Are a branch representative office or stationary. A separate division, branch or representative office? The difference between the concepts of "branch" and "separate division"

03.11.2019

№2 / 2004

THE CONCEPT OF SERVICE CHECK

In every organization, sooner or later, situations arise when the employer is forced to take management decisions negatively affecting individual workers. We are talking, in particular, about bringing employees to disciplinary or liability, dismissal of employees on certain grounds provided for by the Labor Code of the Russian Federation and other federal laws, and other similar situations. Note that the heads of organizations can also be included in the number of such employees.

Issuance of similar administrative acts (orders or orders) formalizing the said decisions of the employer, as follows from the provisions labor law, should be based on the establishment of relevant factual circumstances, on the one hand, predetermined each time directly by the most specific situation, and, on the other hand, assessed using some general approaches.
It is precisely this goal, that is, the establishment of a set of factual circumstances that precedes the adoption by the employer of a particular decision, and the so-called "institute internal check".

Let us clarify that a unified procedure for conducting internal audits in organizations has not been established either by the Labor Code of the Russian Federation or by any other generally significant normative act of the federal level. In addition, the term "internal audit" itself is legislatively enshrined only in regulations governing the passage of certain types of public service.

However, there are enough large organizations with a significant number of personnel working in it, local regulations are applied that regulate the procedure for conducting internal audits. At the same time, often officials, primarily from among the administrative and managerial personnel of the organization, faced with the need to establish certain circumstances (for example, the circumstances of the commission of a disciplinary offense by an employee), actually conduct internal audits, not correlating their actions with the norms of the law (without proper documentation, using invalid intrusion into privacy workers, etc.).

Finally, one cannot fail to note the fact that the results of a properly conducted internal audit, properly executed, can become additional evidence of the legitimacy of the employer's actions in the event of a labor dispute.

In this regard, consider general view some issues that, it seems, should not be left unattended by the employer when conducting internal audits<1>.

<1>Issues related to the investigation of accidents at work, the regulation of which is carried out in accordance with Articles 227 - 231 Labor Code of the Russian Federation and Federal Law No. 125-FZ dated July 24, 1998 "On Mandatory social insurance from accidents at work and occupational diseases", are not considered in this article.

CIRCUMSTANCES REQUIRED TO CARRY OUT AN INTERNAL CHECK

In our opinion, such circumstances (cases) include the following:

1. Commitment by an employee of a disciplinary offense (Articles 192, 193, 195 of the Labor Code of the Russian Federation). When deciding on the need to conduct an internal audit, the employer, first of all, must proceed both from the nature of the misconduct committed and from those negative consequences (including material ones) that have arisen or may arise in connection with this. You should also keep in mind what type disciplinary action(dismissal, reprimand or remark) can be applied to the guilty employee.

For example, it is, of course, necessary to conduct an internal audit in cases where we can talk about dismissal on one of the grounds provided for in Article 81 of the Code

1) under paragraph 5 - for repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction;
2) paragraph 6 - for a single gross violation by the employee of labor duties, which include:
absenteeism (subparagraph "a");
appearance at work in a state of alcoholic, narcotic or other toxic intoxication (subparagraph "b");
disclosure of legally protected secrets (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties (subparagraph "c");
committing at the place of work theft (including small) of another's property, embezzlement, its deliberate destruction or damage, established by a court verdict that has entered into legal force or a decision of an authority authorized to apply administrative penalties (subparagraph "d");
violation by the employee of labor protection requirements, if this violation entailed serious consequences (accident at work, accident, catastrophe) or knowingly created a real threat of such consequences (subparagraph "e");
3) point 10 - for a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties.

2. Bringing an employee to liability (Articles 232, 233, 238 - 250 of the Labor Code of the Russian Federation). It should be noted that if an employee is held liable based on the results of an inventory (scheduled or unscheduled), it seems inappropriate to conduct an additional internal audit, since, as a rule, the inventory commission during the audit process identifies and evaluates all the necessary facts and circumstances. In passing, we also point out that the main normative act defining general order conducting an inventory in organizations are the Methodological Guidelines for the inventory of property and financial obligations, approved by order of the Ministry of Finance of Russia dated June 13, 1995 No. 49.

