Employment contract 2019 sample free download with an employee, IP form

04.04.2019

The concept of "Employment contract" and "Parties of the employment contract" is defined in Article 56 Labor Code Labor Code of Russia (Labor Code of the Russian Federation). Employment contract- an agreement between the employer and the employee, according to which the employer undertakes to provide the employee with work according to the stipulated labor function, to ensure working conditions provided for by labor legislation and other regulatory legal acts containing norms labor law, the collective agreement, agreements, local regulations and this agreement, pay the employee wages in a timely manner and in full, and the employee undertakes to personally fulfill the labor function in the interests, under the direction and control of the employer, to comply with the rules of internal work schedule operating for this employer.The parties to an employment contract are the employer and the employee.

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The Labor Code does not define a specific form or model of an employment contract, except for micro-enterprises (since 01/01/2017). New standard form of employment contract for micro-enterprisesapproved by Government Decree Russian Federation dated August 27, 2016 No. 858 "On the standard form of an employment contract concluded between an employee and an employer - a small business entity that belongs to micro-enterprises."The beginning of the document: 01/01/2017.

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Forms are exemplary.You can choose the most suitable form. Forms can be adjusted depending on the specific situation and needs. IP contracts presented ( individual entrepreneur), organizations (LLC, JSC, etc.) with an employee. Formsemployment contract with the director, accountant, seller, driver, see this .

New on the topic

New from 04/04/2019: The Ministry of Labor of the Russian Federation in a letter dated 03/07/2019 No. 14-2 / ​​V-139 informs that the employer can dismiss the employee after the expiration of the employment contract, even during the period of the employee's vacation or during a period of temporary disability.

New from 12/28/2018: The Ministry of Labor in a letter dated November 12, 2018 No. 14-1 / OOG-8602 informs that the payment wages ahead of schedule does not violate the rights of workers.

New from 12/14/2018: E Rostrud experts report thatonly a court can recognize a fixed-term employment contract as indefinitea fixed-term employment contract is concluded only on the grounds listed in Article 59 of the Labor Code of the Russian Federation.An employment contract concluded for a fixed period in the absence of sufficient grounds established by the court is considered concluded for an indefinite period (part 5 of article 58 of the Labor Code of the Russian Federation).

New from 12/14/2018: Omsk regionalthe court in the appeal ruling dated 06/27/2018 in case No. 33-4045 / 2018 allowed employers not to index the wages of employees (with regular payment of bonuses, etc.).

New from 12/06/2018: Rostrud experts explain that reduce wages temporarily probationary period not possible, according to the requirementspart 3 of article 70 of the Labor Code of the Russian Federation.

New from 10/30/2018: Rostrud experts in the report of Rostrud with guidance on compliance the mandatory requirements of the regulatory legal acts for the III quarter of 2018 are explained and reported:

When it is possible to extend the term of the employment contract with the help of an additional agreement;

When the employment contract includes the conditions for granting leave;

The position in the employment contract does not always have to correspond to qualification directories.

New from 07/31/2018: The Government of Russia in Decree No. 873 dated 07/26/2018 amended the standard form of an employment contract with the head of a state (municipal) institution.

New from 3/30/2018: MIntruder of the Russian Federation, in a letter dated March 21, 2018 No. 14-2 / ​​V-191, clarifies whether the numbering of employment contracts is mandatory in a commercial organization, and which numbering system can be used.

New from 03/19/2018: The Ministry of Labor of the Russian Federation, in a letter dated 03/05/2018 No. 14-2 / ​​V-148, clarified how the personnel registration of employees involved in work for which various restrictions are defined by laws is carried out.

New from 01/18/2018:The Ministry of Labor proposed to supplement the standard form of an employment contract with the head of a state (municipal) institution with new responsibilities. Draft resolution: regulation.gov.ru

New from 10/31/2017: The Ministry of Labor of Russia, in a letter dated 10/18/2017 No. 14-2 / ​​V-935, clarifies the procedure for recovering from an employee the amounts spent on his training, in case early termination labor contract.Excerpt: "In case of dismissal without good reason before the expiration of the period specified in the employment contract or in the training agreement at the expense of the employer, the employee is obliged to reimburse the costs incurred by the employer for his training."

