Legal status of the head of a legal entity. The legal status of the head of the organization. Labor function of the head of the organization

Legal status the head of the organization in the relationship constituting the subject labor law, dually : one side, the manager represents the owner-employer in relations with employees (organizes the labor process, selects and places personnel, carries out other organizational and managerial actions on behalf of the owner of the property), with another- puts his labor at the disposal of the owner of the property and in this sense he is an employee himself. In his first capacity, the leader participates in organizational and managerial relations in the world of work (for example, according to the conclusion collective agreement) and some other so-called closely related labor relations. In the second - in the actual labor legal relationship, the parties to which in this case are the head - as an employee and the owner of the organization's property - as an employer.

The rights and obligations of the head of an organization, as an employee, can be specified in laws, other regulatory legal acts, constituent documents and an individual labor contract. . The peculiarities of the labor function of the head of the organization are primarily associated with the fact that, by virtue of his obligations under the employment contract, he implements legal personality legal entity as a participant in civil turnover.

The powers of the head of the organization include:

è organization of the organization's work;

è represents the interests of the organization on the territory of the Russian Federation and abroad ;

è disposes of the property of the organization;

è makes transactions on behalf of the organization;

è issues powers of attorney, including to the heads of branches and representative offices, performs other legal actions;

è approves the structure and staff of the organization, recruits employees of the organization, concludes, changes and terminates labor contracts with them;

è hires a chief accountant in accordance with the established procedure;

è applies measures to employees of the organization disciplinary action and incentives in accordance with the current legislation of the Russian Federation, ensures compliance with the requirements of labor legislation;

è delegates his rights to deputies, distributes responsibilities between them;

è within the limits of its competence, issues orders and gives instructions binding on all employees of the organization, approves regulations on representative offices and branches;

è determines, in accordance with the legislation of the Russian Federation, the composition and volume of information constituting trade secret enterprises, as well as the procedure for its protection
Question number 14. Legal relations directly related to labor relations.

Labor relations Is a relationship based on an agreement between the employee and the employer on the performance by the employee personally and for a fee of his labor function. The employee is obliged to obey the internal labor regulations, and the employer must ensure the working conditions stipulated by laws, agreements and contracts.

Organizational and managerial relations in the world of work. These relations are formed in the process of organizing and managing labor between the administration of enterprises, institutions, organizations, on the one hand, and the labor collective (or a body representing it), on the other.

Socio-economic relations in the field of labor law they are formed between subjects located outside enterprises, institutions, organizations, and this is what determines their content, which serves as the basis for local acts, which, in turn, presupposes their separate consideration.

Relations on vocational training and advanced training directly at enterprises. These relations either precede the emergence of labor relations, or exist simultaneously with labor relations. Their goal is to train skilled workers through vocational training in production (individual or group or advanced training). The content of these relations is not only labor, but mainly training in a certain specialty or qualification in the labor process.

Employment relationships. They arise in connection with the appeal of citizens to employment agencies. These legal relations include the following types: a) relations between a citizen and an employment agency - an employment service that a citizen asks to pick up for him suitable job; b) the relationship between the employment service and the organization to which the employed person is sent; c) the relationship between the employer and the organization that should hire him.

Liability relations of the parties to the employment contract. The basis for the emergence of these legal relations is the commission of an offense by one of the parties to the employment contract.

Labor dispute settlement relations. They arise in connection with the resolution of disagreements both between the employee and the employer (individual labor disputes) and between the labor collective and the administration as a body of the enterprise, institution, organization (collective labor disputes) regarding the establishment of working conditions, as well as the application of labor legislation. Collective labor disputes can also arise when agreements are concluded. Then the parties to the dispute, respectively, become those subjects between whom the agreement is concluded.

Relationship on supervision of labor protection and observance of labor legislation. To ensure all basic labor rights of citizens and, in particular, the right to health and safe working conditions, a whole system bodies that exercise the functions of supervision and control over the observance of the obligations of the employer corresponding to these rights. General state supervision over compliance with legislation, including labor legislation, is carried out by the prosecutor's office. In addition, there are specialized state bodies called upon to oversee occupational safety and health.

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INTRODUCTION

1.4 Features of the grounds for the emergence and termination of labor legal relations with the head of the organization

CHAPTER 2 RESPONSIBILITIES OF THE HEAD OF THE ORGANIZATION

2.1 Disciplinary responsibility of the head of the organization

2.2 Property and material responsibility of the head of the organization

2.3 Administrative and criminal liability of the head of the organization as an official

CONCLUSION

BIBLIOGRAPHY

INTRODUCTION

Relevance of the research topic. The organization of work in any sphere is structured in such a way that there must always be a person in charge of the labor process, a person who can direct the labor activity of a whole group of people in the right direction, determine common goal and a challenge for everyone. Such people should, of course, have the makings of a leader, the ability to unite an sometimes disparate group of people, clearly defining the rights and responsibilities of each. This role is associated with increased responsibility for the decisions made and the people entrusted to subordination. In the sphere of labor and economics, this role is most pronounced for the head of the organization as a person with the authority to manage the most isolated, independent and independent education in modern society- organization. The key category in understanding the essence of a leader is the category of management, since it is the real actions of managing an organization that turn a person “sitting” in a leader’s chair into a real leader and “owner” of the organization.

The need for management in humanity arose long ago. In fact, as soon as the need arose to manage something - an object of management appeared, a certain category of people immediately appeared - “managers” capable of performing the functions of management, leadership in a certain area and the disposal of entrusted property at a professional level.

Labor Code Russian Federation Labor Code of the Russian Federation of December 30, 2001 No. 197-FZ (as amended on July 28, 2012) // Collected Legislation of the Russian Federation.-2002.-No. 1. -Article 3. (hereinafter referred to as the Labor Code of the Russian Federation) for the first time regulated the work of the head at the legislative level. However, complex and contradictory from the point of view of regulatory regulation is the legal status of the head of the organization. The task of determining the sectoral affiliation of his labor relations, which at first glance may seem private, goes to the level of criteria for distinguishing between labor and civil legal relations in general, and, by and large, and delineating the subjects of industries. Despite the obvious specifics of the manager's labor relations, a special legislative act directly devoted to the regulation of his labor has not yet been adopted. The norms that establish individual features of his labor relations are found in various legislative acts and often regulate identical situations in different ways.

At the same time, some unconditional signs of an employment relationship are manifested in a manager with a certain originality. At the legislative level, it has not been decided which person (body) performs the functions of administration in relation to the head himself. His subordination to the employer is not limited to compliance with the internal labor regulations, but consists in the obligation to act in the interests and under the guidance of the employer. The labor function of a manager is defined, in our opinion, too broadly, and consists in the management of labor, property and the organization as a whole.

The purpose of the study is to consider the most relevant aspects of the labor law status of the head of the organization, as well as to analyze the features legal regulation his work and research into the issues of managerial responsibility.

To achieve the goal, the following research objectives were set:

1. To investigate the specifics of the labor law status of the head of the organization;

2. To study the features of labor regulation of the head of the organization;

3. Consider the features of the emergence and termination of labor legal relations with the head of the organization;

4. Consider the responsibility of the head of the organization.

The theoretical basis of the research is the works of civil scientists and specialists in the field of labor law. The author of the thesis used scientific works E.A. Sukhanova, B.B. Cherepakhina, G.F. Shershenevich, D.R. Akopova, T.A. Boychenko, V.V. Dolinskaya, B.R. Karabelnikova, T.Yu. Korshunova, A.M. Kurennoy, S.P. Mavrina, E.F. Martirosyan, O.B. Zaitseva and other authors.

In accordance with this, the structure of the research is being built: the thesis consists of an introduction, 2 chapters (including 7 paragraphs), a conclusion, as well as a list of normative legal sources and used literature.

CHAPTER 1 LABOR STATUS OF THE HEAD OF THE ORGANIZATION

1.1 Specificity of the employment status of the head of the organization

The Labor Code of the Russian Federation defines the head of an organization as an individual who, in accordance with the law and other regulatory legal acts, the constituent documents of the organization and local regulations manages this organization, including performing the functions of its sole executive body(Article 273 of the Labor Code of the Russian Federation).

According to the author V.V. Ershov, the peculiarities of the legal status of a manager are determined by his role and place in the organization of labor. In labor relations with other employees, he acts as a representative of the employer, concluding employment contracts, exercising disciplinary and other powers in the personnel field. The question arises - who is the employer in relation to the leader himself? After all, he cannot hire himself, conclude an employment contract with himself, set his own wages, etc.

There is a point of view according to which the employer for the head of the organization is the body that appoints the head ( government agency or body local government- for heads of a state or municipal enterprise, participants or founders, members of organizations, board of directors - for heads of commercial and non-profit organizations). Ershov V.V., Ershova E.A. Labor contract. M., 2000.-S. 84-86. This approach does not seem entirely correct. Bodies authorized to appoint (elect) a manager to a position conclude an employment contract with him as a representative of the employer, and not the employer himself. The employer is the organization headed by the manager as an employee. Part 3 of Art. 20 of the Labor Code of the Russian Federation, which establishes that the employer is a legal entity, and its rights and obligations in labor relations are exercised by the management bodies of the organization or by persons authorized by them.

According to the author E.V. Bogdanov, it is the legal entity that provides the job (the position of the head, along with others, is included in the organization's staffing table), exercises the rights and bears obligations to its employees, regardless of who hires (appoints) the employee ... The responsibilities of the organization as an employer are expressed, in particular, in creating appropriate working conditions, paying remuneration for work, ensuring social guarantees and benefits. Salaries are paid from the funds of this legal entity. In the event of a labor dispute, the defendant in court will be the legal entity, and not the body that made the decision on the appointment to the position. Consequently, it must be recognized that the organization itself acts as a legal entity as an employer in relation to a manager (like any other employee). But on her behalf, in this case, not the head will act (as is usually the case when concluding an employment contract), but the body (person) authorized to elect (appoint) a head, since the head himself in this situation cannot realize the legal personality of a legal entity. Bogdanov E.V. Legal status of the body of a legal entity // Journal of Russian Law.-2001.- No. 3.-С.108-113

On the basis of the decision of the authorized body, an employment relationship arises between the head and the organization headed by him. This is confirmed by the norms of civil legislation, for example, in particular, paragraph 3 of Art. 69 FZ "On Joint Stock Companies" Federal Law of the Russian Federation "On Joint Stock Companies" dated December 26, 1995. No. 208-FZ. // Collected Legislation of the Russian Federation. -1996.- No. 1.- Art. 1.and clause 1 of article 40 of the Federal Law "On companies with limited liability"Federal Law of the Russian Federation" On Limited Liability Companies "dated February 8, 1998. No. 14-FZ // Collected Legislation of the Russian Federation. - 1998. - No. 7. - Article 785, establishing that the sole executive body of the company concludes an agreement with the company, which is signed on behalf of the company. Consequently, such an agreement engenders a relationship between the manager and the legal entity itself.