In particular, as follows from paragraphs 2.2 and 2.3 Guidelines, to conduct an inventory in the organization, a permanent inventory commission is created; with a large amount of work for the simultaneous inventory of property and financial obligations, working inventory commissions are created; personnel permanent and working inventory commissions are approved by the head of the organization.

3. Commitment by an employee of an act that entails the possibility of his dismissal from work on certain grounds. These grounds are:

Paragraph 7 of Article 81 of the Labor Code of the Russian Federation - the commission of guilty actions by an employee directly servicing monetary or commodity values, if these actions give rise to a loss of confidence in him on the part of the employer;
paragraph 8 of Article 81 of the Labor Code of the Russian Federation - the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work;

Clause 9 of Article 81 of the Labor Code of the Russian Federation - making an unreasonable decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;

Clause 11 of Article 81 of the Labor Code of the Russian Federation - the submission by an employee to the employer of false documents or knowingly false information at the conclusion employment contract;

Paragraph 14 of Article 81 of the Labor Code of the Russian Federation - other cases established by the Labor Code of the Russian Federation and other federal laws (such cases, in particular, include such cases provided for in subparagraph 3 of paragraph 2 of Article 25 federal law dated July 31, 1995 No. 119-FZ "On the basics of public service Russian Federation"(as amended on May 27, 2003) grounds for termination of public service, as a failure to comply with the obligations and restrictions established for a public servant by this Federal Law);

Paragraphs 1 and 2 of Article 336 of the Labor Code of the Russian Federation - a gross violation of the charter repeated within 1 year educational institution; the use, including a single one, of methods of education associated with physical and (or) mental violence against the personality of a student, pupil.

4. Cases of violation of the rules for concluding an employment contract, specified in the first part of Article 84 of the Labor Code of the Russian Federation. These include:
the conclusion of an employment contract in violation of a court verdict depriving a particular person of the right to hold certain positions or engage in certain activities;
conclusion of an employment contract for the performance of work contraindicated this person for health reasons in accordance with a medical report;
the absence of an appropriate document on education, if the performance of work requires special knowledge in accordance with a federal law or other regulatory legal act;
other cases stipulated by federal laws. For example, the case of a citizen entering the civil service without providing, as required by subparagraph 5 of paragraph 4 of Article 21 of the Federal Law "On the Fundamentals of the Public Service of the Russian Federation", a certificate from the state tax service on the provision of information on property status.

5. Cases, the verification of which is directly provided for by the current legislation. These include, in particular, accidents at work, as well as cases listed in the Decree of the President of the Russian Federation of 06/01/1998 No. positions of the federal civil service" (as amended on May 31, 1999).
It should be noted that in practice, nevertheless, internal audits in most cases are carried out on the facts of disciplinary offenses committed by employees.
As a rule, the grounds for conducting an internal audit, the procedure for its conduct and registration of its results are fixed in the instructions or rules approved by the order or other local regulatory act of the employer.

MAIN OBJECTIVES OF THE INTERNAL CHECK

Among the main tasks to be solved in the process of an internal audit, it is possible to include the establishment of the following circumstances:

1) of course, the very fact of committing an act that serves as the basis for the employer to make an appropriate decision (disciplinary or immoral offense, other illegal action or inaction). Note that such an act, in principle, may be lawful (for example, if the head of the organization makes a lawful, but unreasonable decision). It may also not be about the act of the employee as such, but about another specific legal fact (for example, obtaining a second citizenship by a civil servant);

2) the time, place, circumstances of the commission of the relevant act, as well as an assessment of its consequences (for example, the nature and extent of the damage caused);

3) a specific employee (employees) who committed the specified act;

4) the fault of the employee (employees) in the commission of this unlawful act;

5) the goals and motives for committing the act and their assessment, assessment of circumstances mitigating or aggravating liability, including business qualities employee, his specific life circumstances, causes and conditions that contributed to the commission of this act.

