Often in enterprises, after the dismissal of an employee, his position remains vacant. Some employers are in no hurry to adjust the staffing table and exclude from it vacancies. Instead, they rely on current employees fulfillment of obligations for vacancies. Meanwhile, such an action is not entirely legal.
Features of definitions
A vacant position is a vacant position provided for in staffing, for which the employee is not listed. If an employee is absent due to illness, in connection with a business trip, then his workplace kept behind him. Accordingly, this is no longer a vacant position. Temporary performance of duties on it is regulated by Article 74 of the Labor Code.
Replacement of an absent employee
According to the law, the appointment of an existing employee to the position of an employee who is on a business trip, on vacation, on treatment, etc., is a transfer. Replacement of an absent employee is due to production needs. The legislation allows transfer to another job without the consent of the employee.
Since this is not a vacant position, the term of temporary performance of duties in it is strictly limited. It cannot exceed a month within a year (calendar).
Difficulties in practice
As in the case of a vacant position, the performance of duties at the place labor activity temporarily absent employee is possible with the appropriate qualifications. If the replacement of an employee assumes a lower level of it, the written consent of the transferred employee is required.
The implementation of this rule may cause some problems in practice. The fact is that the Labor Code does not fix the criteria for comparing the qualifications of different specialties, positions and professions. This means that the employer must develop such an assessment system himself. Of course, all criteria must be officially fixed and the staff familiar with them.
The employer must act very carefully, without violating the interests and All decisions must be made solely within the framework of the law. Otherwise, a labor dispute may arise.
Combination
An employee can simultaneously perform duties in his main position and replace an absent employee. In such cases, we talk about combination. At the same time, it should be taken into account that the employer is not entitled to transfer the employee to another job without his consent and release from the main activity. If an employee wishes to combine work duties, he must give written permission to do so.
Surcharges
An employee who has given consent to the combination, in accordance with Article 151 of the Labor Code, has the right to additional payments. The amount of the additional payment is established by agreement of the parties. According to current regulations, additional payments may be received by a full-time deputy employee who is temporarily absent from work.
Sun clarifications
Previously, a provision was applied in accordance with which the amount of the surcharge was determined as the difference between official salaries employees, if the replacement employee is not a full-time assistant (deputy) of the absent.
However, by the Determination of the Board of the Armed Forces, this rule was recognized as violating labor rights employees. As a result, full-time assistants (deputies), Ch. engineers, etc.
Nuances
If the replacement of the position of an absent employee is carried out by an employee with release from his main activity, he can count on receiving a salary in an amount not less than average earnings which he received at his workplace.
General rules for determining the average salary are established by the Government in Decree No. 213 of 2003.
Fulfilling the duties of a vacant position
It has already been said above that the appointment of an employee to the place of an absent employee is a transfer. This situation is possible if the employee is temporarily absent, i.e. he is not fired from the enterprise. The same position is held by the courts.
In particular, one can pay attention to the Decree of the Plenum of the Supreme Court No. 16 of 1992. In paragraph 12 of this document, an interpretation of the provisions of Article 26 of the Labor Code of the RSFSR is given. Despite the fact that this Code has not been in force for a long time, many of its provisions can be applied today. Moreover, the wording of articles 26 of the Labor Code and 74 of the Labor Code in the part regulating the transfer of an employee to the place of a temporarily absent employee at the initiative of the employer are the same. Accordingly, there is no doubt that the judiciary, when considering labor disputes will take into account the explanations given in the said Decree.
Paragraph 12 of the document stipulates that the performance of duties in a vacant position for a certain period is possible with the written consent of the employee. It follows from this that the Supreme Court, in fact, introduced the new kind transfers of employees to another job. Meanwhile, according to labor legislation, the performance of duties in a vacant position is not allowed. Consequently, the provision present in the Resolution of the Plenum cannot be applied.
The above means that the order to fulfill the duties of a vacant position can be invalidated. A completely different wording should be used in the local document. Many leaders, taking advantage of the ignorance of citizens, their legal illiteracy, issue clearly unlawful orders. It should be remembered that any decision of the employer can be challenged.
Timing questions
Many ignorant citizens are interested in what term for the performance of duties in a vacant position can be established by order of the head? The TC does not say anything about this. There are no clarifications in the labor legislation because this form of transfer of an employee is not provided for at all. Therefore, it is not entirely correct to talk about any (including continuous) term for the performance of duties in a vacant position. In such cases, it should be considered that the employee is transferred to the place permanently. This, in turn, requires the consent of the employee. Let us turn to the explanations of the Sun.