The issue of the implementation of the employer's legal personality in relation to the head is being resolved in a dual way. The fact is that part of the powers belongs to the competence of the head himself, and some are carried out by other management bodies. As a rule, managers themselves decide questions about their business trips, vacations, and work hours. But the appointment to the position, bringing the manager to disciplinary or material responsibility, removing him from office, terminating his powers are carried out by other governing bodies of the legal entity.

On behalf of the employer, various bodies specified in the legislation and constituent documents of legal entities can act. Thus, the conclusion, amendment and termination of employment contracts with the heads of federal state unitary enterprises are carried out by federal executive bodies exercising the powers of the owner in relation to federal property transferred to the federal state unitary enterprise. It may be appropriate federal ministries, and in relation to enterprises included in the privatization program - Federal agency on federal property management. At the regional level, appointment of managers government agencies can be entrusted to the heads of the executive bodies of state power (regional, territorial, republican). With the heads of municipal enterprises, an employment contract on behalf of the owner is concluded by the heads of local (municipal) governing bodies, as a rule, the head of the administration (city, district) or special governing bodies authorized by him (committees for the management of municipal property). The heads of joint stock companies are appointed (elected) by general meetings of shareholders or by boards of directors (supervisory boards). The heads of limited liability companies are elected by the general meeting of the members of the company.

In state or municipal educational institutions, the head can be elected by the collective educational institution, was elected by the collective upon prior agreement of the candidacy with the founder, elected by the collective with subsequent approval by the founder, appointed or hired by the founder (clause 4 of article 35 of the Law of the Russian Federation of July 10, 1992 No. 3266-1 "On Education" as amended by Federal Law of 13 January 1996 No. 12-FZ Federal Law of the Russian Federation "On Education" dated July 10, 1992 No. 3266-1-FZ. // Collected Legislation of the Russian Federation.-1996.-No. 3.-Art. 150.).

In the current Russian legislation, there is a different degree of completeness of the regulation of labor relations between heads of organizations of various organizational and legal forms and forms of ownership. To the greatest extent, the labor and legal status of heads of state-owned enterprises is regulated, for which the procedure for concluding labor contracts, holding a competition for filling the position of a head, conducting certification of managers, as well as a model labor contract has been approved.

The head of an organization, as a subject of labor law, has a special labor law status, primarily due to the fact that he belongs to the category of subjects directly involved in management activities, i.e. to officials. The distinctive features of an official should include the powers of these persons to commit legally significant actions aimed at the emergence, change or termination of legal relations.

The concept of an official is always inextricably linked with the concept of a position, although it is not equivalent to it. The norms of Art. 15 and 57 of the Labor Code of the Russian Federation associate the concept of a labor function with the performance of work according to the position in accordance with staffing table, profession, specialty with an indication of qualifications or a specific type of work performed. Power powers are manifested in the labor function of an official. Here is what D. N. Bakhrakh writes on this issue: “The authoritative powers of the subjects of management are varied, most often they include the rights to:

1) implementation of regulatory guidance;

2) implementation of methodological guidance;

3) the distribution of specific tasks;

4) solution of structural issues;

5) solution of personnel issues;

6) direct management of production activities;

7) disposal of material and non-material resources;

8) encouragement;

9) implementation of control;

10) application of compulsory measures to subordinates;

11) the application of compulsory measures within the framework of off-duty subordination ”. Bakhrakh D.N. Basic concepts of the theory social management... Perm, 1978.- p. 54

The emergence of norms specifically regulating labor Relations the head is the undoubted merit of the Labor Code of the Russian Federation. This to some extent resolved the problems associated with the uncertainty of the legal status of the head, since in the 1990s. were extremely topical issues related to the relationship between the organization and its leader. In particular, in the legal literature there have been disputes over what kind of relationship arises between the head and the organization itself as an employer: labor or civil? Answer to this question made it possible to clearly define the type of legal personality (labor or civil), which the head of the organization possesses. A.A. Kel'tseva, examining the legal status of a manager, representing his qualitative legal characteristics as a subject of law, emphasizes the main difference between the legal status of a manager, which is that, on the one hand, he represents the interests of the owner and performs the functions of an employer in relation to others. employees of the organization headed by him, and on the other - he himself is an employee. In addition, such features as an undefined range of responsibilities and increased responsibility are highlighted. 1 Keltseva A.A. Features of the conclusion and termination of an employment agreement (contract) with the head of the organization // Legislation, 1977. -No. 4.- P.41.

The manager acts in the organizational and managerial sphere on behalf of the owner of the property; represents the employer in emerging legal relationships with employees; conducts business in the interests of the owner; organizes the labor process; solves personnel issues; at the same time, he puts his labor at the disposal of the owner of the property, i.e. is, in fact, an employee who works under an employment contract.

The manager, like any other employee, undertakes to carry out work in a certain position, i.e. perform a certain labor function, and not transfer the final result of their work to the employer. It is bound by the rules of internal labor regulations and, by virtue of its legal status, must obey the will of the employer (owner of the property of the enterprise), which excludes the autonomy of will characteristic of civil law relations. Being interconnected with entrepreneurial activity by virtue of his official position, the manager does not carry out it at his own peril and risk and does not have property independence, which is necessary in order for the relationship to be considered as civil law. The Labor Code of the Russian Federation, which entered into force on February 1, 2002, for the first time in labor law presented a normative definition of the head of an organization, thereby clearly securing the labor law nature of the head's legal status at the legislative level.

So, a manager is a special kind of employee who, in accordance with certain regulatory legal acts, is charged with the responsibility of leading the organization and performing the functions of its sole executive body. The head of an organization of any organizational and legal form and form of ownership performs executive and administrative and administrative functions, which allow him to be considered an official who is legally responsible according to the norms Russian law... In some cases, the functions of leadership can be performed on a collegial basis by members of the collegial executive body of the organization.

According to the author O.B. Zaitseva, the work of a leader decisively determines the success of a joint labor activity all employees of the organization. In this regard, the head is endowed not only with organizational, but also with entrepreneurial powers, which include: the right to independently form a production program, choose suppliers and consumers of his products, set prices for it, carry out foreign economic activity, dispose of profits, etc.

Consequently, the multifaceted labor function of a manager is diverse, and its implementation has significant legal consequences for the organization. The person who manages the organization actually controls the activities of the legal entity itself, acts in circulation on its behalf, performs the duties of the legal entity to the state, employees, counterparties and third parties.

Thus, the regulation of the labor legal status of the head of the organization must be clarified taking into account all the elements of the legal status of the subject of the labor relationship, which includes:

1) labor legal personality, due to the special legal status of this subject in the labor process;

2) the rights and obligations, the implementation of which directly follows from the implementation of the organizational and administrative and administrative and economic functions of the head as an official;

3) guarantees of the labor rights of managers as employees performing a specific labor function on the basis of an employment contract;

4) legal responsibility in all its diversity, including disciplinary, administrative, criminal and civil law for the commission of labor offenses according to the norms Russian legislation... Zaitseva O.B. On the issue of the special labor law status of the head of the organization // Russian Yearbook of Labor Law. 2007. -No. 3. -C.352.

Further concretization of the special labor law status of a manager in Russian labor legislation will primarily contribute to the normative certainty of their own actions within the framework of the functioning of labor and other relations directly related to them and at the same time have a positive effect on the exercise by them of their own labor rights provided for all employees working on the basis of an employment contract and who are subjects of an employment relationship.

1.2 Powers of the head of the organization

manager responsibility job regulation

In the employment contract with the head of the organization, his labor function should be fixed (Article 57 of the Labor Code of the Russian Federation), reflecting the specifics of his civil status as a representative of the employer and as a body of a legal entity. Goryachev A.S. Labor function of the head of the organization // Russian Yearbook of Labor Law. 2005. -No. 1. -C. 362-374. In general functional responsibilities the head of the organization are enshrined in the Qualification Handbook of the positions of managers, specialists and other employees, approved by the Resolution of the Ministry of Labor of the Russian Federation of August 21, 1998.

The head of the organization ensures the work and effective interaction of structural units, organizes the execution of tasks in accordance with the established quantitative and qualitative indicators, all obligations to state and local budgets, government and local authorities, suppliers, customers and banks, as well as production and economic activities based on the use of methods of scientifically sound planning of material, financial and labor costs; takes measures to provide the organization with qualified personnel; promotes the best use of the knowledge and experience of employees, the creation of safe and favorable conditions for their work, compliance with labor protection requirements; solves all issues within the granted rights and entrusts the implementation of certain production and economic functions to other officials - their deputies, heads of production units, as well as functional and production units organizations.

In this regard, the head of the organization must know the Constitution of Russia, the laws of the Russian Federation and regulations on the activities of the industry, documents relating to the activities of the organization; prospects for its technical, economic and social development; product manufacturing technology; the capabilities of the organization's production facilities; business and management methods; labor legislation; rules and norms of labor protection, safety, industrial sanitation and fire protection.

The range of functions of the head of a particular organization is specified in various regulatory documents: the charter of the organization, regulations on the directorate (general director).

Finally, a detailed regulation of the rights and obligations of the manager is carried out in the individual labor contract concluded with him.

The head of any organization without a power of attorney acts on behalf of the organization, represents its interests, disposes of property, concludes contracts, including labor contracts, issues powers of attorney, opens current and other accounts in banks, exercises the right to dispose of funds, approves states, issues orders and gives instructions, mandatory for all employees of the organization.