In the course of an internal audit, as a rule, proposals are developed on measures of disciplinary or other liability of an employee in the event that he commits a corresponding unlawful act.
In addition to this, it seems appropriate to also prepare recommendations on the implementation of preventive measures aimed at eliminating the causes and conditions that contributed to the commission of such an act.
Finally, we note that during an internal audit, the collection of the necessary information can only be carried out by public methods in compliance with the rights and freedoms of man and citizen, and the information received related to the committed act must be documented in accordance with the rules of office work adopted in the organization.

ORGANIZATION AND PROCEDURE OF PERFORMANCE INSPECTION

The reason for conducting an internal audit, as a rule, is information about an illegal act that has become known to managers structural divisions organizations, about which they are certainly obliged to report in the prescribed manner to the head of the organization, who, based on an assessment of this information, immediately makes a decision on verification.
In our opinion, an audit should really begin no later than 3 days from the moment of receipt of the information that was the reason for its conduct, and be completed, as a rule, no later than 20 days from the date of its appointment (at least on the fact of committing a disciplinary offense, taking into account the terms provided for in Article 193 of the Labor Code of the Russian Federation).
Depending on the conditions of a particular situation, the head of the organization may entrust the conduct of an audit to both a specific employee (as a rule, the head of the relevant structural unit) and a commission specially created for this purpose.
An internal audit is carried out on the basis of an order or other administrative act of the employer, which usually indicates:
the reason for the inspection;
the composition of the commission, its chairman and the powers of the commission (if such powers are not enshrined in the relevant local regulatory act of the organization);
the deadline for conducting the audit and the deadline for submitting to the head of the organization the materials of the audit and the conclusion (act) based on its results.

Usually, the composition of the commission, depending on the specifics of the committed act, includes employees of the personnel department, legal department, security department, financial department, and, if necessary, also employees of other structural divisions of the organization.

Note that the commission should not involve an employee who has committed the act for which the audit is being carried out, as well as employees who are related to him or by property, as well as employees who are directly subordinate to the employee in respect of whom the audit is being carried out. At the same time, if such an employee is a member of a trade union, it is advisable to include a representative of an elected trade union body.

The work of the commission is organized by its chairman, who is responsible for meeting the deadlines, completeness and objectivity of the internal audit. An order (another administrative act) to conduct an internal audit must be brought under the signature to all members of the commission, as well as the employee in respect of whom the audit is being carried out.

As a rule, members of the commission are vested with the following rights:
call employees and receive from them written explanations or other information on the merits of the audit;
get acquainted with the relevant documents of the organization, if necessary, attach them (or their copies) to the audit materials;
require employees of the organization to provide documents or information related to the ongoing inspection for familiarization with them or attaching them to the inspection materials;
if necessary, with the permission of the head of the organization, receive advice from third-party specialists on issues requiring special knowledge, and also request Required documents(their copies) from government agencies, from legal entities and individuals.
document the information received.

Members of the committee are required to:
take all necessary measures for a comprehensive, objective study and documentation of information about all the circumstances of the committed act;
consider and attach to the materials of the internal audit statements related to it and received during its conduct;
ensure the safety and confidentiality of the audit materials, not disclose its results until the head of the organization approves the conclusion (act) on the results of the audit;
draw up, based on the results of the work of the commission, a conclusion (act) on the results of an internal audit;
prepare proposals on the measure of disciplinary, financial and other liability of the guilty employee;
submit to the head of the organization within the established time limits the materials and the conclusion (act) on the results of the internal audit.