Decree No. 16 states that if the employer transferred the employee without his consent, and he, in turn, began to work voluntarily, then this action can be recognized as legal. Therefore, the employee will be considered in office from the 1st day of the transfer.
The establishment of a specific term for the performance of duties for a vacant position has no legal significance for the regulation of labor relations. Such a temporary appointment of an employee must be considered a permanent transfer to another place (with the consent of him) in accordance with Article 72 of the Labor Code.
conclusions
The fact of voluntary fulfillment of duties in a free position transforms the interaction between the employer and the employee from the first day of appointment. Consequently, the position itself ceases to be vacant.
Decor
When an employee is appointed to a vacant position, the standard procedure for hiring or transferring is applied. In the first case, the candidate provides all Required documents writes a statement. The employer and the citizen enter into an agreement.
Before signing, the candidate must carefully read the contents of the document. The fact is that some employers use incorrect wording. Signing the contract means voluntary agreement with the terms of employment.
Often, employers take advantage of the legal illiteracy of employees and appoint them to act in vacant positions. And employees, in turn, voluntarily agree to this. In practice, it turns out that employees do both their own and other people's work. Remuneration, in turn, as a rule, in such cases does not correspond to the volume of labor activity. It is rather difficult to challenge such situations, since employers take written consent from employees. Quite often, the only way out is to quit.
Nevertheless, in the event of such conflicting situations, it is advisable to contact the labor inspectorate.
In fact, the employee may refuse to perform additional duties. To do this, he needs to directly contact the employer, write a statement.
It is worth saying that many employees consciously agree with the proposal of the employer. Usually this is due to the promises of the employer to pay high remuneration. But in reality, the employee does not always receive the expected amount. In such situations, problems begin. On the one hand, the actions of the employer are not legal, on the other hand, the employee himself agreed to the conditions.
Conclusion
In order to avoid problems with any employees, it is necessary to carefully read the documents issued by the employer. If you are not sure about the legality of certain conditions, it is advisable to consult with an independent lawyer. Often ignorance of the law leads to very negative consequences.
The employer's orders should only use the wording that is provided for by labor standards. In the Labor Code, the appointment of an employee in a free position is prohibited. If it nevertheless took place, then it should be recognized as a transfer to a permanent job. Accordingly, the position will no longer be vacant, and it is impossible to accept another person for it.
The appointment of an employee as acting in a particular position is allowed if the corresponding employee is absent for any reason, but remains on the staff of the company.
In accordance with Article 65 of the Labor Code of the Russian Federation, when concluding employment contract a person applying for a job presents to the employer, in particular, a document on education and (or) qualification or special knowledge - when applying for a job that requires special knowledge or special training.
At the same time, any federal laws or regulatory legal acts establishing the need for the director and deputy director of a research institution to have higher education, not available.
The general document that defines the requirements for education and experience of heads of organizations is the Qualification Directory for the Positions of Managers, Specialists and Other Employees, 4th edition, supplemented, approved by the Decree of the Ministry of Labor of the Russian Federation of August 21, 1998 N 37 (hereinafter referred to as the Directory).
According to part five of article 144 of the Labor Code of the Russian Federation, state and municipal institutions are required to take into account the provisions of the unified tariff-qualification guide for work and professions of workers, the unified qualification guide for the positions of managers, specialists and employees. The need to use these qualification reference books is also indicated in paragraphs. “e” p. 5 of the Uniform Recommendations for the Establishment at the Federal, Regional and local levels remuneration systems for employees of state and municipal institutions for 2014. This was approved by the decision of the Russian tripartite commission for the regulation of social and labor relations of December 25, 2013 (Minutes No. 11).
The section of the Directory “Qualification characteristics of positions of employees employed in research institutions, design, technological, design and survey organizations” establishes the following requirements for the qualification of a specialist - director of a research institution: higher professional education and work experience in the specialty for at least 5 years, in the presence of a scientific degree of a doctor (candidate) of science - at least 3 years of scientific and pedagogical work experience.
Clause 6 of the Procedure for applying the Handbook, approved by Decree of the Ministry of Labor of the Russian Federation of February 9, 2004 N 9 (hereinafter referred to as the Procedure), states that qualification characteristics positions of specialist - deputy heads were not developed, since their official duties, the requirements for knowledge and qualifications are determined on the basis of the requirements contained in the characteristics of the respective positions of managers.