The listed general powers of the head are enshrined in the corresponding federal laws, defining the legal status of various legal entities, in particular, in paragraph 2 of Art. 69 of the Federal Law "On Joint Stock Companies", clause 3 of Art. 40 FZ "On Limited Liability Companies". Of course, the scope of authority for the heads of various organizations is not the same; it depends on the organizational and legal form and form of ownership of the legal entity.

Thus, the content of the labor function of the head of a particular organization will, to a certain extent, depend on the type of the latter.

The functions of a leader in the field of labor relations are of particular interest. In this area, the leader has the right and is obliged to:

Provide employees with work in accordance with labor contracts;

Pay wages to employees on time and in full;

Create healthy and safe working conditions, comply with the established norms and rules for labor protection, provide all workplaces with appropriate technical equipment;

Take the necessary measures to prevent industrial injuries, occupational and other diseases of employees, constantly monitor the knowledge and compliance by employees with the requirements of safety instructions, promptly and correctly conduct an investigation and record of accidents at work;

In cases stipulated by legislation and local regulations, timely provide employees with benefits and compensation in connection with harmful working conditions (shortened working hours, additional leave, therapeutic and prophylactic nutrition, etc.), comply with labor protection standards for women, youth and people with disabilities;

To represent the interests of the employer in internal and external relations;

Conclude and terminate employment contracts;

Provide employees in accordance with the adopted provisions special clothing and shoes, other personal protective equipment, organize the proper storage and care of these means;

Comply with labor legislation, conditions determined by collective agreements (agreements), other local regulations and labor contracts;

Develop and approve job descriptions and other local regulations governing the functional responsibilities of employees;

Submit labor statistics in volume and order, established by law;

Provide advanced training for employees, create the necessary conditions for combining work with training;

Suspend employees from work in cases stipulated by legislative acts;

Bring employees to financial responsibility for damage caused by illegal actions or inaction in the performance of their labor duties;

Perform other obligations arising from legislation, local regulations and an employment contract concluded with him;

Observe commercial and other secrets protected by law Goryachev A.S. Labor function of the head of the organization // Russian Yearbook of Labor Law.-2005.-№ 1.-С.362-374 ..

Thus, the functions of the head as a governing body of a legal entity are determined not only by civil, but also by labor law.

1.3 Legal basis labor regulation of the head of the organization

Features of labor regulation of the head of the organization are determined by Chapter 43 of the Labor Code of the Russian Federation. The need for additional labor regulation of the head of the organization is explained by his unusual dual status - as a management body and as an employee.

Taking into account the complexity of the legal regulation of the work of a manager and the existence of conflicts between civil and labor norms, the issue of the correct differentiation of labor and civil contracts seems, in our opinion, extremely important. The practical problem is that there are often cases of concluding so-called "labor agreements" with the manager, and the need to differentiate contracts arises when resolving disputes between an employee and an employer or between an employer and government bodies.

Thus, the most acceptable today, taking into account, first of all, the features of the legal regulation of the work of the head of the organization, is the position that the emerging relationship between a legal entity or an owner property-organization with the head of the organization are of a labor nature.

This position is confirmed by the following arguments;

1. The Labor Code of the Russian Federation calls the leadership of the organization as a labor function of the head, including the performance of the function of its sole executive body. The fact that the duties of a manager are the implementation of the legal personality of a legal entity in civil circulation testifies to the performance of a specific labor function, which is different from the labor function of an ordinary employee. , but also civil legislation,

2. The head of the organization, like any other employee, undertakes to personally perform the labor function, i.e. independently carry out work in a certain position.

3. The employer (as a rule, the owner of the property), for its part, undertakes to provide the employee-manager with the working conditions stipulated by the labor legislation, collective agreement, agreement, labor contract In fulfilling its responsibilities for the organization of working conditions, the employer reduces the degree of organizational independence of the work of the head of the organization.

4. Improper performance by the head of duties under an employment contract, violation of labor discipline or damage to the property of the organization may entail the responsibility of the head, like any other employee, according to labor law.

5. The manager is included in the payroll of the organization, holds a position according to the staffing table, obeys the internal labor schedule.

6.For non-performance or improper performance duties established by the employment contract, the head of the organization bears the responsibility provided for by labor legislation.

7. The degree of the manager's property and organizational independence depends on the discretion of the owners of the organization's property, as well as on legislative restrictions.

Thus, despite the great influence of civil law norms in the regulation of labor of such a category of workers, relations with regard to the work of a manager remain by their nature labor law.

As noted above, the Labor Code of the Russian Federation for the first time, in contrast to the Labor Code, provided for in a separate chapter the features of the legal regulation of the work of the head of the organization. At the same time, Article 251 of the Labor Code of the Russian Federation provided for what is meant by the peculiarities of labor regulation, indicating that these are “norms that partially restrict the use of general rules on the same issues, or providing for certain categories of workers additional rules". Thus, this concept legally enshrined in the Labor Code of the Russian Federation indicates that the features are expressed in special norms of labor law, in contrast to general norms. According to Associate Professor A.A. Fadeeva, "the peculiarities of the labor contract are a complex of special norms reflecting the differentiation of legal regulation of labor of certain categories of workers." Fadeev A.A. Features of the employment contract with the head of the organization // Citizen and Law. 2003.- No. 4.- P.110

Special norms in their content can be of three types: "norms-benefits, norms-exceptions (restricting rights against general ones) and norms-adaptation", adapting norms to working conditions in a given industry (sectoral differentiation). Gusov K.N., Tolkunova V.N. Labor law of Russia. M .: Jurist. -2001.- P.24 According to A.A. Fadeev, this is a more accurate indication of the types of special rules than in Article 251 of the Labor Code of the Russian Federation these are the words "additional rules", since such rules can be different types... Fadeev A.A. Features of the employment contract with the head of the organization // Citizen and Law. 2003.- No. 4. -С.110 Article 252 of the Labor Code of the Russian Federation provides that the specifics of labor regulation of certain categories of workers are established by labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations. At the same time, the features of labor regulation, entailing a decrease in the level of guarantees for employees, a restriction of their rights, an increase in their disciplinary and (or) material responsibility, can be established exclusively by the Labor Code of the Russian Federation or in the cases and in the manner provided for by it.

Thus, the norms of Section XII of the Labor Code of the Russian Federation "Features of labor regulation of certain categories of workers", and in particular the norms of Chapter 43 of the Labor Code of the Russian Federation "Features of labor regulation of the head of an organization and members of a collegial executive body" are a manifestation of the differentiation of legal regulation as one of the main methods of labor law. Differentiation in broad sense represents a difference in the legal regulation of labor according to certain factors (criteria), which include: special working conditions, natural and climatic conditions, subject grounds, specificity labor relations, features of labor in a particular industry. Kolobov SV. labor law of Russia: textbook. manual for universities. M .: ZAO Yusticinform, -2005 .-. P.357-361. In our opinion, the main criteria for differentiating the legal regulation of the work of the head of an organization are the nature of the work and the special legal status of the given subject.

These norms were developed, first of all, in order to separate categories workers could exercise their rights on an equal basis with others. In this regard, it is necessary to consolidate the differentiation of labor as a principle of labor law in Article 2 of the Labor Code of the Russian Federation as a fundamental provision that the work of certain categories of workers needs additional legal regulation and the establishment of additional legal guarantees, with the help of which it seems possible to take into account as objective the quality of the work performed, the specifics and working conditions, and the subjective characteristics of workers. At the same time, one of the processes that allow maintaining the balance of unity and differentiation is unification legal regulations, i.e. elimination of unjustified differences in labor regulation, elimination of unjustified or outdated grounds for differentiation.

There are some restrictions for the leaders of organizations. So, Art. 276 of the Labor Code of the Russian Federation allows external combination only with the permission of the authorized body of the legal entity, or the owner of the property of the organization or the person (body) authorized by the owner. This limitation is intended to discourage the competing activities of the manager. The head of a unitary enterprise does not have the right to be a founder (participant) of a legal entity, hold positions and engage in other paid activities in state bodies, local governments, commercial and non-profit organizations, except for teaching, scientific and other creative activities, engage in entrepreneurial activity, be the sole executive body or a member of a collegial executive body commercial organization, except in cases where participation in the bodies of a commercial organization is included in job duties this head, as well as take part in strikes (clause 2 of article 21 of the Federal Law "On state and municipal unitary enterprises" Federal Law of the Russian Federation "On state and municipal enterprises" dated November 14, 2002 No. 161-FZ // Rossiyskaya Gazeta.- 2002. -№229.).

In order to prevent abuse of position, managers are also prohibited from being part of the bodies exercising oversight and control functions in the organization.

Author A.A. Kurushin also notes some of the features of the legal regulation of the working time and rest time of the leaders of organizations. Managers belong to the category of workers who are assigned a work schedule with irregular working hours, allowing occasional overtime in excess of the statutory working hours. This specific condition of the employment contract is due to the fact that the work of managers cannot be tracked in time, and they themselves allocate time for work at their own discretion.

The traditional way of compensating for irregular working hours is an additional vacation of at least three calendar days, which is summed up with the main one (Article 119 of the Labor Code of the Russian Federation). The specific duration of the vacation may depend on the degree of work intensity, labor intensity, manager's responsibility, frequency and duration of overtime. Condition about additional leave should be stipulated in the employment contract with the manager.

The leave can be provided either in full or in parts. The time of its use is not established by the traditional vacation schedule, but is determined by the head himself in agreement with the relevant management body of the organization, which has concluded an agreement on behalf of the employer. A.A. Kurushin On the issue of the peculiarities of the legal regulation of the labor of managers - the only founders of organizations. // Lawyer. - 2011. No. 1.-С. 31-36

1.4 Features of the grounds for the emergence and termination of labor legal relations with the head of organizations

Labor relations - relations based on an agreement between the employee and the employer on the employee's personal performance for a fee of the labor function (work according to the position in accordance with the staffing table, profession, specialty indicating qualifications; the specific type of work entrusted to the employee), the employee's submission to the internal labor regulations when the employer provides the working conditions stipulated by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract (Article 15 of the Labor Code of the Russian Federation).