Let us pay attention to the fact that the employee in respect of whom an internal audit is carried out has the right to:
1) give written explanations outlining his opinion on the committed act, state the evidence he has;
2) to demand that the documents and materials submitted by him be attached to the verification materials;
3) submit an application to the head of the organization for the removal of a member (members) of the commission from conducting an audit with specific arguments explaining such a removal;
4) upon completion of the internal audit, get acquainted with its materials and the conclusion (act) on the results of the audit, which should be confirmed by the signature of the employee on the conclusion (act) on the results of the audit. In case of refusal to familiarize with the conclusion (act) or to sign, an appropriate act is drawn up.

The commission directly receives written explanations from the employee who committed the illegal act. At her request, other employees related to the committed act must also provide written explanations.
If the employee refuses to provide written explanations, an act should be drawn up indicating the place, date and time of its preparation; personal data of the members of the commission (position, surname, name, patronymic) who drew up the act; the content of the reasons for the employee's refusal to give written explanations in any form (an example of such an act is given in the "PAPERS" section - p. 75).
Upon completion of the internal audit, the commission draws up a conclusion (act) on the results of the internal audit, containing, in particular:
the grounds and reason for the inspection, the composition of the commission that conducted it;
information about the time, place, circumstances of the commission of the unlawful act;
information about the employee who committed it (position, last name, first name and patronymic, year of birth, education, time of work in the organization, as well as in the position held);
the motives and goals of the employee committing an unlawful act, the form of the employee's guilt (intentional or negligent);
the reasons and conditions for committing the act;
data on the nature and extent of the damage caused as a result of the unlawful act, the causal relationship between the act and the damage caused;
proposals on the measure of responsibility of the guilty employee.

The conclusion (act) is signed by the members of the commission and approved by the head of the organization. In case of disagreement with the conclusions or with the content of certain provisions of the conclusion (act), a member of the commission has the right to attach to it his explanatory note stating his dissenting opinion.
The following is usually attached to the conclusion (act) based on the results of an internal audit:
a document containing the information that gave rise to the appointment of a check (for example, a memo);
a copy of the order (other administrative act) on the inspection;
explanations of employees, and, if necessary, other persons;
performance characteristics of the employee in respect of whom the check was carried out;
other documents related to the facts established during the verification.

Internal audit documents, in our opinion, are classified as confidential information. The original conclusion (act) and other audit materials should be kept in the personnel department of the organization. In addition, it is advisable to attach a copy of the conclusion (act) based on the results of an internal audit to the personal file of the employee in respect of whom it was carried out.
Let us also pay attention to the fact that if, as a result of an internal audit, circumstances are established that indicate the presence of signs of a crime or administrative offense, the head of the organization is obliged to notify the relevant law enforcement agency about this.

We hope that this article at least to some extent will help employers in the preparation of a local regulatory act on the conduct of internal audits.

An internal audit is carried out in the event of an incident that needs to be investigated, when the guilty employee cannot be identified and punished. This is usually gross negligence or theft at work. Find out what the verification procedure is and how to document the results.

From this article you will learn:

When to conduct an audit at the enterprise

A working investigation is carried out in the event of an incident that needs a detailed comprehensive review and which cannot be immediately attributed to one or another violation. labor discipline, identify and punish the guilty employee. Usually this is some kind of gross negligence or theft in production.

The initiator of the investigation may be the employer himself (or a person authorized by him) or any of the employees or a group of them. It is important to try to quickly collect all the evidence of the violation and the necessary evidence. The fact of misconduct must be documented (statement of an emergency at work, statement of an employee, consumer complaint, etc.)

The procedure for conducting an internal audit

The term of the audit is limited by the term for bringing the employee to disciplinary responsibility. It is necessary to start the event within two weeks from the date of detection of the violation, to complete no later than one month from the date of the decision.

The period of the investigation does not include the periods when the inspected employee is on vacation, on a business trip, as well as periods of his temporary incapacity for work.

For this time, the term of the event may be suspended, the basis is the report of the employee conducting it, or the decision of the official who appointed it. It is worth considering that in total, taking into account also the time of coordination, the period of the investigation cannot exceed six months.