Accordingly, a candidate for the position of deputy director of a research institution is presented with similar qualification requirements, as to a person applying for the position of director of a research institution.
However, according to paragraph 10 General Provisions of the Directory of persons who do not have special training or work experience established by the requirements for qualifications, but who have sufficient practical experience and perform the duties assigned to them qualitatively and in full, on the recommendation attestation commission as an exception, they can be appointed to the relevant positions in the same way as persons with special training and work experience. A similar rule is contained in paragraph 8 of the Order. In other words, in exceptional cases, the Directory allows for the possibility of occupying the positions provided for by it by persons who do not have an education of the appropriate level.
Conclusion:
The lack of higher education of a specialist is not an insurmountable obstacle to occupying the position of director of a research institution and his deputy. Accordingly, if there is sufficient practical experience, on the recommendation of the attestation commission, the applicant can be appointed to the positions in question even without higher professional education.
Appointment to the position of leader should be a thoughtful step, even for reservists. If you are forced to urgently look for a top manager, do not forget about assessment and training.
From the article you will learn:
It is advisable to nominate personnel from the reserve of the enterprise for the position of the head of the company. This position is usually filled by department heads.
Download related documents:
Find out who to appoint to a top position using the 7 questions method
Determining which of the heads of the department of the company is ready to be appointed to the position of head of more than high level use the 7 questions method. It is advisable to hold informal conversations for this, for example at dinner. During such an interview, ask seven questions to reveal the managerial potential and human qualities of a candidate for a top position.
Question 1.
A person lives by past merits or is aimed at active actions in the future. A simple question will help to identify this: “I have read your personal file and the information that is given there. But could you briefly tell us what you did after you left school? 
It is not so important what exactly the person will say, it is much more important how. If he gets stuck talking about the past and barely gets to the present, let alone the future, that's not a good sign. Most likely, a person is focused on past merits.
The question “What behaviors or qualities of other people annoy you?” will help to reveal the "shadow" of a person. Reveal its hidden qualities. For example, if your interlocutor says that he is annoyed by the dishonesty of others, then most likely he himself can be insincere and, in certain situations, can deceive.
Question 2.
Is the head of the department able to set goals for himself and achieve them. To find out, ask: “How would you plan your work for a month if you got a new position?” Suppose, in answering this question, an employee repeats the phrase: “I will wait for specific instructions from higher management.” This suggests that the manager is inclined to wait for instructions from above. It is possible that he does not want to take responsibility. And this is not the best quality for a leader, and the decision to appoint him to the post is likely to be premature.
Question 3.
Is the manager ready to motivate and develop employees in order to achieve high results. Ask a case question: “With the level of training and qualification is always a problem. On the one hand, there are many who are looking for work. On the other hand, there are few among them who have the right experience and knowledge. Therefore, you have to give decent business results with people who have insufficient qualifications. How do you look at this problem? Listen to how and what the leader says, and evaluate:
- whether this problem worries the manager, and how deeply;
- whether he is determined to independently train subordinates, motivate them, that is, to receive above-average returns from people of an average level.
If not, then it is unlikely that the company will benefit from the appointment of such a manager to a new position.
Question 4.
Does the employee know how to assess the importance of tasks and prioritize. Ask him: "What tasks in your today's work do you consider the main ones?" By the answer, you will again find out how a person plans his work, whether he thinks about tasks, whether he evaluates their importance. In addition, understand whether he is able to prioritize.
Question 5.
Whether the manager is supported at home in what is related to his work. It also depends on how effectively a person will work. For example, if an employee often has to go on business trips, and his wife is unhappy with this, then soon he will start thinking about changing jobs, it will become worse to fulfill his duties.
Question 6.
How fulfilling life is the head of the department. You can understand this by asking this question: “Do you find time to do something for the soul, something that is not related to work?” If a person answers: “No, all my interests are tied to work,” most likely he has a limited life. It is difficult to expect interesting things from such a person. non-standard ideas. It’s good if the manager talks about some of his hobbies, explains what attracts him to it.
Question 7.