In accordance with paragraph 2 of Article 16 of the Labor Code of the Russian Federation, in cases and in the manner established by labor legislation and other regulations containing labor law norms, or the charter (regulation) of an organization, labor relations arise on the basis of an employment contract as a result of:

Election to office;

Election by competition to fill the relevant position;

Appointments or approvals.

Consider the features of these grounds for the emergence of labor relations with the head.

In accordance with article 17 of the Labor Code of the Russian Federation, labor relations on the basis of an employment contract as a result of election (elections) to a position arise if the election to a position involves the performance of a certain labor function by an employee. A distinctive feature of the election is the absence of subordination relations between the employee and the body that elected him to the position, or the weakening of such relations.

A feature of the rules of Article 17 of the Labor Code of the Russian Federation is that they are subject to application only to the extent that labor relations arise:

a) on the basis of such an employment contract, which is concluded as a result of the election (election) to the position.

b) on the basis of such an employment contract, the conclusion of which based on the results of the election (election) is provided for in separate federal laws. So, one should agree with the opinion of Yu.A. Mikhailenko, if the decision general meeting the election of shareholders will subsequently be declared invalid, then there is a lack of the composition necessary for the emergence of an employment relationship with the head of the joint-stock company. The concluded employment contract must also be invalidated on the basis that a proper employment relationship arises only upon the election of a manager. Mikhailenko Yu.A. Labor relations of the head of a joint-stock company. Perm :, 2001.- P.11.

The provisions of Article 17 of the Labor Code of the Russian Federation assume the presence prerequisite- fulfillment of a certain labor function by the elected employee. So, according to O.M. Krapivin, if a person is elected to a position that involves the performance of different and unsystematic duties (from case to case), then such persons are not meant in Article 17 of the Labor Code of the Russian Federation. Krapivin O.M. Labor contract: system of guarantees. M.:, 2005.-125s.

For the correct application of Article 17 of the Labor Code of the Russian Federation, you must also take into account that:

1) election to a position in itself does not mean that an employment contract has been concluded: it has not yet been concluded, although a basis has arisen, a necessary prerequisite for its conclusion;

the results of the election (elections) to the position must be properly formalized (for example, in the form of a decision on election, an extract from such a decision, etc.);

to conclude an employment contract (based on the election results), the person writes a statement, and the employer issues an order, in addition, the text of the employment contract is drawn up in writing signed by both parties.

In accordance with Article 18 of the Labor Code of the Russian Federation, labor relations on the basis of an employment contract as a result of being elected through a competition to fill the relevant position arise if labor legislation and other regulatory legal acts containing labor law norms, or the charter (regulation) of the organization defines a list of positions to be filled by competition, and the procedure for competitive selection for these positions.

Substitution of a position based on competitive selection is a complex legal structure consisting of two legal facts. First, it is the competition itself, which itself has a complex structure and includes several factual circumstances. Secondly, it is an employment contract concluded on the basis of the results of a competition. The competition includes such facts as preconditions: the presence of a vacant (vacant) position or a position whose term of office expires; decision to hold a tender; formation of the competition commission.

Analysis of the rules of Article 18 of the Labor Code of the Russian Federation allows us to draw a number of conclusions:

1) they are devoted to a special basis for the emergence of an employment relationship, namely an employment contract, which is concluded as a result of election by competition;

2) election by competition can take place only to the extent that it is provided for:

a) the norms of the law (including the laws of the constituent entities of the Russian Federation). For example, the selection by competition of officials related to civil servants;

b) the charter (statute), other constituent documents of the organization. So, for example, a large joint-stock company may approve (if it is provided for in the Articles of Association of the joint-stock company) a list of positions to be replaced by competition and the procedure for election to these positions;

c) other regulatory legal acts (for example, the Regulation on holding a competition for filling the position of the head of a federal state unitary enterprise, approved by the Decree of the Government of the Russian Federation. of legislation. March 27, 2000. -No.13.-Art.1373.).

The federal executive body authorized to appoint the head of a federal state unitary enterprise to the position, conclude, amend and terminate an employment contract with him in accordance with the established procedure:

a) form a commission for holding the competition and approve its composition;

b) organizes the publication of an information message prepared by the commission about the competition;

c) accepts applications from applicants and keeps records of them;

d) transfers to the commission at the end of the admission period the received applications with the documents attached to them;

e) approves the list of questions for testing applicants.

The commission consists of the chairman, deputy chairman, secretary and members of the commission.

The commission may include, with a decisive vote, the plenipotentiary representative of the President of the Russian Federation in Federal District, on the territory of which the federal state unitary enterprise is located. When considering a candidate for the post of head of a federal state unitary enterprise of the military-industrial complex, a representative of the Ministry of Defense of the Russian Federation is also included in the commission with a decisive vote. The composition of the commission, the terms and procedure for its work are approved by the head of the federal executive body. The decisions of the commission are adopted by a majority of votes of the members of the commission with a decisive vote present at the meeting. The Commission is authorized to resolve issues within its competence if at least half of its members with the right to vote are present at the meeting. In case of equality of votes, a decision is made, for which the chairman of the meeting voted.

The decisions of the commission are drawn up in minutes, which are signed by the members of the commission present at the meeting, who have the right to a casting vote. When signing the minutes, the opinion of the members of the commission is expressed by the words "for" or "against".

An information message about the competition must be published no later than 30 days before the announced date of the competition. This message should include:

a) the name, main characteristics and information about the location of the enterprise;

b) the requirements for the applicant for the position of the head of the enterprise;

c) the date and time (hour, minutes) of the beginning and the end of accepting applications with the documents attached to them;

d) the address of the place for receiving applications and documents;

e) a list of documents submitted by applicants for participation in the competition, and the requirements for their registration;

f) the date, time and place of the competition, indicating the time, the works of the competition commission and summing up the results of the competition were downloaded:

g) phone numbers and location of the commission;

h) the address at which applicants can familiarize themselves with other information, and the procedure for familiarizing themselves with this information:

i) the procedure for determining the winner;

j) the method of notifying the participants of the competition and its winner about the results of the competition;

k) other provisions containing requirements for applicants provided for by the legislation of the Russian Federation;

d) the main conditions of the employment contract.

From the moment of the start of accepting applications, the commission provides each applicant with the opportunity to familiarize himself with the terms of the employment contract, general information and the main indicators of the enterprise.

Individuals who have higher education, work experience in the field of enterprise activity, work experience at leadership position, as a rule, at least a year, and meeting the requirements for the candidacy of the head of the enterprise,

To participate in the competition, applicants submit the following documents to the commission within the prescribed period:

a) application, personnel record sheet, photograph;

b) copies of the work record book and education documents of the state standard certified in the prescribed manner;

c) proposals for the program of activities of the enterprise (in a sealed envelope);

d) other documents provided for in the information message .. The applicant is not allowed to participate in the competition if:

a) the submitted documents do not confirm the applicant's right to hold the position of the head of the enterprise in accordance with the legislation of the Russian Federation and this Regulation;

b) not all documents are submitted according to the list specified in the information message, or they are not properly executed, or do not comply with the terms of the competition or the requirements of the legislation of the Russian Federation.

The competition is held in two stages. The first stage is carried out in the form of test trials (in writing). The commission draws up a list of questions for testing applicants, and also approves the maximum number (or percentage) of incorrect answers. The number of incorrect answers cannot be more than 25 percent. The list of questions should be made publicly available.

At the second stage, proposals are considered for the program of the enterprise's activities. The commission opens the sealed envelopes and determines the best program activities of the enterprise from among those proposed by the participants in the competition.

The winner of the competition is a participant who has successfully passed the tests and who, in the opinion of the commission, proposed the best program of the enterprise's activities. Resolution of the Government of the Russian Federation "On approval of the Regulations for holding a competition for the position of head of FSUE" dated March 16, 2000 No. 234 // Collected Legislation. March 27. 2000. -No.13.-Art.1373

The federal executive body, in accordance with the established procedure, concludes an employment contract with the winner within one month from the date of the determination of the winner of the competition.

Concluding the analysis of Article 18 of the Labor Code of the Russian Federation, it must also be said that:

1) the provision of laws, other normative acts (including those mentioned above) - is subject to application only to the extent that they do not contradict the Labor Code of the Russian Federation;

2) the procedure for holding a tender provided for in Articles 1057-1061 of the Civil Code of the Russian Federation - cannot be used to conclude an employment contract, and is not the basis for the emergence of an employment relationship. Guev A.N. Commentary on the Labor Code of the Russian Federation. M .: Delo, -2003. -WITH. 198

In accordance with Article 19 of the Labor Code of the Russian Federation, labor relations arise on the basis of an employment contract as a result of appointment to a position or approval in a position in cases stipulated by labor legislation and other regulatory legal acts containing labor law norms, or the charter (statute) of the organization. The analyzed article is devoted to an independent basis for the emergence of labor relations, namely, an employment contract, which is concluded as a result of:

1) appointment to the position. Most often this happens in state bodies, in local self-government bodies (when the head, endowed with the appropriate powers, appoints an official). Appointment to a position takes place only by decision of a higher authority that has power:

2) approval in office. In this case, the employee has already been performing his job duties for some time (since the manager who allowed him to work does not have the proper authority), and only then he is approved (for example, by a higher manager) in the position (that is, a corresponding order is issued). The scope of application of this actual composition is cases when the consent of a higher authority in the order of subordination to occupy the relevant position is required. At the same time, the choice of a candidate and the occupation of the specified position is carried out not by this body, but by another, in fact, subordinate.

The procedure for appointing or electing a body of a legal entity, as well as election by competition, is determined by law and constituent documents, the procedure for its activities - by law, other legal acts and constituent documents. These procedures may differ depending on the organizational and legal form of a legal entity at the discretion of its owner, founders, participants. Dolinskaya V.V. Civil law problems of the status of the head of the organization // Zakon. 2004. -№1. -WITH. 5

In his work, the author G.Yu. Korshunova notes that the termination of labor relations with the head of the organization has significant features due to the fact that the head, in accordance with the labor contract concluded with him, performs a special labor function.