The actions of the employer, if it is necessary to organize an internal audit, are as follows:

Step 1. After receiving information about the misconduct that needs to be investigated, it is necessary to remove the employee who committed the misconduct from work. He will receive wages during the suspension period anyway, so the employer should be interested in not delaying the event for this reason.

Whoever initiated the review, the first action will be to issue a suspension document. this employee. The obligation to draw up and sign it lies with the management of the enterprise.

Step 2. When the decision to hold the event has already been made, it is necessary to form a group (commission) that will conduct the investigation, determine their rights and terms of reference.

Please note: Committee members are elected at the discretion of the employer. Usually these are employees of the legal and personnel service, financial management and security services.

In order to avoid a biased approach to the matter, neither the employee under discussion, nor his subordinates, nor relatives, if any, should be included in the commission.

If it is proved that the members of the commission are personally interested in the course of the investigation, it can be considered invalid.

Step 3. An order for an internal audit is issued. It must indicate:

Basis for investigation.
The composition and powers of the commission (headed by the chairman) or other responsible persons.
The timing of the event and how its results will be framed.

The verification itself is a consideration of the facts on the violation and obtaining explanatory notes from all persons who can give reasoned information along the way. After discussion, the responsible commission draws up a conclusion on the results.

The employee under investigation has the right to give or not to give any explanation. But in the second case, this will automatically be interpreted not in his favor.

How to submit test results

Based on the results of the event, it is necessary to draw up a written conclusion-report (or act) on the work done by the commission, the facts and evidence collected and considered by it.

It is objectified as much as possible, the conclusion on an internal audit cannot contain anyone's conjectures. If, for example, the employee ends up being fired and sues for illegal dismissal, the results of the investigation will serve as evidence of the justified position of the employer.

The report sets out the circumstances of the case and the circumstances examined by the commission. A conclusion is also needed: is a particular employee guilty and what punishment should follow for him in case of guilt. If there are signs of a criminal offense or administrative violation, you need to go further, to law enforcement agencies.

The conclusion is signed by all the head of the enterprise, members of the commission and, if necessary, involved persons (for example, witnesses).

The audited employee has the right to familiarize himself with the conclusion and must sign under it. If secret production information appears in one way or another, it is necessary to organize familiarization with the document without issuing secrets. In addition, the employee always has the opportunity to challenge the result in court.

The possibility of conducting an internal audit is provided for by Russian legislation on state and municipal service. It is usually carried out in relation to employees who have committed a disciplinary offense. Its procedure and terms are strictly regulated by law and by-laws.

Rules on service check

The internal audit of such employees is regulated by the legislation on state and municipal service, certain types services (Ministry of Internal Affairs, FAS, FCS, FTS, etc.).

General rules on service checks, relevant for all types of service, are contained in Art. 59 of the Law "On the State Civil Service of the Russian Federation" .

Internal Audit Rules

An internal audit is a thorough study of all the circumstances of a disciplinary offense committed by an employee.

They may commit actions (or omissions) that violate:

official regulations;
service contract;
labor regulations;
requirements of laws and other normative legal acts.

Actions (inaction) of an employee can be expressed in:

failure/improper performance official duties;
violation of labor discipline;
non-compliance with the prohibitions for employees established by law;
violation of obligations to keep state and official secrets.

Wherein illegal actions(inaction) of an employee can be considered a disciplinary offense if they are committed through his fault (intentional or negligent).

Carrying out an inspection

The grounds for its implementation may be the decision of the employer (representative of the employer), as well as a written request of the employee himself.

The procedure for conducting an internal audit is regulated in the regulations on specific types of service.

In any case, during its implementation, the following must be established in full, impartially and comprehensively:

the fact of a disciplinary offense committed by an employee;
his guilt in misconduct;
reasons and conditions for committing;
the amount of harm caused by the offense and its nature;
the grounds for the employee's application with a written request for an internal audit.

The timeliness and correctness of the scheduled service check must be controlled by the employer.