Does the employee have personal maturity, is he able to admit mistakes. Ask: “Have you made mistakes in life and work? As a rule, all people make mistakes. If the manager answers, “No, I didn’t make any serious mistakes” or “I can’t remember any cases,” most likely he is cheating. And not only you, but yourself. If your interlocutor answers, for example, like this: “Of course, I also had mistakes. But mistakes are the only effective way gain experience”, then we can say that you have a mature person who is able to admit his mistakes.
For more information about the assessment of a candidate and the procedure for appointment to the position of chief, read .
How to quickly assess the level of preparation of a reservist and finish training him for appointment to a managerial position
If, due to an operational need, it is urgently necessary to appoint an employee who has not completed training as part of the reserve training to the position of the head, you should not resist the early promotion of the reservist. If during the training process a specialist showed a steady increase in performance indicators, you can offer a compromise that would allow both appointing a reservist to a position, and finishing training him, and evaluating him “at the entrance” - before he begins to work fully.
- Appoint a reservist as acting head of sales for, say, three months. This will become a conditional probationary period for him (when transferring from one position to another in the company probation cannot be installed). At this time, the employee will begin to enter the position and complete the training. In addition, you will distribute the remaining month of training to him for three.
- Make a work and development plan for the employee after appointment, for example, for the last three months of 2017. Enter there everything that needs to be done according to the position and according to the training program in the reserve. For all tasks, determine the deadlines, indicate the criteria by which you will evaluate the performance. Attach a mentor to the reservist.
- When three months have elapsed, . Establish how well he coped with professional tasks, whether he adapted to a new position, whether he developed managerial competencies. In addition, determine whether he has mastered the remaining material from the personnel reserve program with high quality.
All this should be assessed by the commission. Include in it the general and commercial directors, the immediate supervisor of the reservist, the mentor and yourself. The commission will decide whether the employee is able to work in a new position. In this case, prepare a long list of candidates from the personnel and external reserves who can be considered as applicants for the position.
Present this solution to the head of the company and the commercial director. Along the way, explain why it is necessary to evaluate an employee after he completes the talent pool program and has worked for three months as an acting department head. This will also help determine the appointment period for leadership position.
Often disagreements between the HR director and company managers arise because managers simply do not understand the technology and the meaning of evaluation, and also underestimate the importance of training reservists. The management of the company will not be against your option, because you will let the employee try himself in a new position before he is appointed to it. Read more about the nuances of appointing a reservist to a occupied position in .
How to correctly determine the career of an employee: a manager or an expert? How not to make a mistake with the appointment
Step 2
Based on the profiles, develop competency models. The skills and knowledge of the expert and manager need to be spelled out in more detail. In other words, indicate what each competence consists of and how much the employee should be developed. Then you get a competency model. It will come in handy in the future for evaluating employees and making conclusions about what kind of career to build.
Step 4
Conduct an assessment: mini-assessment and interviews on the competency model. A mini-assessment is best done in the format business game. Offer the assessees a to-do list for the day and ask them to prioritize. First, employees do this individually, and then in groups.
When an employee performs an individual exercise, evaluate whether he knows how to plan his work, set priorities, set tasks for others. And the group task will show whether the employee is able to interact with colleagues in the group, defend his point of view, and reach agreements.
Competency model interviews are conducted by a manager and an HR specialist. During the conversation, find out what the person is aiming for - the process or the result, what goals he sets for himself, what he does to achieve them. Give feedback to each who passes the assessment, indicate what it is worth developing. Develop a rating scale for committee members.
Step 5
Adapt the new leader - draw up a program, development plan, memo. Otherwise, a promising specialist risks not living up to expectations. Based on the results of the assessment of the employee, develop a plan for its development. More about important points building a reservist career and appointment to a managerial position, read in .
In conclusion, it must be emphasized that one should not think that one's specialist appointed to a higher position does not need to be supported in a new field. Make an adaptation program for the new manager, assign a mentor to him, as well as an HR specialist who will provide support for the employee for the first time in a new position.
Purpose CEO do it in the following order.
Prior to concluding an employment contract with the general director, a decision must be made by the owner of the organization on his election (appointment) to the position.
This decision can be made by:
- general meeting of participants (shareholders) of the company, drawing it up with a protocol (for example, in an LLC - protocol general meeting members of the society);
- the board of directors (supervisory board) of the company (if the resolution of this issue is referred by the charter to its competence), by issuing it with a decision.
This is provided for by Article 63 and paragraph 3 of Article 69 of the Law of December 26, 1995 No. 208-FZ, Article 37 and paragraph 1 of Article 40 of the Law of February 8, 1998 No. 14-FZ.
