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Labour Safety Center «NSS Consult»
phone Telephone in Moscow: 8 (495) 660-38-44
phone Free calls over Russia: 8 (800) 500-73-52
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Substitution of labor relations by civil law

When entering into a contract with an employee, the employer must take a well-weighted decision on which contract should be concluded - civil or labor, taking into account the nature and content of the upcoming relationship.

Consider the differences between these contracts.

Distinctive characteristic

Civil Law Treaty

Employment Contract

Recruitment

To perform a specific task

For a certain position by staffing

Applying for a job

Civil Law Treaty

Employment contract, employer's order

Work books

Are not issued

Check out

Remuneration

For the result of labor in accordance with the terms of the contract

Wages are paid regularly, at least twice a month

Discipline of work

The employee independently solves this issue

The employee is subject to internal labor regulations

Working Conditions

An employee responds

Responding to an employer

Risk of work

The worker bears

The employer bears

Benefits provided by labor law

Not Applicable

Distributed

Vacation

Not provided

Provided

Severance pay

Not being paid

Paid

Allowance for temporary incapacity for work

Not being paid

Paid

Contributions to social insurance against occupational accidents and occupational diseases

Pays the employer, if it is stipulated in the contract !!!

Paid by the employer

Before entering into a civil law contract, the employer must take into account the following circumstances:

1. The conclusion of civil contracts that actually regulate labor relations between the employee and the employer is not allowed (Article 15 of the LC RF).

2. If the relations connected with the use of personal labor arose on the basis of a civil law contract, but subsequently were recognized as labor relations, the provisions of the labor legislation and other acts containing the norms of the labor law (Article 11 of the RF Labor Code apply to such relations) ).

3. If the state labor inspector or the court recognizes the relationship as a labor, they will be considered to have arisen from the moment of the actual admission of the employee to work (Article 19.1 of the Labor Code of the Russian Federation).

4. Undue doubts when the court considers disputes on the recognition of relations that arose on the basis of a civil law contract, labor relations are interpreted in favor of the availability of labor relations (Article 19.1 of the LC RF).

5. A heavy accident or fatal accident that occurred with an employee who performed work under a civil law contract is investigated in accordance with the established procedure by the state labor inspector on the basis of the application of the victim or his family members (clause 16 of Appendix No. 2 to Decree of the Ministry of Labor and Social Development of the Russian Federation of October 24, 2002 No. 73).

6.If during the investigation of an accident that occurred with an employee who performed work on the basis of a civil law contract, information was found that gives sufficient grounds to believe that the contract actually regulated the labor relations of the victim with the employer, then the act on the investigation of the unfortunate Case together with other materials of the investigation is sent by the state labor inspector to the court in order to establish the nature of the legal relationship (clause 28 of Appendix No. 2 to the Minis Decree Labor and Social Development of the Russian Federation of October 24, 2002 No. 73).

7. The Regulation on Investigation and Registration of Occupational Diseases, approved by Decree of the Government of the Russian Federation of December 15, 2000, No. 967 applies to citizens performing work under a civil law contract (clause 3).

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Consider the consequences that the employer may have if the employment relationship is changed by civil law.

1. The conclusion of a civil contract, which actually regulates the employment relationship between the employee and the employer, - entails the imposition of an administrative fine on officials in the amount of 10,000 to 20,000 rubles Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

2. According to Art. 212 of the Labor Code, the obligation to ensure safe working conditions and labor protection is assigned to the employer. Art. 21 of the Labor Code grants the employee the right to conclude an employment contract with him, as well as to a workplace that complies with state regulatory requirements for labor protection.

In the event that a civil contract is concluded with the employee instead of a labor contract, the employer does not fulfill his duties, namely:

-conducting a special assessment of working conditions;

-Do not allow the work of persons who did not undergo in due course training and instructing on labor protection, internship and testing knowledge of labor protection requirements;

-do not allow employees to perform their job duties without going through mandatory medical examinations;

-Application of personal and collective protection of employees.

3. The employer's violation of the established procedure for conducting a special assessment of working conditions in the workplace or its non-conduct- entails the imposition of an administrative fine on officials in the amount of 5,000 to 10,000 rubles (Article 5.27.1 of the Code of Administrative Offenses of the Russian Federation Part 2).

4.Omission of an employee to perform his labor duties without passing through the established procedure for training and testing knowledge of labor protection requirements, as well as mandatory preliminary (when entering work) and periodic (during work) medical examinations - entails the imposition of an administrative fine on officials in the amount of 15,000 to 25,000 rubles (Article 5.27.1 of the Administrative Code of the Russian Federation, Part 3).

5. Failure to provide employees with personal protective equipment - entails the imposition of an administrative fine on officials in the amount of 20 000 to 30 000 rubles (Article 5.27.1 of the Administrative Code of the Russian Federation, Part 4).

6. In addition, the employer is obliged to ensure compulsory social insurance of workers against accidents at work and occupational diseases, and in case of need to conduct an investigation and record in the established by the Labor Code, other federal laws and other regulatory legal acts of the Russian Federation of occupational accidents and occupational diseases.

7.If an employee makes a civil contract instead of a work contract, and the employer does not make contributions to social insurance against occupational accidents and occupational diseases to the Social Security Fund, then in the event of a serious industrial injury or unhappy A case with a fatal outcome all costs for compensation of harm caused to the life and health of the employee are borne by the employer.

Let's sum up, in what amount in the form of administrative fines for the employer will turn the substitution of civil-law relations:

1. For the conclusion of a civil law contract, instead of a labor contract of 10,000 to 20,000 rubles (Article 5.27 of the Administrative Code of the Russian Federation).

2. For not conducting a special assessment of working conditions from 5 000 to 10 000 rubles (Article 5.27.1 of the Administrative Code of the Russian Federation part 2).

3.For the employee's admission to the performance of his work duties without passing through the established procedure of training and testing knowledge of labor protection requirements from 15 000 to 25 000 rubles (Article 5.27.1 of the Administrative Code of the Russian Federation part 3).

4. For the admission of an employee to perform his or her work duties without passing through the established procedure, compulsory preliminary (upon admission to employment) and periodic (during work) medical examinations from 15,000 to 25,000 rubles (art. 5.27.1 of the Administrative Code of the Russian Federation, part 3).

5. For failure to provide the employee with personal protective equipment from 20 000 to 30 000 rubles (Article 5.27.1 of the Administrative Code of the Russian Federation part 4).

Thus, the total administrative penalty for the employer may be from 65 000 to 110 000 rubles.

In addition, all the costs for the employer to compensate for the harm caused to the life and health of the employee from an accident at work or occupational disease in the event of the substitution of civil law for labor relations is even approximately calculated, That this amount will significantly exceed the amount of economy at the expense of not paying insurance premiums for compulsory social insurance against accidents at work and occupational diseases to the Social Insurance Fund

In conclusion, I would like to recommend that employers more cautiously approach the issues of concluding civil contracts, as well as conduct an audit of existing contracts, critically assessing them for similarity to employment contracts (in form) and labor relations (in fact).



sotrudniki

Author:

Alexander N. Krymov

Head of Investigation of Industrial Accidents

Contacts

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Phone in Moscow
8 (495) 660-38-44
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Free calls over Russia
8 (800) 500-73-52
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Moscow,
Kievskoye Highway, 1