Chapter 43 of the Labor Code of the Russian Federation, in addition to general provisions on the termination of labor relations, also fixes the peculiarities of termination of relations with the head of the organization, namely, provides additional grounds for terminating the employment contract with the head of the organization. This rule is due to the differentiation of legal regulation of labor relations with the head of the organization.

All grounds for termination of labor relations with the head of the organization can be classified into two groups:

general grounds (articles 77, 81 (except for clauses 9, 10, 13), articles 83.84 of the Labor Code of the Russian Federation), which are provided for all categories of employees, including the head of the organization;

special grounds (article 75, clauses 9, 10, 13, article 81, articles 278-280 of the Labor Code of the Russian Federation), which are established only for the head of the organization.

1.1 Specificity of the employment status of the head of the organization

The Labor Code of the Russian Federation defines the head of an organization as an individual who, in accordance with the law and other regulatory legal acts, the constituent documents of the organization and local regulations, manages this organization, including performing the functions of its sole executive body (Article 273 of the Labor Code of the Russian Federation).

There is a point of view according to which the employer for the head of an organization is the body that appoints this head (a state body or local self-government body - for the heads of a state or municipal enterprise, participants or founders, members of organizations, a board of directors - for heads of commercial and non-profit organizations). Ershov V.V., Ershova E.A. Labor contract. M., 2000.-S. 84-86. This approach does not seem entirely correct. Bodies authorized to appoint (elect) a manager to a position conclude an employment contract with him as a representative of the employer, and not the employer himself. The employer is the organization headed by the manager as an employee. Part 3 of Art. 20 of the Labor Code of the Russian Federation, which establishes that the employer is a legal entity, and its rights and obligations in labor relations are exercised by the management bodies of the organization or by persons authorized by them.

According to the author E.V. Bogdanov, it is the legal entity that provides the job (the position of the head, along with others, is included in the organization's staffing table), exercises the rights and bears obligations to its employees, regardless of who hires (appoints) the employee ... The responsibilities of the organization as an employer are expressed, in particular, in the creation of proper working conditions, payment of remuneration for work, provision of social guarantees and benefits. Salaries are paid from the funds of this legal entity. In the event of a labor dispute, the defendant in court will be the legal entity, and not the body that made the decision on the appointment to the position. Consequently, it must be recognized that the organization itself acts as a legal entity as an employer in relation to a manager (like any other employee). But on her behalf, in this case, not the head will act (as is usually the case when concluding an employment contract), but the body (person) authorized to elect (appoint) a head, since the head himself in this situation cannot realize the legal personality of a legal entity. Bogdanov E.V. Legal status of the body of a legal entity // Journal of Russian Law.-2001.- No. 3.-С.108-113

On the basis of the decision of the authorized body, an employment relationship arises between the head and the organization headed by him. This is confirmed by the norms of civil legislation, for example, in particular, paragraph 3 of Art. 69 FZ "On Joint Stock Companies" Federal Law of the Russian Federation "On Joint Stock Companies" dated December 26, 1995. No. 208-FZ. // Collected Legislation of the Russian Federation. -1996.- No. 1.- Art. 1. and Clause 1 of Article 40 of the Federal Law "On Limited Liability Companies" Federal Law of the Russian Federation "On Limited Liability Companies" dated February 8, 1998. No. 14-FZ // Collected Legislation of the Russian Federation. - 1998. - No. 7. - Article 785, establishing that the sole executive body of the company concludes an agreement with the company, which is signed on behalf of the company. Consequently, such an agreement engenders a relationship between the manager and the legal entity itself.

On behalf of the employer, various bodies specified in the legislation and constituent documents of legal entities can act. Thus, the conclusion, amendment and termination of employment contracts with the heads of federal state unitary enterprises are carried out by federal executive bodies exercising the powers of the owner in relation to federal property transferred to the federal state unitary enterprise. These may be the relevant federal ministries, and in relation to enterprises included in the privatization program, the Federal Agency for Federal Property Management. At the regional level, the appointment of the heads of state institutions can be entrusted to the heads of the executive bodies of state power (regional, territorial, republican). With the heads of municipal enterprises, an employment contract on behalf of the owner is concluded by the heads of local (municipal) governing bodies, as a rule, the head of the administration (city, district) or special governing bodies authorized by him (committees for the management of municipal property). The heads of joint stock companies are appointed (elected) by general meetings of shareholders or by boards of directors (supervisory boards). The heads of limited liability companies are elected by the general meeting of the members of the company.

In state or municipal educational institutions, the head can be elected by the collective of the educational institution, elected by the collective upon preliminary agreement of the candidacy with the founder, elected by the collective with subsequent approval by the founder, appointed or hired by the founder (clause 4 of article 35 of the Law of the Russian Federation of July 10, 1992 No. 3266-1 "On Education" as amended by the Federal Law of January 13, 1996, No. 12-FZ Federal Law of the Russian Federation "On Education" of July 10, 1992. No. 3266-1-FZ. // Collected Legislation of the Russian Federation.-1996.- No. 3.-Art.150.).

The concept of an official is always inextricably linked with the concept of a position, although it is not equivalent to it. The norms of Art. 15 and 57 of the Labor Code of the Russian Federation connect the concept of a labor function with the performance of work according to the position in accordance with the staffing table, profession, specialty with an indication of qualifications or a specific type of work performed. Power powers are manifested in the labor function of an official. Here is what D. N. Bakhrakh writes on this issue: “The authoritative powers of the subjects of management are varied, most often they include the rights to:

1) implementation of regulatory guidance;

2) implementation of methodological guidance;

3) the distribution of specific tasks;

4) solution of structural issues;

5) solution of personnel issues;

6) direct management of production activities;

7) disposal of material and non-material resources;

8) encouragement;

9) implementation of control;

10) application of compulsory measures to subordinates;

11) the application of compulsory measures within the framework of off-duty subordination ”. Bakhrakh D.N. Basic concepts of the theory of social management. Perm, 1978.- p. 54

The emergence of norms specifically regulating the labor relations of the head is an undoubted merit of the Labor Code of the Russian Federation. This to some extent resolved the problems associated with the uncertainty of the legal status of the head, since in the 1990s. were extremely topical issues related to the relationship between the organization and its leader. In particular, in the legal literature there have been disputes over what kind of relationship arises between the head and the organization itself as an employer: labor or civil? The answer to this question made it possible to clearly define the type of legal personality (labor or civil) that the head of the organization possesses. A.A. Kel'tseva, examining the legal status of a manager, representing his qualitative legal characteristics as a subject of law, emphasizes the main difference between the legal status of a manager, which is that, on the one hand, he represents the interests of the owner and performs the functions of an employer in relation to others. employees of the organization headed by him, and on the other - he himself is an employee. In addition, such features as an undefined range of responsibilities and increased responsibility are highlighted. 1 Keltseva A.A. Features of the conclusion and termination of an employment agreement (contract) with the head of the organization // Legislation, 1977. -No. 4.- P.41.

So, a manager is a special kind of employee who, in accordance with certain regulatory legal acts, is charged with the responsibility of leading the organization and performing the functions of its sole executive body. The head of an organization of any organizational and legal form and form of ownership performs executive-administrative and administrative-economic functions, which allow him to be considered an official who is legally responsible according to the norms of Russian law. In some cases, the functions of leadership can be performed on a collegial basis by members of the collegial executive body of the organization.

According to the author OB Zaitseva, the work of a manager to a decisive extent determines the success of the joint work of all employees of the organization. In this regard, the head is endowed not only with organizational, but also with entrepreneurial powers, which include: the right to independently form a production program, choose suppliers and consumers of their products, set prices for them, carry out foreign economic activity, dispose of profits, etc.

1) labor legal personality, due to the special legal status of this subject in the labor process;

3) guarantees of the labor rights of managers as employees performing a specific labor function on the basis of an employment contract;

4) legal responsibility in all its diversity, including disciplinary, administrative, criminal and civil law for the commission of labor offenses in accordance with the norms of Russian law. Zaitseva O.B. On the issue of the special labor law status of the head of the organization // Russian Yearbook of Labor Law. 2007. -No. 3. -C.352.

Further concretization of the special labor law status of a manager in Russian labor legislation will primarily contribute to the normative certainty of their own actions within the framework of the functioning of labor and other relations directly related to them and, at the same time, have a positive effect on the exercise of their own labor rights provided for all employees working on the basis of labor contracts and are subjects of the employment relationship.

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At present, the labor market is very seriously concerned with the question of attracting competent, educated and experienced managers (managers). After all, the success of any organization, regardless of its organizational and legal form, in many situations depends on who directs it, or, in other words, on the CEO.

In the context of a variety of forms of ownership, the manager ceases to be the only real owner in the organization, at the enterprise.

The leader is usually ordinary hired worker, who is invited to a leading position as a manager (manager) for effective implementation management functions as directed by the owner. Ownership and management are separated and senior managers are appointed to represent the interests of the owner.

Of course, the head of each individual organization has a very specific specifics of activities, which can and should be defined in a special agreement concluded between the owner or his representative and the manager. Such a special contract is the employment contract, which the employer should use to attract managers - capable, competent, and personally interested in effective work the organization entrusted to them.

The system of remuneration, social insurance and various benefits, fixed in labor contracts, makes it possible to secure such specialists in the highest echelons of management. An employment contract is able to reflect the peculiarities of the position of the head in organizations of various organizational and legal forms and various sectors of the economy.

Of course, the work of a leader has its own specifics. The head, regardless of the organizational and legal form of the organization, is the sole executive body of the organization and independently solves all issues of the organization's activities, with the exception of issues attributed by the legislation of the Russian Federation to the jurisdiction of other bodies. The head is de facto and de jure entrusted with all the secrets of the organization, he alone manages the property of the organization, enters into labor relations with other employees on behalf of the organization.

There is no doubt that the work of a leader, such labor relations, require special regulation, which would take into account not only the role of the head of the organization, his job function, but also all possible forms of organizations.

Let's try to figure out what are the features of the legal status of the head of an organization as a party to an employment contract in labor relations.

