What needs to be known at an execution of an employment agreement of
successfully to get a job, it is necessary in time and it is correct to issue the labor relations with the employer for what it is necessary to sign a number of documents, the employment contract is basic of which. At its conclusion it is necessary to be especially attentive, this agreement has to conform to requirements of the Labour code of the Russian Federation completely. Unfortunately, employers not always carry out them.
Concept of the employment contract
the Employment contract is the agreement between the employer and the worker. In it define the mutual rights and obligations of the parties. So, the employer has to employ the employee on the caused labor function, provide normal working conditions and in a full size to pay it a salary, and the worker - personally to carry out the labor function determined by this agreement and to follow the employment policies and procedures existing in the organization.
In this agreement are quite often provided by conditions about test, nondisclosure of the secret protected by the law (state, office, commercial), and also other conditions which are not worsening the worker`s situation in comparison with the Labour code of the Russian Federation (further - the Labor Code of the Russian Federation), laws and other regulations, the collective agreement, agreements. He is imprisoned in writing and made in duplicate which sign the parties, at the same time one of them is transferred to the worker, and another is stored at the employer.Grazhdansko`s
- legal instrument
Now the organizations practice the conclusion grazhdansko - legal instruments (most often agreements of paid rendering services) instead of labor that significantly worsens situation of workers.grazhdansko - legal instrument the employer (in this case it is more correct to call him the customer) is allocated with
- At the conclusion considerably the smaller volume of duties concerning the performer of services. For example, he should not give to the worker holiday, pay sick-lists, provide labor protection etc.
- the Services agreement provides a large number of options of change of amount of remuneration which does not depend on size minimum wage rate, and also does not assume any obligatory payments established by the labor legislation.
- At the conclusion grazhdansko - legal instruments the employer does not make payments on obligatory insurance upon accidents and occupational diseases in Social Insurance Fund of the Russian Federation if other is not provided by the contract.
- At the conclusion grazhdansko - legal instruments the mode of working hours of the performer is set randomly without the restrictions determined by the labor legislation (the maximum duration of working hours in week, day etc.) . Theoretically the performer unlike the worker can provide to the employer bigger result for the same time.
- According to the employment contract income tax from the sum of remuneration for performance of labor duties is paid by the employer as the tax agent. It pays a unified social tax from the sum of payments to the worker while on grazhdansko - to legal instrument these duties lie on the subordinate.
it is clear From here that it is more favorable to employer to conclude not labor, and grazhdansko - legal instrument. In this regard the extreme importance is got by legal distinctions between the agreement of paid rendering services and the employment contract. It agrees to the last:as
- only the natural person while both natural and legal entities can be the performer on grazhdansko - to legal instrument acts as the worker;
- the worker is obliged to carry out personally labor function, and on grazhdansko - to legal instrument performance of service by the other person is allowed;
- the employer is obliged to give to the subordinate a salary not below the minimum wage rate, and the customer is obliged to pay remuneration for services in a size established by the contract; pay with
- not materialized result created during labor process, and concrete work (as process).
Similar features should consider and pay attention to them at registration of the relations with the employer.
Age of the worker
By the general rule can sign the employment contract with the persons which reached 16 - summer age (Art. 63 of the Labor Code of the Russian Federation), however three age exceptions are provided.
First, in cases of receiving the main education or leaving according to the federal law of educational institution it is possible to conclude agreements with the persons which reached 15 - summer age.
Secondly, it is authorized to employ 14 - summer teenagers if:to
- work is not contraindicated to health of the minor; work is performed by
- in non-study time and does not break training process;
- the consent of one of parents (the adoptive father, the trustee) to work of the child, and also a consent of body of guardianship and guardianship is.
B of the third, the employment contract with the persons which did not reach 14 - summer age, is concluded:
- for participation in creation and (or) execution of works in the organizations of cinematography, theaters, the theatrical and concert organizations, circuses; if work does not cause to
- damage to health and moral development;
- if the consent of one of parents (the adoptive father, the trustee) to work of the child, and also a consent of body of guardianship and guardianship is.
of Workers aged till 18 years is equated in the rights to full age and in the field of labor protection, working hours, holidays and some other working conditions. They use the privileges established by the Labor Code of the Russian Federation and other acts of the labor legislation.