If there is only one owner in the organization, then the general director is appointed on the basis of solutions sole member(shareholder) (clause 2 of article 7 and clause 1 of article 40 of the Law of February 8, 1998 No. 14-FZ, clause 2 of article 2 and article 69 of the Law of December 26, 1995 No. 208-FZ ).
Before concluding an agreement with the General Director, check whether there are any violations in the procedure for making a decision on his election (appointment). The decision must not only be made in compliance with all legal requirements, but also correctly executed (Article 40 of the Law of February 8, 1998 No. 14-FZ, Article 69 of the Law of December 26, 1995 No. 208-FZ). To check the correctness of the decision, refer to the charter of the organization. First of all, it is necessary to check which body is competent to form a sole executive body, whether the procedure for convening a meeting or meeting has been followed, whether the quorum necessary for making a decision has been met, who is instructed on behalf of the organization to sign an employment contract with the elected general director.
The CEO may be individual entrepreneur. The legislation does not prohibit this (Article 40 of the Law of February 8, 1998 No. 14-FZ, Article 69 of the Law of December 26, 1995 No. 208-FZ).
Attention: if a person who is not from among the employees of the organization is applying for the position of general director, make sure that he is not included in the register of disqualified persons (Article 32.11 of the Code of Administrative Offenses of the Russian Federation).
To do this, you need to contact the tax office with request(on paper or in electronic format) (clause 4 of the Procedure approved by order of the Federal Tax Service of Russia dated December 31, 2014 No. ND-7-14 / [email protected]). Request forms on behalf of an individual and from the organization are given in the Administrative Regulations for the provision of information from the register of disqualified persons, which was approved by order of the Ministry of Finance of Russia dated December 30, 2014 No. 177n.
In electronic form, a request can be submitted through the official website of the Federal Tax Service of Russia or a single portal of state and municipal services. A request on paper can be submitted to any tax office (by mail or through a representative of the organization).
The information contained in the register is open and is provided in the form of an extract in the form approved by order of the Federal Tax Service of Russia dated December 31, 2014 No. ND-7-14 / [email protected] If there is no information about disqualification in the register, a certificate of absence of the requested information will be issued.
For the provision of information you will need to pay 100 rubles. (clause 1 of the Decree of the Government of the Russian Federation of July 3, 2014 No. 615).
Employees who have been disqualified are prohibited from holding senior positions in the executive body of the organization for a period of six months to three years (part 2 of article 3.11 of the Code of Administrative Offenses of the Russian Federation). If a disqualified employee is in a leadership position, working as the head of an organization will mean failure to comply with an administrative order, which may entail criminal liability for him (Article 315 of the Criminal Code of the Russian Federation). An employment contract concluded with such an employee must be terminated (part 1 of article 84 of the Labor Code of the Russian Federation).
Situation: what order to issue the appointment of the general director of a JSC or LLC?
The law does not establish this. To avoid any disputes in the future, it makes sense to draw up two documents at once:
- an order to take office;
- The order of acceptance to work.
The order on taking office is issued by the director on his own behalf. The basis for the order is the decision of the participants (shareholders) to whom the director is appointed. The form of the order is not approved, so it may be free.
Such an order reflects that the procedure for electing a person to this position has been followed: the director was elected by the participants at the meeting, the decision of the participants was formalized in the minutes. This order, together with the decision on the election, will need to be submitted to the bank where the company's current account is opened, and to other persons when it will be necessary to confirm the powers of the director.
Job Application (by form No. T-1 or in a self-developed form) must be issued in order to comply with the formal requirements of accounting legislation. Unlike the order on taking office, it does not reflect the election procedure, but determines the mode and nature of the director's work, the amount of the official salary.
The procedure for formalizing relations with the general director, who is the sole founder (participant, shareholder), has its own .
Labor contract
Situation: Is it possible to conclude an employment contract with the General Director for a period exceeding five years?
The answer to this question depends on what contract is concluded with the CEO.
The organization has the right to conclude with the General Director both a fixed-term and an open-ended employment contract. This is explained by labor law provides for the right, but not the obligation, to conclude a fixed-term employment contract with the general director. This is stated in part 2 of article 59 of the Labor Code of the Russian Federation.