ESTABLISHMENT OF LEGAL RELATIONS WITH THE HEAD OF THE ORGANIZATION

To begin with, let us define that in the most general form, the legal status of an employee in labor relations (labor law status) is considered in unity the totality of his labor rights and obligations, as well as legal responsibility established by the Labor Code of the Russian Federation, federal laws, and other regulations of the Russian Federation, constitutions (charters), laws and other normative acts of the constituent entities of the Russian Federation, acts of local self-government bodies, local normative acts of the employer, collective agreement (agreement) and labor contract.

As you know, a legal entity is an organization that owns, operates economically or operational management separate property, responsible for its obligations with this property, capable of acquiring and exercising property and personal non-property rights on its own behalf, bear obligations, be a plaintiff and defendant in court (Article 48 of the Civil Code of the Russian Federation).

The concept of "organization" is a concept that includes all types of legal entities, regardless of their organizational and legal form and form of ownership (open and closed joint stock companies, limited or additional liability companies, institutions, unitary enterprises, consumer cooperatives, associations, foundations and etc.).

As follows from the content of Art. 53 of the Civil Code of the Russian Federation, a legal entity acquires civil rights and assumes civil obligations through its bodies acting in accordance with the law, other legal acts and constituent documents, the procedure for the appointment or election of which is determined by law and constituent documents. However, in cases stipulated by law, a legal entity can acquire civil rights and assume civil obligations through its members. These legal entities, in particular, include a general partnership and limited partnership (Articles 69–81 and 82–86 of the Civil Code of the Russian Federation), the management of which is carried out by the participants of these organizations themselves.

Meanwhile, a legal entity (organization) in the course of its activities acts not only as a participant in civil law relations, but is also a party to other relations arising both on the basis of an agreement between the parties (for example, labor relations) and on the authority's subordination to the other party (for example , tax and other financial relations). And in these cases, the organization also acquires the corresponding rights and assumes the corresponding responsibilities through its bodies or authorized persons.

So, in particular, according to Art. 20 of the Labor Code of the Russian Federation, the rights and obligations of the employing organization in labor relations are exercised by its management bodies or persons authorized by them in the manner prescribed by laws, other regulations, constituent documents and local regulations; legal representatives of a taxpaying organization are recognized as persons authorized to represent the said organization on the basis of the law or its constituent documents (clause 1 of article 27 of the Tax Code of the Russian Federation).

Let's pay attention to one more provision of the above-mentioned Art. 53 of the Civil Code of the Russian Federation: a person who, by virtue of the law or constituent documents, acts on behalf of a legal entity must act in its interests in good faith and reasonably, ensuring by all available legal means the achievement of its goals and the protection of its interests. Among other things, this also means that the body of a legal entity or a person acting on its behalf cannot go beyond the powers granted to them.

For the overwhelming majority of types of organizations (meaning various organizational and legal forms of legal entities), the heads of organizations, no matter how they are called, are the bodies (persons) that, by concluding an employment contract, act on behalf of these organizations and implement in the process of organizations, their rights and obligations.

At the same time, the heads of specific organizations can be named in different ways, which is predetermined by both the requirement of the relevant law and the constituent documents of the organization itself. So, in non-profit organization, which can be created in the organizational and legal form provided for by the law, the current management of its activities is carried out by an executive body - collegial and (or) sole proprietor (Article 30 of the Federal Law of January 12, 1996 No. 7-FZ "On Non-Commercial Organizations". this, the specific name of the sole executive body of a non-profit organization is fixed in its constituent documents.

The same approach to establishing the name of the position of the head of an organization is used by the legal entities listed in the table below.

Entity	Job title	the federal law
Limited liability company	General manager The president Another name	Article 40 of the Federal Law of February 8, 1998 No. 14-FZ "On Limited Liability Companies"
Joint-stock company	Director General manager
Joint Stock Company of Workers (People's Enterprise)	General manager	Article 13 of the Federal Law of July 19, 1998 No. 115-FZ "On the specifics of the legal status of joint-stock companies of workers (people's enterprises)"
Unitary enterprise	Director General manager	Article 21 of the Federal Law of November 14, 2002 No. 161-FZ "On State and Municipal Unitary Enterprises"
Consumer society	Chairman of the Board of the Consumer Society	Article 15 of the Law of the Russian Federation of June 19, 1992 No. 3085-I "On consumer cooperation ( consumer societies and their unions) in the Russian Federation "
Production and agricultural cooperative	Cooperative chairman	Article 17 of the Federal Law of May 8, 1996 No. 41-FZ "On production cooperatives" Article 19 of the Federal Law of December 8, 1995 No. 193-FZ "On Agricultural Cooperation"
Higher educational institution		Article 12 of the Federal Law of August 22, 1996 No. 125-FZ "On Higher and Postgraduate Professional Education"

That is why in Art. 273 of the Labor Code of the Russian Federation given general definition the head of an organization as an individual who, in accordance with the law or the constituent documents of the organization, manages this organization, including performing the functions of its sole executive body, regardless of its organizational and legal form and form of ownership.

It follows from this that the head of an organization is an employee who is in labor relations with the organization headed by him and who, according to the concluded labor contract, performs a specific labor function - the implementation of the competence of this organization in the course of its current activities.

In fact, it is precisely this specificity of the labor function of the head of the organization that predetermined the peculiarities of his legal status in comparison with other employees.

SPECIFIC FEATURES OF CONCLUDING AN EMPLOYMENT CONTRACT WITH THE HEAD OF THE ORGANIZATION

The specifics of concluding an employment contract with the head of the organization are enshrined in Ch. 43 of the Labor Code of the Russian Federation "Features of labor regulation of the head of the organization and members of the collegial executive body of organizations", also in special legislative acts establishing the specifics of the formation of executive bodies.

The provisions of this chapter apply to the heads of organizations, regardless of their organizational and legal forms and forms of ownership, with the exception of those cases when:

The head of the organization is sole participant(founder), member of the organization, owner of its property;

· The management of the organization is carried out under a contract with another organization (management organization) or an individual entrepreneur (manager).

In the first case, labor relations do not arise, since the head of the organization is its own owner; in the second case, a civil contract is concluded between the parties, which also excludes labor relations.

The peculiarities of concluding an employment contract with the head of the organization can be extended to members of the collegial executive body of the organization (for example, the directorate of an LLC, the board of a cooperative, etc.). In this case, the deputy heads (who are part of such a body) are subject to the rules of Art. 273-280 of the Labor Code of the Russian Federation. Features cannot be extended to members of the board of directors, supervisory board and other bodies of organizations that are not related to the executive bodies of the organization; also do not apply to chief accountants of organizations, to founders (participants) of organizations who are not the heads of the latter.

Among the special legislative acts that enshrine the features of concluding an employment contract, it is necessary to highlight:

· Federal Law No. 161-FZ of November 14, 2002 "On State and Municipal Unitary Enterprises", as well as Resolution of the Government of the Russian Federation of March 16, 2000 No. 234 "On the Procedure for Concluding Labor Contracts and Certification of Heads of Federal State Unitary Enterprises";

· Federal Law of February 8, 1998 No. 14-FZ "On Limited Liability Companies";

· Federal Law of August 22, 1996 No. 125-FZ "On Higher and Postgraduate Professional Education";

The norms of special acts in terms of regulating the work of a manager take precedence over the general rules of labor legislation. So, according to par. 3 p. 3 art. 69 of the Federal Law "On Joint Stock Companies" on the relationship between a joint stock company and the sole executive body of the company (director, general director) and (or) members of the collegial executive body of the company (board, directorate), the effect of the legislation of the Russian Federation on labor applies to the extent that it does not contradict the provisions of the specified Federal Law.

In accordance with Art. 275 of the Labor Code of the Russian Federation, laws, other regulatory legal acts or the constituent documents of the organization may establish procedures preceding the conclusion of an employment contract with the head of the organization (holding a competition, election or appointment to a position, etc.).

In joint stock companies, the general director is elected at the general meeting of shareholders. In addition, the head can be elected or appointed by the board of directors, if this is provided for by the charter of the organization. In any case, an employment contract with the general director is signed by the chairman of the board of directors or another person authorized by the board of directors (Article 69 of the Federal Law “On Joint Stock Companies”).

In limited liability companies, the general director is elected at a general meeting of participants or at a meeting of the board of directors. And an employment contract with him is concluded by the chairman of the general meeting or a member of the company authorized by the decision of the general meeting (Article 40 of the Federal Law "On Limited Liability Companies").

According to the decree of the Government of the Russian Federation of March 16, 2000 No. 234, a competition is held in state and municipal enterprises to fill the position of the head of a federal state unitary enterprise. There are special narrow-branch acts for holding a competition and appointing heads of unitary enterprises:

· Order of the Federal Tax Service dated June 7, 2005 No. SAE-3-15 / [email protected]“On the Commission for Holding a Competition for the Filling of a Position and Certification of the Heads of Federal State Unitary Enterprises Subordinated to the Federal Tax Service”;

· Order of the Ministry of Atomic Energy of the Russian Federation of May 14, 2003 No. 218 "On the procedure for holding a competition for filling the position of the head of a federal state unitary enterprise";

· Order of the Ministry of Agriculture of the Russian Federation of December 27, 2000 No. 1075 "On approval of the Procedure for holding a competition for the position of the head of a federal state unitary enterprise and the Procedure for conducting certification of heads of federal state unitary enterprises."

Election, appointment, approval of an individual as the head of an organization are carried out by an authorized body.

The right to conclude contracts with heads of federal state unitary enterprises was granted federal authorities executive power in agreement with the Ministry of State Property of the Russian Federation (clause 1 of the Decree of the Government of the Russian Federation of March 16, 2000 No. 234 "On the procedure for concluding contracts and certification of heads of federal state unitary enterprises").

With regard to unitary enterprises, by order of the Ministry of Economic Development of the Russian Federation of March 2, 2005 No. 49, a Model Labor Agreement with the head of a federal state unitary enterprise was approved, which replaced numerous departmental standard forms.

Thus, it is necessary to focus on the fact that, depending on the organizational and legal form of the organization, appropriate procedures can be established prior to the conclusion of an employment contract with the head of the organization. In this case, other procedures may also take place, unless this contradicts the fundamental rights of workers.

An employment contract with the head of the organization is concluded for a period established by the constituent documents of the organization or by agreement of the parties (Article 275 of the Labor Code of the Russian Federation).