New from 10/30/2017: The Ministry of Labor of the Russian Federation, in a letter dated October 19, 2017 N 14-2 / ​​V-942, explained whether, when concluding an employment contract with an employee, it is possible to sign a separate agreement, according to which, within a year after dismissal, the employee undertakes not to be employed in competing companies (the Employer does not has the right to restrict the employment of former employees).

New from 10/30/2017: The Ministry of Labor of the Russian Federation, in a letter dated 10/18/2017 N 14-2 / ​​V-935, clarifies how the termination of an employment contract concluded with a temporary worker is carried out while the main employee is on sick leave (when the term for terminating the employment contract is determined by the date on the sick leave).

New from 08/02/2017:

According to Rostrudfor the absence of mandatory conditions in the employment contract (article 57 of the Labor Code of the Russian Federation "Content of the employment contract") the employer faces a fine. For more details, see the message of Rostrud.

New from 07/13/2017:
The Ministry of Labor of Russia, in a letter dated June 30, 2017 No. 14-1 / V-591, explained which clauses a microenterprise can exclude from a standard employment contract. More on this one.

Commentary on the standard form of an employment contract for micro-enterprises(Source: government.ru)
Decree No. 858 of August 27, 2016 approved a standard form of an employment contract, including various options completion of individual terms and conditions. A standard form of an employment contract at micro-enterprises will help the manager to conclude it in accordance with the requirements of labor legislation and take into account the specifics associated with the performance of specific work related to a particular employee.
Prepared by the Ministry of Labor in pursuance of the list of instructions of the President of Russia following the meeting of the State Council on the development of small and medium-sized businesses, held on April 7, 2015 (No. Pr-815GS dated April 25, 2015, paragraph 4, subparagraph "b") and in order to implement the Federal Law of July 3, 2016 No. 348-FZ "On Amendments to the Labor Code of the Russian Federation in Part of the Specifics of Labor Regulation for Persons Working for Employers - Small Business Entities Classified as Micro-Enterprises" (hereinafter - Federal Law No. 348-FZ).
In accordance with Federal Law No. 348-FZ, an employer - a small business entity, which is classified as a micro-enterprise, has the right not to adopt local regulations containing labor law norms (internal labor regulations, regulations on wages, shift schedules, and others). At the same time, the terms and conditions, which, in accordance with the Labor Code, are regulated by local regulations, must be included in the employment contract, which is concluded on the basis of a standard form approved by the Government of Russia.
The signed resolution approved a standard form of an employment contract, which includes various options for filling out individual provisions and conditions. This will ensure flexibility in the regulation of labor relations, taking into account the specifics of the activities of a particular employer.
The standard form of the contract includes special conditions that apply to remote and home workers, which are not used in other cases.
A standard form of an employment contract at micro-enterprises will help the manager to conclude it in accordance with the requirements of labor legislation and take into account the specifics associated with the performance of specific work related to a particular employee.
The implementation of the resolution will reduce the volume of document flow and increase the level of protection of the labor rights of employees working for employers - small businesses that are classified as micro-enterprises.