An exception is provided only for cases where otherwise is established in federal legislation (part 2 of article 58 of the Labor Code of the Russian Federation). For example, this applies to the president of a state or municipal educational organization higher education, an employment contract with which can only be concluded for a period of not more than five years (part 14 of article 51 of the Law of December 29, 2012 No. 273-FZ). In other cases, the organization has the right to conclude an open-ended employment contract with the general director.
If the organization concludes a fixed-term employment contract with the general director, then its term cannot exceed five years. At the same time, the specific period of work within the five-year limitation is determined founding documents organization or by agreement of the parties. This procedure follows from the provisions of Part 1 of Article 275 and Article 58 of the Labor Code of the Russian Federation.
This procedure meets the requirements of the laws on joint-stock companies and LLCs (clause 1, article 40 of the Law of February 8, 1998 No. 14-FZ, article 69 of the Law of December 26, 1995 No. 208-FZ) and is confirmed by the decision of the Constitutional Court of the Russian Federation dated March 15, 2005 No. 3-P.
Learn more about how to extend your contract with the CEO if necessary fixed-term contract, cm. How to conclude a fixed-term employment contract .
Situation: Who should sign the employment contract with the CEO on behalf of the organization?
On behalf of joint-stock company the employment contract with the general director must be signed by the chairman of the board of directors (or the supervisory board). It can also be a person who is authorized by this governing body. This is stated in paragraph 3 of Article 69 of the Law of December 26, 1995 No. 208-FZ.
In an LLC, an employment contract on behalf of the organization must be signed by one of the following persons:
- the chairman of the general meeting of participants or a member of the company who is authorized by the decision of the general meeting;
- the chairman of the board of directors (supervisory board) of the company or a person authorized by the decision of the board of directors (supervisory board) if the resolution of such issues is referred by the charter to the competence of these structures of the company.
This procedure is provided for in paragraph 1 of Article 40 of the Law of February 8, 1998 No. 14-FZ.
For other organizations, special rules are not provided, so the contract on behalf of the organization has the right to sign a person authorized to decide on the appointment of the general director to the position. It can also be the person who heads the relevant governing body.
Situation: whether it is necessary to conclude an employment contract with the general director, who is the sole founder (participant, shareholder) of the organization?
No, it doesn `t need.
If the head of the organization is also its sole founder (participant, shareholder), an employment contract is not concluded with him (letter of the Ministry of Health and Social Development of Russia dated August 18, 2009 No. 22-2-3199). The arguments are as follows: the specifics of labor regulation of the heads of the organization are established in Chapter 43 of the Labor Code of the Russian Federation. At the same time, the provisions of this chapter do not apply to managers who are the sole founders (participants, shareholders) of organizations. This clearly follows from the provisions of Article 273 of the Labor Code of the Russian Federation. This norm is based on the impossibility of concluding an employment contract with oneself, since the organization has no other founders (participants, shareholders).
In this situation, the director must decision assume the functions of the sole executive body. Management activities in this case, the director will carry out without concluding any contract, including labor. Entry into office is formalized by order.
A similar conclusion is contained in the letters of Rostrud dated March 6, 2013 No. 177-6-1 and December 28, 2006 No. 2262-6-1.
Since an employment contract with the general director - the sole founder (participant, shareholder) is not concluded, the organization is not obliged to accrue and pay his salary. This follows from paragraph 1 of Article 135, paragraph 2 of Article 145 of the Labor Code of the Russian Federation.
However, the organization has the right to do so. After all, the absence of an employment contract with the general director - the sole founder (participant, shareholder) does not cast doubt on the existence of labor relations between him and the organization. According to official clarifications, the relationship that arises as a result of election to a position, appointment to a position or confirmation in a position is characterized as labor Relations on the basis of an employment contract (Articles 16-19 of the Labor Code of the Russian Federation). In particular, this means that the said manager is subject to mandatory social insurance in case of temporary disability and in connection with motherhood and has the right to pay sick leave in general order, even in the absence of a prisoner with him by general rules employment contract (clause 2 of the clarification approved by the order of the Ministry of Health and Social Development of Russia dated June 8, 2010 No. 428n). The legality of this position was also confirmed by the court (determination of the Supreme Arbitration Court of the Russian Federation dated June 5, 2009 No. VAS-6362/09).