It is entrusted to conduct it to the subdivision of the state body for civil service and personnel with the mandatory participation of lawyers and the trade union body (if any). The employee himself, who is interested in its results, should not participate in the verification, otherwise they will be considered invalid.

He may be temporarily suspended from work for the duration of the inspection based on the order of the employer. The cash content is preserved.

An employee in respect of whom an internal audit is being carried out has the right to:

give explanations, submit applications, petitions and other documents;
appeal against the decisions and actions of the persons conducting the inspection;
get acquainted with the conclusion of the internal audit and its other materials upon completion (if it does not contain information constituting a state secret).

The results of the service check

The verification must be completed within one month. The results are documented in the form of a written opinion, which is sent to the appointing party. official.

It must necessarily contain the facts and circumstances established by the audit, as well as a proposal on the application / non-application of a disciplinary sanction to the employee.

The conclusion is signed by the participants in the internal audit and then attached to the personal file of the employee in respect of whom it was carried out.

The most successful firms sell their products and services far beyond the boundaries of a particular area and even country. Separate subdivisions help these organizations to actively develop their business in another region. Many small companies strive to achieve the same impressive results. This will allow them to increase sales, take a leading position in the market and get the highest possible income. Increasingly, the leaders of such organizations are realizing that it is impossible to implement an ambitious strategy within the boundaries of one city. To increase brand awareness and effectively promote your product, you need to open offices in the places of residence of the largest number of potential buyers. To properly organize the workflow on the territory of a remote subdivision, you need to understand how a branch differs from a representative office.

Definition of concepts

A representative office is a separate division of an organization located outside its location and representing and protecting its interests.

Branch is separate subdivision company, located outside its location and having the right to exercise all of its functions or a certain part of them.

The main documents indicating the difference between a branch and a representative office, and regulating their work, are:

Civil Code of the Russian Federation;
Tax Code of the Russian Federation;
Instruction of the Bank of Russia defining the procedure for opening and closing accounts;
The charter of a particular company;
The position of a certain organization on the work of its branches or representative offices.

General characteristics

For a clear idea of the main differences between the compared types of separate units, you need to know about the specifics of their work as a whole. Comprehensive analysis is possible only if identical features are understood. In order for both branches and representative offices to be able to fully carry out all the necessary tasks, you should:

separate them from the main company;
locate outside the location of the company that created them;
allocate property necessary for conducting activities;
approve the regulations on the work of these units, on the basis of which they will act;
appoint managers and issue them with appropriate powers of attorney;
indicate separate offices in founding documents parent organization;
provide an opportunity to expand the scope of the main company.

Such a separate subdivision as a branch has the following features:

fully or partially performs the functions of the parent organization;
carries out business activities;
works on the basis of the regulation on the branch and the charter, which provides for the introduction of information about this structural unit;
has its own balance;
usually cooperates with the bank regarding the opening of a separate account.

Representation is characterized by:

performs exclusively representative functions;
does not conduct any economic activity;
acts guided by the provision on representation and the charter, which provides for the introduction of information about this structural unit;
does not have its own balance;
does not require opening a bank account.

The information provided displays b about greater (compared to representation) independence of the branch.

Important nuances and determining factors

The work of both separate divisions may also require accreditation of the respective specialists. If the branch carries out activities subject to licensing, it needs to obtain required licenses. Since its management is usually delegated the authority to pay wages, the company must be registered at the location of the branch in the following off-budget funds of the Russian Federation:

pension;
social insurance;
territorial compulsory health insurance.

It is advisable to create a representative office if its main responsibilities are:

promotion of a branded product;
increasing brand awareness;
resolution of problem situations;
customer acquisition;
conclusion and maintenance of contracts.

To solve more complex problems, it is worth opening a branch. However, close attention should be paid to the analysis of its potential profitability, since its content often requires about greater financial costs.

To choose the most suitable type of separate subdivision, you need not only to know how a branch differs from a representative office, but also to understand the purpose and prospects of opening such an office.