The legal meaning of an employment contractWITH THE HEAD OF THE ORGANIZATION

As the analysis of the current labor legislation in terms of regulating the rights and obligations of the head of the organization shows, the Labor Code of the Russian Federation and special legislative acts do not contain an extended list of the rights and obligations of the head of the organization, leaving this field for regulation within the framework of the employment contract, i.e. the parties to specific labor relations must independently regulate the content of the legal status of the head of the organization.

In ordinary labor relations (relations between an employer and an ordinary employee-employee), an employment contract acts as a regulator, but at the same time, regardless of whether the rights and obligations of the parties are included there, the norms of Art. 21 and 22 of the Labor Code of the Russian Federation.

Within the framework of the employer-employee-manager relationship, the employment contract is the concentration of the employee's rights and obligations, which is what manifests its exclusivity, since it differs significantly from contracts with other employees at a particular enterprise / organization. Therefore, such an employment contract should be a truly working document drawn up by specialists. Taking into account the standard forms of contracts, one should very carefully adapt them to the realities of a particular organization, a particular leader, taking into account his business and personal qualities.

It is now often practiced to receive wages"In an envelope". As you know, wages are an essential condition of the contract, and in the case of wages "in an envelope", the contract specifies the amount of wages to be significantly lower than in fact. That is, it turns out that a formal agreement has been concluded between the parties, which does not reflect the actual relationship. In cases of problematic situations, the employer uses this situation to his advantage, for example, to calculate payments to the employee, he uses the amount prescribed in the contract, and in the opposite case, for example, if the employee caused damage, insists on payments based on the actual salary received.

It turns out that often the contract does not reflect the really developing relations between the parties, and the dependent, weak side there is always an employee, regardless of what place on career ladder it takes. Thus, it is concluded that the contract should reflect the actual employment relationship, and not be a fictitious or formal document.

Another problematic situation is that often the employee is not given due attention when concluding an employment contract, i.e. the employee does not participate in drafting the text, but only joins the form of the contract proposed by the employer. The content of the contract is drawn up in such a way (even taking into account the peremptory norms of the law) so that in case of controversial issues the employee remains on the losing side.

So, in general, the legal significance of an employment contract is that it is the basis for the emergence and action in time of the employee's employment relationship. Under the employment contract, the employee becomes a member of the labor collective and acquires additional benefits established by the collective agreement and social partnership agreements, as well as the right to participate in the management of the organization. With the conclusion of an employment contract, its parties are subject to labor rights and obligations provided for by other institutions of labor law (for limiting working hours, vacations, wages, labor protection, etc.).

Thus, an employment contract is the basis for the extension of general and special labor legislation to the employee. An employment contract is a contract of a personal nature, since the employee personally carries out work in the general cooperation of labor and cannot do this through another person. Therefore, such an agreement protects the identity of the employee, his health, honor and dignity.

M. Popova-Ivanova, Head of HR and Labor Relations Department

Act as an employer in labor relations with other employees of the organization.

These conclusions follow from the provisions of par. 1 clause 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 06/02/2015 N 21.

The terms of reference of the manager are much broader than the powers of other employees of the organization. In accordance with the Civil Code of the Russian Federation and individual federal laws on legal entities, the head is granted, for example, the following rights:

To represent the interests of the organization and to conclude transactions on its behalf (subparagraph 1 of paragraph 3 of article 40 of the Federal Law of 08.02.1998 N 14-FZ (hereinafter - Law N 14-FZ), paragraph 3 of paragraph 2 of article 69 of the Federal Law dated 26.12.1995 N 208-FZ (hereinafter - Law N 208-FZ));

Issue powers of attorney for the right of representation on behalf of the organization (clause 4 of article 185.1 of the Civil Code of the Russian Federation, clause 2 of clause 3 of article 40 of Law N 14-FZ);

Approve the staff of the organization (paragraph 3, clause 2, article 69 of Law No. 208-FZ);

Issue orders on the appointment of employees to positions, on their transfer and dismissal, to apply incentive measures and impose disciplinary sanctions (subparagraph 3 of paragraph 3 of article 40 of Law N 14-FZ);

Issue orders and give instructions that all employees must comply with (paragraph 3, clause 2, article 69 of Law No. 208-FZ).

Thus, the peculiarity of the legal status of the head of an organization is as follows: he is subject to the labor law norms, as to an employee who has entered into labor relations with an employer - a legal entity on the basis of an employment contract, as well as norms of civil law and laws on legal entities, such as to the executive body of a legal entity (part 1 of article 273, article 274 of the Labor Code of the Russian Federation, clause 4 of article 53 of the Civil Code of the Russian Federation).

It should be borne in mind that labor relations with the head are governed by a special chapter. 43 of the Labor Code of the Russian Federation. Its action applies to the heads of organizations (in particular, directors, CEOs, temporary sole executive bodies of business companies) regardless of the organizational and legal forms and forms of ownership of such organizations (paragraph 1 of part 2 of article 273 of the Labor Code of the Russian Federation, paragraph 2 of paragraph 1 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 02.06.2015 N 21) ...

With regard to members of the collegial executive body (for example, the board, directorate business society) who have entered into an employment contract with the organization, the provisions of Ch. 43 of the Labor Code of the Russian Federation, if it is provided for by federal laws, the constituent documents of the organization (part 1 of article 281 of the Labor Code of the Russian Federation, paragraph 3 of paragraph 1 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 06/02/2015 N 21).

The norms of Ch. 43 of the Labor Code of the Russian Federation do not regulate labor relations with the head in the following cases (part 2 of article 273 of the Labor Code of the Russian Federation, paragraph 2 of paragraph 1 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 06/02/2015 N 21):

The head is the only participant (founder), a member of the organization, the owner of its property;

Specifics of concluding an employment contract with a manager who is the only participant (founder) of a company

The management of the organization was transferred by agreement to another organization (managing organization) or to an individual entrepreneur (manager).

The provisions of Ch. 43 of the Labor Code of the Russian Federation does not apply to employees who manage a specific area of the organization's activity (for example, the artistic director of a theater) or its structural unit(for example, the head of a branch) without entrusting them with the functions of the sole executive body. This follows from par. 3 clause 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 06/02/2015 N 21.

MEASURES TO BE PERFORMED BEFORE SIGNING THE EMPLOYMENT CONTRACT

WITH THE HEAD OF THE ORGANIZATION

2. Appointment (election) to the position of the head >>>

RECRUITING THE HEAD OF THE ORGANIZATION

1. Procedure for concluding an employment contract >>>

2. A person entitled to conclude an employment contract with a manager >>>

2.1. Specifics of concluding an employment contract with a manager who is the only participant (founder) of the company >>>

3. Form and content of the employment contract with the manager >>>

3.1. The term of the employment contract with the manager >>>

3.2. Establishing irregular working hours for the manager >>>

4. Registration of an order for employment >>>

5. Registration of the manager's work book >>>

6. Personal card of the employee-manager >>>

Registration of an order for employment

The hiring of the head of the organization, like any employee, is formalized by order according to the unified form N T-1 (approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 N 1). This form can be supplemented with a line, which will indicate the document on the basis of which the head was appointed (elected). Note that the basis for hiring a manager is an employment contract and a protocol (decision, order of the owner of the organization's property) on his election or appointment.

The addition of unified forms is carried out in accordance with the Resolution of the State Statistics Committee of Russia dated 03.24.1999 N 20. Adding details to forms without publication administrative document the head is not allowed (paragraph 3 of the Procedure for the application of unified forms of primary accounting documentation, approved by the specified Resolution).

The order on the employment of the head of the organization is signed by a person authorized by the founders, owners of the organization's property on the basis of the charter (including the appointed head himself). As a general rule, with this document, the employee must be familiarized with the signature within three days from the date of the actual start of work (part 2 of article 68 of the Labor Code of the Russian Federation).

Rostrud expresses a different opinion about applying for a job. He recommends, on the basis of the concluded labor contract, to issue an order on taking office (Rostrud letter of 19.12.2007 N 5205-6-0).

See sample order filling.

Note that regardless of which order will be issued, it must be issued on the basis of an already concluded employment contract and announced to the head of the organization against signature within three days from the date of the actual start of work (part 2 of article 68 of the Labor Code of the Russian Federation).

Registration of the manager's work book

The work book of the head is drawn up in accordance with the Rules for maintaining and storing work books, making forms for a work book and providing employers with them, approved by the Decree of the Government of the Russian Federation of April 16, 2003 N 225 "On work books" (hereinafter referred to as the Rules for maintaining and storing work books) and the Instruction on filling out work books, approved by the Decree of the Ministry of Labor of Russia dated 10.10.2003 N 69 "On approval of the Instructions for filling out work books" (hereinafter - Instructions for filling out work books).

For more details, see "Guide to HR issues. Employment record book".

The work book is filled in by the employee responsible for maintaining work books, no later than a week from the date of hiring a new employee. The responsible person is appointed by order of the head of the organization. This conclusion is confirmed by clauses 10, 45 of the Rules for maintaining and storing work books.

The peculiarity of filling out the work book of the head of the organization is that in column 4 you can enter the details of either the order for employment, or the document on the basis of which the head was appointed (elected) to this position. This conclusion is based on the totality of the norms of clause 3.1 of the Instructions for filling out work books and part 2 of Art. 16 of the Labor Code of the Russian Federation, as well as the position of Rostrud, set out in a letter dated September 22, 2010 N 2894-6-1.

See a sample of filling out a work book.

ANOTHER EMPLOYEE

For the period when the manager is absent (for example, during vacation, illness, business trip), it is possible not to appoint an employee who performs his duties. The head has the right to delegate some of his powers by issuing a power of attorney for the right of representation on behalf of the company (for example, to obtain an insurance certificate of compulsory pension insurance, conclude agreements with counterparties, represent the interests of the organization in courts by lawyers, etc.), if the transfer of these powers is permitted by the charter ... But even in this case, legal responsibility for decisions taken on the basis of a power of attorney, the head of the organization will still carry it.

A situation from practice. How to properly process the transfer to the head of the personnel department of the right to sign personnel documents on behalf of the employer?