Accordingly, the salary of such a general director is subject to personal income tax and contributions to compulsory social (pension, medical) insurance and insurance against accidents and occupational diseases in the general manner (Article 210 of the Tax Code of the Russian Federation, Article 8 of the Law of July 24, 2009 No. 212-FZ , article 20.1 of the Law of July 24, 1998 No. 125-FZ, letter of the Ministry of Labor of Russia of May 5, 2014 No. 17-3 / OOG-330).
You can set the salary for the CEO, who is the only founder (participant), in the staffing table or order.
Employment history
Situation: what document should be indicated as the basis for hiring in the work book of the general director elected to the position by the general meeting of participants (shareholders) of the organization?
As the basis for hiring the General Director in his work book, indicate:
- or details of the order on the entry of the General Director into office;
- or details of the minutes of the general meeting of participants (shareholders) (decision of the sole participant, minutes of the board of directors (supervisory board)) on the election (appointment) of the general director.
It is explained like this.
Column 4 of the work book indicates the date and number of the order (instruction) or other decision on hiring an employee (clause 3.1 of the Instruction approved by Decree of the Ministry of Labor of Russia dated October 10, 2003 No. 69).
The General Director is the sole executive body of the company and is elected (appointed) to the position by the general meeting of participants (shareholders) of the organization (sole participant, board of directors (supervisory board)) for a certain period (clause 1, article 40, article 39 of the Law of February 8 1998 No. 14-FZ, paragraphs 1, 3, article 69 of the Law of December 26, 1995 No. 208-FZ).
The agreement between the organization and the general director is signed on behalf of the company by the chairman of the general meeting of participants (shareholders) (sole participant, chairman of the board of directors (supervisory board) or other authorized person of the organization (paragraph 2, clause 1, article 40 of the Law of February 8, 1998 No. 14-FZ, paragraph 2, paragraph 3, article 69 of the Law of December 26, 1995 No. 208-FZ).
Moreover, if an employment contract is concluded with the general director, his employment must be formalized by order (instruction) (part 1 of article 68 of the Labor Code of the Russian Federation). Therefore, the CEO issues an order to take office.
Thus, for such an employee of an organization as the general director, as a basis for hiring in the work book, you can specify both the details of the order to take office and the details of the minutes of the general meeting of participants (shareholders) of the organization (decision of the sole participant, minutes of the council Directors (Supervisory Board)) on the election (appointment) of the General Director.
Similar explanations are contained in the letter of Rostrud dated September 22, 2010 No. 2894-6-1.
Situation: is it possible, when accepting a new leader, to combine his work with the resigning leader to transfer cases?
No impossible.
The duties of the head include the management of the organization, including the functions of its sole executive body (Article 273 of the Labor Code of the Russian Federation). That is, there cannot be two leaders in an organization at the same time.
The specific procedure for the transfer of powers (cases) in the event of a change in the head of the organization should be fixed in advance in the statutory documents of the organization itself, job description manager or his employment contract (Art. 57, 274 of the Labor Code of the Russian Federation). So, for example, in the section “Rights and obligations of an employee” of an employment contract with the head of the organization, a clause with the following content may be included: “In the event of termination of the employment contract (both by agreement of the parties, and unilaterally), the head is obliged within ten working days after termination of the employment contract with him, transfer the affairs to the newly appointed head (or the person acting as his/her duties) in the manner established by the founder of the organization.
Notification of the tax office
When changing the general director of an organization, it is necessary to report this to the tax office within three days (clause 5, article 5 of the Law of August 8, 2001 No. 129-FZ). This is due to the fact that the CEO is a person entitled to act on behalf of the organization without a power of attorney. Information about him is contained in the Unified State Register of Legal Entities (subparagraph “l”, paragraph 1, article 5 of the Law of August 8, 2001 No. 129-FZ). Therefore, when a new manager is hired, these data must be changed.
Fill out the notification of the change of the General Director in the form of a signed application for amendments to the Unified State Register of Legal Entities (application for Form No. Р14001, approved by order of the Federal Tax Service of Russia dated January 25, 2012 No. ММВ-7-6/25).
You can sign such a statement new leader organizations (letter of the Federal Tax Service of Russia dated August 23, 2006 No. GV-6-14/846).
Situation: what consequences may arise if the organization does not inform the tax office about the change of the general director?
The tax inspectorate can fine the head of the organization. Transactions concluded by the new general director (before entering information about him in the Unified State Register of Legal Entities) may be declared invalid.