The employment contract specifies:
last name, first name, patronymic of the employee and the name of the employer (last name, first name, patronymic of the employer - an individual) who entered into an employment contract;
information about the documents proving the identity of the employee and the employer - an individual;
taxpayer identification number (for employers, except for employers - individuals who are not individual entrepreneurs);
information about the representative of the employer who signed the employment contract, and the basis by virtue of which he is endowed with the appropriate authority;
place and date of conclusion of the employment contract.
The following conditions are mandatory for inclusion in an employment contract:
place of work, and in the case when an employee is hired to work in a branch, representative office or other separate structural subdivision of the organization located in another locality, the place of work indicating the separate structural unit and its location;
labor function (work according to the position in accordance with staffing, professions, specialties indicating qualifications; specific type of work assigned to the employee). If, in accordance with this Code, other federal laws Since the performance of work in certain positions, professions, specialties is associated with the provision of compensation and benefits or the presence of restrictions, then the names of these positions, professions or specialties and qualification requirements for them must correspond to the names and requirements specified in qualification guides approved in the manner established by the Government of the Russian Federation, or the relevant provisions of professional standards;
the date of commencement of work, and in the case when a fixed-term employment contract is concluded, also the term of its validity and the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract in accordance with this Code or other federal law;
terms of remuneration (including the amount tariff rate or salary (official salary) of an employee, additional payments, allowances and incentive payments);
working time and rest time (if for a given employee it differs from general rules operating for this employer);
guarantees and compensations for work with harmful and (or) dangerous working conditions, if the employee is hired in appropriate conditions, indicating the characteristics of working conditions at the workplace;
conditions that determine, if necessary, the nature of work (mobile, traveling, on the road, other nature of work);
working conditions in the workplace;
a condition on compulsory social insurance of an employee in accordance with this Code and other federal laws;
other conditions in cases provided for by labor legislation and other regulatory legal acts containing labor law norms.
If at the conclusion of the employment contract it did not include any information and (or) conditions from among those provided for in parts one and two of this article, then this is not a basis for recognizing the employment contract as not concluded or terminating it. The employment contract must be supplemented with missing information and (or) conditions. In this case, the missing information is entered directly into the text of the employment contract, and the missing conditions are determined by the appendix to the employment contract or by a separate agreement of the parties, concluded in writing, which are an integral part of the employment contract.
The employment contract may provide for additional conditions that do not worsen the position of the employee in comparison with the established labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, in particular:
on the specification of the place of work (indicating the structural unit and its location) and (or) on the workplace;
about the test;
on non-disclosure of legally protected secrets (state, official, commercial and other);
on the obligation of the employee to work after training for at least the period established by the contract, if the training was carried out at the expense of the employer;
on the types and conditions of additional employee insurance;
on improving the social and living conditions of the employee and members of his family;
on clarifying, in relation to the working conditions of this employee, the rights and obligations of the employee and the employer established by labor legislation and other regulatory legal acts containing labor law norms;
on additional non-state pension provision for an employee.
By agreement of the parties, the employment contract may also include the rights and obligations of the employee and the employer established by labor legislation and other regulatory legal acts containing labor law norms, local regulations, as well as the rights and obligations of the employee and the employer arising from the terms of the collective agreement, agreements . The failure to include in the employment contract any of the specified rights and (or) obligations of the employee and the employer cannot be considered as a refusal to exercise these rights or fulfill these obligations.

concept Fixed-term employment contract introduced in Article 59 of the Labor Code of the Russian Federation.

According to article 60 of the Labor Code of the Russian Federation Prohibition to demand the performance of work not stipulated by the employment contract, except as provided for by this Code and other federal laws.

Article 60.1. The Labor Code of the Russian Federation defines the concept Part-time work
The employee has the right to conclude employment contracts on the performance, in his spare time from his main job, of another regular paid job with the same employer (internal part-time job) and (or) with another employer (external part-time job). Features of labor regulation of persons working part-time are determined by Chapter 44 of this Code.

Article 60.2. The Labor Code of the Russian Federation refers to: Combination of professions (positions). Expansion of service areas, increase in the volume of work. Fulfillment of the duties of a temporarily absent employee without release from work specified in the employment contract

Article 61 of the Labor Code of the Russian Federation defines:Entry into force of the employment contract

An employment contract shall enter into force from the day it is signed by the employee and the employer, unless otherwise provided by this Code, other federal laws, other regulatory legal acts of the Russian Federation or the employment contract, or from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his employer. authorized representative.
The employee is obliged to start performing labor duties from the day specified in the employment contract.
If the employment contract does not specify the day of commencement of work, the employee must start work on the next working day after the entry into force of the contract.
If the employee did not start work on the day of commencement of work, established in accordance with the second or third part of this article, the employer has the right to cancel the employment contract. The canceled employment contract is considered not concluded. Cancellation of an employment contract does not deprive the employee of the right to receive mandatory social insurance in the event of an insured event in the period from the date of conclusion of the employment contract until the day of its cancellation.