In this situation, it is necessary to issue a power of attorney on behalf of a legal entity (organization) signed by the director with the seal of the organization attached.

The power of attorney must indicate that the head of the personnel department has the right to sign personnel documents, conclude employment contracts, etc. In accordance with paragraph 3 of Art. 40 of the Federal Law of 08.02.1998 N 14-FZ, the head of a limited liability company issues powers of attorney for the right of representation on behalf of the company, including powers of attorney with the right of substitution. The head of a unitary enterprise is also entitled to issue powers of attorney in the manner prescribed by law (Article 21 of the Federal Law of 14.11.2002 N 161-FZ).

If for the period of absence of the head it is necessary to appoint an acting person, then one should be guided by the norms of Art. Art. 60.2, 151 of the Labor Code of the Russian Federation. In other words, if an employee is entrusted with additional work in order to fulfill the duties of a temporarily absent employee, then the employer must:

Obtain the employee's written consent to perform additional work (part 1 of article 60.2 of the Labor Code of the Russian Federation);

Determine the deadline for completing additional work, its content and scope (part 3 of article 60.2 of the Labor Code of the Russian Federation);

Pay for such work (Article 151 of the Labor Code of the Russian Federation).

Please note that these articles do not contain a list of positions (types of work) for which the employer has the right to instruct to perform duties for the absent employee.

In addition, the employee has the right to early refuse to perform additional work, notifying the employer in writing not later than three working days. In this case, the employer cannot demand its fulfillment. The same period is provided for notifying the employee about the cancellation of the order to perform additional work. This conclusion follows from the content of Part 4 of Art. 60.2 of the Labor Code of the Russian Federation.

Additional work is entrusted to the employee only by the employer. In commercial organizations, his rights and obligations are exercised by the governing bodies of the legal entity or persons authorized by them (Article 20 of the Labor Code of the Russian Federation).

Consequently, before appointing an employee as an interim head of the organization, it is necessary to determine the body or person who has the right to do this, for which it is necessary to refer to other federal laws (Federal Law of 08.02.1998 N 14-FZ, Federal Law of 26.12.1995 208-FZ, Federal Law of November 14, 2002 N 161-FZ, Federal Law of 05/08/1996 N 41-FZ, etc.).

More about jurisprudence regarding the right of the person performing the functions of the sole executive body of an LLC to appoint an interim executive body of this body, see "Guide to corporate disputes. Questions of judicial practice: Board of directors (supervisory board) and the sole executive body of a limited liability company".

Important! In the charter of the organization or other documents, it is advisable to fix the procedure for appointing an acting head and (or) delegating powers in order to avoid disputes regarding the granting of powers of a head to a person who has not been elected to the position of the sole executive body (director, general director).

The fulfillment of the duties of a temporarily absent employee (manager) without release from work specified in an employment contract must be formalized by a mandatory conclusion supplementary agreement with an employee who is entrusted with additional work, and the issuance of an appropriate order.

See a sample for completing a supplementary agreement.

See sample order filling.

A situation from practice. Is the employer obliged to pay an additional payment to the deputy manager for performing the duties of the manager while the latter is on annual paid leave?

Answer: There are two positions on this issue.

Position 1: No additional payment is made if the obligation to replace the manager during the period of his absence is provided for in the employment contract ( job description) deputy.

Rationale: This opinion is set forth in the letters of the Ministry of Health and Social Development of Russia dated 12.03.2012 N 22-2-897 and Rostrud dated 24.05.2011 N 1412-6-1. The authorities explain that in this case, the duties of the absent employee (manager) are fulfilled within the framework of the employment contract, and therefore, the employer is not obliged to pay extra for the specified work.

Position 2: The employer must make an additional payment for the performance of the duties of the absent employee in connection with his replacement.

Rationale: By virtue of Part 1 of Art. 151 of the Labor Code of the Russian Federation, an employee who performs the duties of a temporarily absent employee without being released from work specified in an employment contract is paid an additional payment. Its size is established by agreement of the parties, taking into account the content and (or) the amount of additional work (part 2 of article 151 of the Labor Code of the Russian Federation). In Art. 21 of the Labor Code of the Russian Federation provides for the right of an employee to timely payment of wages in full in accordance with his qualifications, labor complexity, volume and quality of work performed.

The Supreme Court of the Russian Federation in its Ruling of 11.03.2003 N KAS03-25 indicated that the complexity of the work of the deputy and the amount of work performed by him during the absence of the head increases significantly and, therefore, such work requires additional payment by virtue of Art. Art. 21, 151 of the Labor Code of the Russian Federation.

Due to the fact that letters from departments with explanations on the application of labor legislation are not mandatory documents, we recommend that you be guided by the second position. It is based on the norms of the Labor Code of the Russian Federation and is confirmed by judicial practice.

When concluding an employment contract with the deputy head, which indicates the performance of the duties of the head in connection with his replacement during the absence of the latter, it is advisable to agree on the amount of additional payment for such work (for example, as a percentage of the salary of the replaced employee).

See also:

Expert consultation: Is there an additional payment to the full-time deputy head for the performance of the duties of a temporarily absent head, if this is not provided for by the local documents of the organization?

SUBSIDIARY AND DEPENDENT COMPANY

A company (legal entity) has the right to have subsidiaries and dependent companies. But unlike branches and representative offices, such companies are endowed with the rights of legal entities (clause 1 of article 6 of the Federal Law of December 26, 1995 N 208-FZ, clause 1 of article 6 of the Federal Law of 08.02.1998 N 14-FZ).

The relationship between a subsidiary (dependent) company and the company that created it is governed by the norms of civil legislation.

Labor relations between the employees of the subsidiary (dependent) company and the company that created it do not arise, since the employer is the subsidiary (dependent) company. The exception is cases when an employee of a subsidiary (dependent) company enters into a part-time employment contract with the organization that created such a company.

For more on this, see the Guide to Human Resources - Hiring.

DISCIPLINARY RESPONSIBILITY OF THE HEAD

ORGANIZATIONS

1. For which the head of the organization can be brought to disciplinary responsibility >>>

2. Who has the right to bring the head of the organization to disciplinary responsibility >>>

3. In what order the head of the organization is brought to disciplinary responsibility >>>

4. Terms of application of the penalty >>>

5. How to formalize bringing to disciplinary responsibility of the head of the organization >>>

6. Consequences of violations of the procedure for bringing the head of the organization to disciplinary responsibility >>>

1. For which the head of the organization can be brought to disciplinary responsibility

It is possible to bring a manager to disciplinary responsibility for non-fulfillment or improper fulfillment of his labor duties, for violation of labor legislation, a collective agreement (part 1 of article 192 of the Labor Code of the Russian Federation). For example, a disciplinary sanction can be applied to a manager for refusing to inform the applicant of the reason why he was not hired, or for verbally reporting the reasons for the refusal, which violates the requirements of Part 5 of Art. 64 of the Labor Code of the Russian Federation.

Without fail, the head is brought to disciplinary responsibility if an application is received from the representative body of employees about the violation by the head of the organization of labor legislation or the terms of the collective agreement, the agreement and the indicated facts are confirmed (Article 195 of the Labor Code of the Russian Federation).

Disciplinary sanction in the form of a remark, reprimand or dismissal in addition to the general grounds provided for in Part 3 of Art. 192 of the Labor Code of the Russian Federation, can be applied for the following offenses:

Adoption of an unreasonable decision that entailed a violation of the safety of property, its unlawful use or other damage to the organization's property (clause 9, part 1, article 81 of the Labor Code of the Russian Federation);

One-time gross violation by the head of his job duties (clause 10, part 1, article 81 of the Labor Code of the Russian Federation).

For more information on the general grounds for the application of disciplinary action, see "Guide to Human Resources. Disciplinary Actions. Remark, reprimand, dismissal".

In other cases, the issue of disciplinary action against a manager is solely at the discretion of the employer.

2. Who has the right to bring the head of the organization to disciplinary responsibility

The authorized body, which is specified in the organization's charter containing information on the competence of the management bodies, has the right to bring the manager to disciplinary liability on behalf of the employer (paragraph 8, clause 3, article 11 of the Federal Law of December 26, 1995 N 208-FZ, paragraph 4, clause . 2 Article 12 of the Federal Law of 08.02.1998 N 14-FZ).

In a limited liability company, such a body may be a meeting of participants or a board of directors (supervisory board) (paragraph 1, clause 1 of article 32, article 33 of the Federal Law of 08.02.1998 N 14-FZ), and in joint stock company- only the board of directors (supervisory board) (paragraph 1, clause 1 of article 64, article 65 of the Federal Law of December 26, 1995 N 208-FZ).

3. In what order is the head of the organization brought to disciplinary responsibility?

The procedure for applying a disciplinary sanction to a manager is similar to the general procedure enshrined in Art. 193 of the Labor Code of the Russian Federation.

However, due to the specific legal status of the head of the organization, it should be remembered which governing body acts in relation to him as an employer. For more details, see clause 2 of this material.

Bringing a manager to disciplinary responsibility involves the following actions:

Documentary fixation of the misdemeanor;

Informing the employer (his authorized body) about the fact of misconduct;

The employer requests written explanations from the manager;

Making a decision on the application of a disciplinary sanction based on the analysis of the reasons and circumstances of the misconduct, as well as taking into account its severity;

Documenting disciplinary action in compliance with the term for bringing to disciplinary responsibility.

Let's take a closer look at the main points.

1. The fact of the misdemeanor committed by the head must be documented.

Without written confirmation of the employee's guilt and the circumstances that led to the violation of labor discipline, the employer will not be able to decide on the application of a disciplinary sanction.

The exact list of documents that make up in such cases is not established by the Labor Code of the Russian Federation. The fact of committing a misdemeanor may be evidenced, for example, by the following documents:

Statement of the representative body of employees (if any in the organization) (part 1 of article 195 of the Labor Code of the Russian Federation);

A document drawn up based on the results of an audit, audit of financial and economic activities or an audit. This follows from the analysis of Part 4 of Art. 193 of the Labor Code of the Russian Federation;

Memorandum of any employee of the organization;

An act drawn up by several employees;

Legal status of the head of a legal entity. The legal status of the head of the organization. Labor function of the head of the organization

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