The General Director has the right to act on behalf of the organization without a power of attorney (clause 2, article 54 of the Civil Code of the Russian Federation). At the same time, information about him must be recorded in the Unified State Register of Legal Entities (subparagraph “l”, paragraph 1, article 5 of the Law of August 8, 2001 No. 129-FZ). The maintenance of the Unified State Register of Legal Entities is entrusted to the Federal Tax Service of Russia (clause 5.5.6 of the Regulations approved by Decree of the Government of the Russian Federation of September 30, 2004 No. 506). Therefore, the organization is obliged to report the change of the general director to the tax office within three days from the moment when the new director took up his duties in accordance with the order (clause 5, article 5 of the Law of August 8, 2001 No. 129-FZ). If information about the new CEO is not provided (submitted late), tax office can fine the head of the organization for 5000 rubles. (Part 3, Article 14.25 and Article 23.61 of the Code of Administrative Offenses of the Russian Federation).
In addition, transactions concluded by the new general director (before entering information about him in the Unified State Register of Legal Entities) may be declared invalid. This is explained as follows. The organization acquires rights for itself (including entering into contracts) and fulfills obligations through its bodies (clause 1, article 53 of the Civil Code of the Russian Federation). The General Director acts without a power of attorney on behalf of the organization (subparagraph 1, paragraph 3, article 40 of the Law of February 8, 1998 No. 14-FZ and paragraph 3, paragraph 2 of Article 69 of the Law of December 26, 1995 No. 208-FZ ). The General Director, whose powers are not properly formalized (there is no information about him in the Unified State Register of Legal Entities), is not entitled to conclude transactions on behalf of the organization. Transactions made by an unauthorized person are recognized as invalid on the basis of Article 168 of the Civil Code of the Russian Federation. This approach is confirmed by arbitration practice (see, for example, the decisions of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 24, 2007 No. 3259/07, the FAS of the Moscow District of August 13, 2007 No. KG-A40-7913/07).
An invalid transaction does not entail any legal consequences. Its participants will have to return to each other everything received under the transaction (in kind or in cash). Such rules are established in Article 167 of the Civil Code of the Russian Federation.
In addition, the counterparties of the organization - VAT payers may have problems related to the reimbursement of this tax from the budget. The fact is that invoices, which are the basis for the VAT deduction, must be signed either by the head of the organization, or by persons authorized to do so by order of the head or power of attorney (clause 6 of article 169 of the Tax Code of the Russian Federation). If the invoice is signed by an unauthorized person, the buyer (customer) will not be able to receive a VAT deduction (clause 2, article 169 of the Tax Code of the Russian Federation).
Situation: Are the powers of the CEO terminated due to the expiration of the employment contract? There is no decision of the founders on the appointment for a new term or the appointment of a new general director.
No, if none of the parties to the employment contract requested such termination.
The expiration of the employment contract is the basis for its termination under clause 2 of part 1 of Article 77 of the Labor Code of the Russian Federation. Therefore, upon the expiration of the employment contract with the general director, labor relations must be terminated - an appropriate order is issued and an entry is made in the work book (parts 1, 5 of article 84.1 of the Labor Code of the Russian Federation). If for some reason this did not happen and the general director continues to work, the employment contract with him is transformed into an agreement concluded for an indefinite period (part 4 of article 58 of the Labor Code of the Russian Federation). In this case, the possibility of its termination due to the expiration of the term disappears and the contract continues to be valid until a decision is made by the participants (shareholders) of the company to elect a new director or to extend the powers of the former one. If a new head of the organization is determined by the decision of the participants, then the employment contract with the previous one can be terminated on the basis of paragraph 2 of part 1 of article 278 of the Labor Code of the Russian Federation.
The legitimacy of such a position is also confirmed by the courts, for example, in the ruling of the Supreme Arbitration Court of the Russian Federation of July 7, 2010 No. VAS-8874/10, the decisions of the FAS of the Volga-Vyatka District of June 11, 2010 No. A11-7140 / 2009, of the East Siberian District of July 8, 2010 No. А33-18690/2009. In the resolutions of the Federal Antimonopoly Service of the West Siberian District dated March 6, 2008 No. F04-1353 / 2008 (1414-A27-16), dated November 22, 2007 No. F04-8027 / 2007 (40277-A27-16) it is additionally noted that in Labor Code The Russian Federation does not provide for the rules on the automatic termination of an employment contract with the head of an organization if the contract is urgent.
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