, but completely different, but called butter - one is smeared on bread, the second is used for frying.

Similarly, here: on the basis of an employment contract, labor activity employee, and on the basis of a work contract, civil law activities begin. In fact, under a civil contract, the employee acts as a separate person (albeit an individual).

Why conclude a contract of work, and not an employment contract?

The conclusion of an employment contract entails certain consequences: the employer is obliged to pay taxes for the employee (that is, to act

tax agent

), must provide vacations, in case of being on sick leave, sick leave is paid, it is also impossible to dismiss a person without a reason.

When concluding a work contract, the customer (the one who pays for the work) is not obliged to provide any additional guarantees to the contractor (the one who undertakes to perform the contract). If, for example, the contractor falls ill, then this does not concern the customer and the work must be completed on time. None

holiday pay

also not paid.

Thus, it is unprofitable for a person who wants to find a job to enter into work agreement.

It is possible to conclude a work contract in the case when a person is already working on the basis of an employment contract. This option is beneficial when you need to do some one-time work, while the employer does not want to arrange part-time work.

It must be remembered that when concluding work contracts it must be remembered that an individual is himself responsible for paying taxes, contributions and other payments. In this case, the contractor (employee) will have to deal with all the paperwork himself.

Is it worth signing a contract?

If a person is looking for a permanent job, then he unprofitable to conclude work agreement , because the employee does not receive any protection provided for by the Labor Code. If a person is looking for a part-time job or is ready to participate in a one-time project, then it is possible to conclude a contract, this will be an official job, the reporting for which to the state (taxes) will be borne by the employee himself.

For employees, an employment contract is more reliable, which protects the interests of the employee. For employers, a contract is beneficial.

What is an employment contract?

There is no such term as an employment contract or an employment contract in any Labor Code RF, nor in the Civil Code. If the employer offers to conclude such an agreement, then most likely it is proposed to conclude not an employment contract, but work agreement, which is clearly unprofitable for the employee.

Labor disputes related to the conclusion of work contracts with individuals, instead of employment contracts, are not uncommon in our time. The labor inspectorate and the tax service see signs of an employment contract in such legal relations.

What are the penalties for non-employment? What is the difference between a contract and an employment contract? Where is the line when one contract is transformed into another?

The Supreme Court of the Russian Federation in its Ruling of the Supreme Court of the Russian Federation dated September 25, 2017 N 66-KG17-10, finally put all the dots over the “and”, and called features. Knowing these signs will help the employer to protect themselves from attacks by the fiscal authorities, help to decide what kind of contract with an individual should be concluded in specific situation, will provide a legal position in court.

Contract or employment contract?

So what did the Supreme Court say?

Firstly, the purpose of the contract is to obtain a specific result, and not to perform the work as such. Labor contract should be focused on achieving certain goals. If an individual works, performs a certain function and no visible goals are pursued in the work contract, then this work has the sign of an employment contract.

Secondly, the contractor remains an independent economic entity and acts at its own risk. The result is received - the work is accepted, there is no result, poorly done - the work is not accepted.

Third, the contractor is not subject to the labor regime, He works either according to the agreed schedule, if it is, say, construction, or at any time convenient for him. He can work both at night and on weekends, the main thing is that the result of the work is achieved. there is an employment relationship.

Reasons why employers love contracting so much.

There are many reasons, and this is not only a reduction in the tax burden on insurance premiums. The civil law contract does not burden the employer with a number of obligations:

1. No need to provide work or pay for downtime;
2. No need to pay vacation and pay compensation upon dismissal;
3. You don't have to pay wages on time.
4. No need to pay sick leave;
5. It is not necessary to terminate the contract only on the grounds provided for by the Labor Code;
6. It is not necessary to pay insurance premiums for compulsory insurance against industrial accidents and occupational diseases (unless the obligation to charge them is expressly stipulated by the terms of the contract),
7. You do not have to pay insurance premiums in terms of the FSS.

How else can you save on a contract?

1. If you conclude a contract with an individual entrepreneur, then you do not have to pay insurance premiums. Entrepreneurs are obliged to independently list them for themselves.
2. When concluding a work contract with foreigners or stateless persons temporarily residing in the Russian Federation, insurance premiums are not charged at all (subclause 15, clause 1, article 422 of the Tax Code of the Russian Federation).
3. When concluding contract agreements with students studying full-time at Russian universities, as part of student groups, the company is exempt from paying insurance premiums to the Pension Fund of the Russian Federation (clause 3, article 422 of the Tax Code of the Russian Federation). Before concluding a contract agreement, it is necessary to carefully analyze its content for controversial points that allow it to be interpreted as labor.

What to look for when concluding a contract?

Things to consider when drafting a contract:

1. The text should clearly indicate the period during which the work must be completed;
2. The amount of remuneration should be reflected for the entire scope of work, it should not be divided by time periods;
3. The contract should not contain references to job descriptions or on the mode of operation of the enterprise;
4. It is necessary to reflect the list of works (services) to be performed (rendered) by an individual;
5. It is necessary to reflect the order of acceptance, the fact of completion of the full scope of work (services) must be confirmed by the act of acceptance of the work (services) performed, signed by both parties;
6. The work must be one-time;
7. It is necessary to reflect the requirements for the quality of work;
8. It is necessary to reflect the responsibility of the parties for violation of the terms of the contract;
9. If an organization has entered into a civil law contract with an employee who is on the staff of this organization, then the employee must perform the list of works under the concluded contract during off-hours, otherwise this work will be considered part-time work.

Consequences of replacing labor relations with civil law ones

There is no doubt that a civil law contract is much more beneficial for the employer than an employment contract. But here lies the danger in the form of recognition by the court of the contract concluded with an individual not civil, but labor. The court can do this both at the request of the labor inspectorate, and at the request of the individual himself. In addition to administrative liability measures, in the event that labor relations are replaced by civil law ones, the organization will have to incur in favor of the recognized employee (part 4 of article 19.1 of the Labor Code of the Russian Federation) the costs of paying for all benefits, guarantees and compensations provided for by labor legislation.

In accordance with Part 3 Art. 5.27 of the Code of Administrative Offenses of the Russian Federation substitution of labor relations by civil law is punishable by a fine:

1. for officials in the amount of 10,000 to 20,000 rubles;
2. for individual entrepreneurs from 5000 to 10000 rubles;
3. for an organization - from 50,000 to 100,000 rubles;

In addition, there is liability for repeated violation;

1. disqualification official for a period of 1 to 3 years;
2. for individual entrepreneurs from 30,000 to 40,000 rubles;
3. the organization is fined from 100,000 to 200,000 rubles.

According to the current legislation, the organization has the right to determine which contract it needs to use: labor or civil law. Approach this choice very responsibly, it is not worth taking risks if labor relations are really present in your particular situation. If, however, you conclude a contract, then try to take into account all its nuances not only in the contract itself, but actually try to comply with them.