of the Guarantee of the rights of the worker at an execution of an employment agreement
As the person who is getting a job is in a dependency from the employer, the law provides it a wide range of guarantees at an execution of an employment agreement. For example, the employer cannot refuse to the applicant employment, without having reported a cause of failure.
the Following important guarantee is the ban on restriction of the rights or establishment of direct or indirect advantages at an execution of an employment agreement depending on a floor, race, skin color, a nationality, language, an origin, property, social and official capacity, the residence (including existence or lack of registration at the place of residence or stay), and also depending on other circumstances which are not connected with business qualities of workers except for the cases provided by the federal law.
understand ability to perform a certain work taking into account professional (existence of a certain profession, specialty, qualification) and personal (a state of health, existence of a certain education level, experience in the specialty or in this branch As business qualities) qualities.
In practice very often the employer does not sign the labor agreement with citizens of the Russian Federation because of lack of registration at them. Similar actions are illegal.
Is forbidden to refuse an execution of an employment agreement to pregnant women and women with children. Otherwise criminal liability is provided.
Besides, it is impossible to refuse to the workers invited in writing to work as the translation from other employer within one month from the date of dismissal from the former duty station.
the Employer upon the demand of the applicant is obliged to tell him a cause of failure in writing. It is possible to appeal against this refusal in a judicial proceeding.
As the current legislation contains only an approximate list of the reasons for which the employer has the right to refuse employment to the person who is looking for work, a question of whether discrimination at refusal in an execution of an employment agreement took place, solve in court by consideration of concrete business.
the Documents shown at an execution of an employment agreement
the Employer has the right to demand from the candidate for a concrete position only those documents which are specified in the law, namely:
- passport or other identity document (military ID, international passport, driving license, etc.) ;
- the service record, except for cases when the employment contract is signed for the first time or the worker goes to work on the terms of combining jobs;
- insurance evidence of the state pension insurance;
- documents of the military account for the persons liable for call-up and persons who are subject to military draft;
- the document on education, qualification or existence of special knowledge at revenues to the work demanding special preparation.
At an execution of an employment agreement for the first time the service record and the insurance evidence of the state pension insurance is made out by the employer.These documents use
to fill a personal card of the subordinate and his personal account. In some cases the legislation provides presentation of additional papers at an execution of an employment agreement. However the employer has no right to demand the documents which are not provided by the legislation.the Employer can also on - ask (not to demand) to fill with
the worker the questionnaire and to make the autobiography.
the Employer has no right to ask the applicant about his political, religious and other convictions, membership in public associations and private life, and also to demand the characteristic from the previous place of work. Besides, he has no right to ask the documents confirming registration existence. Refusal in an execution of an employment agreement because of absence at the potential worker of documents (if their existence is not required under the law) is illegal and can be appealed in a judicial proceeding.
Registration of employment
Transfer on the duty station is made out the order of the employer issued on the basis of the signed employment contract. The order on employment is declared to the worker on receipt in three-day time from the date of signing of the labor agreement. Upon the demand of the applicant the employer is obliged to issue him the certified copy of the specified order, to inform of the employment policies and procedures existing in the organization, other local regulations concerning its labor function and also of the collective agreement.
Medical examination at an execution of an employment agreement
the Main objective of medical examination of the worker at the conclusion to them the employment contract is its health protection and surrounding persons (population). The persons which did not reach age of 18 years and also other citizens in the cases provided by the Labor Code of the Russian Federation and other federal laws without fail are subject to it. The majority of such cases concerns the works performed in harmful, dangerous or heavy (including climatic) conditions.the Employer has no right to refuse to
employment on the basis of results of medical examination, except for the cases provided by the legislation (to the workers occupied on a hard work and at works with harmful or dangerous working conditions, at the works connected with traffic, to employees of the enterprises of the food industry, public catering and trade, water constructions, lechebno - preventive and child care facilities etc.) .
the Duty of payment of survey lies on the employer.Should note
that the Labor Code of the Russian Federation does not demand from the applicant to pass psychological test. Refusal in employment because of discrepancy of a psychological portrait of the candidate will be unreasonable.the following in conclusion would be desirable to note
- At employment for the benefit of the worker it is correct to p to issue the relations with the employer. Conclusion of agreement with the employer in the form of the employment contract is more preferable than
- to the worker, than in shape grazhdansko - legal instrument. by
- the Law established the refusal bases to the citizen in employment. Illegal refusal in employment can be appealed by
- in court.