1. SUBJECT OF THE EMPLOYMENT CONTRACT

1.1. The employee is accepted to the Employer to perform work in a position in.

1.2. The employee is obliged to start work from "" 2019.

1.3. This employment contract comes into force from the moment it is signed by both parties and is concluded for an indefinite period.

1.4. The work under this contract is the main one for the Employee.

1.5. The place of work of the Employee is at: .

2. RIGHTS AND OBLIGATIONS OF THE PARTIES

2.1. The employee reports directly to the General Director.

2.2. The employee is obliged:

2.2.1. Perform the following duties: .

2.2.2. Comply with the Internal Labor Regulations established by the Employer, production and financial discipline, conscientiously treat the execution of their official duties specified in clause 2.2.1. of this employment contract.

2.2.3. Protect the property of the Employer, maintain confidentiality, not disclose information and information that is a trade secret of the Employer.

2.2.4. Do not give interviews, do not hold meetings and negotiations regarding the activities of the Employer, without the permission of his management.

2.2.5. Comply with the requirements of labor protection, safety and industrial sanitation.

2.2.6. Contribute to the creation of a favorable business and moral climate at work.

2.3. The employer undertakes:

2.3.1. Provide the Employee with work in accordance with the terms of this employment contract. The Employer has the right to require the Employee to perform duties (works) not stipulated by this employment contract, only in cases provided for by the labor legislation of the Russian Federation.

2.3.2. Provide safe conditions work in accordance with the requirements of the Safety Regulations and labor legislation of the Russian Federation.

2.3.3. Pay for the work of the Employee in the amount established in clause 3.1. of this employment contract.

2.3.4. Pay bonuses, remuneration in the manner and on the terms established by the Employer, provide material assistance, taking into account the assessment of personal labor participation The Employee in the work of the Employer in the manner prescribed by the Regulations on remuneration and other local acts of the Employer.

2.3.5. Carry out compulsory social insurance of the Employee in accordance with current legislation RF.

2.3.6. To pay, in case of production necessity, in order to improve the qualifications of the Employee, his training.

2.3.7. Familiarize the Employee with the requirements of labor protection and the Internal Labor Regulations.

2.4. The employee has the following rights:

• the right to provide him with the work specified in clause 1.1. this employment contract;
• the right to timely and full payment of wages;
• the right to rest in accordance with the terms of this employment contract and the requirements of the law;
• other rights granted to employees by the Labor Code of the Russian Federation.

2.5. The employer has the right:

• encourage the Employee in the manner and in the amount provided for by this employment contract, the collective agreement, as well as the terms of the legislation of the Russian Federation;
• involve the Employee in disciplinary and liability in cases stipulated by the legislation of the Russian Federation;
• exercise other rights granted to him by the Labor Code of the Russian Federation.

3. CONDITIONS OF PAYMENT OF THE EMPLOYEE

3.1. For the performance of labor duties, the Employee is set official salary in the amount of rubles per month.

3.2. When performing work of various qualifications, combining professions, working outside the normal working hours, at night, weekends and non-working holidays etc. The corresponding additional payments are made to the employee:

3.2.1. Weekend work and non-working holidays are paid double.

3.2.2. An employee who performs for the same employer, along with his main job, stipulated by an employment contract, extra work in another profession (position) or acting as a temporarily absent employee without release from his main job, an additional payment is made for combining professions (positions) or performing the duties of a temporarily absent employee in the amount determined by the supplementary agreement to this contract.

3.2.3. Overtime work is paid for the first two hours of work at least one and a half times, for subsequent hours - at least twice the amount. At the request of the employee overtime work instead of increased pay, it can be compensated by the provision of additional rest time, but not less than the time worked overtime.

3.3. Downtime due to the fault of the employer, if the Employee warned the employer in writing about the beginning of downtime, is paid in the amount of at least two thirds of the average salary of the Employee. Downtime for reasons beyond the control of the employer and the Employee, if the Employee warned the employer in writing about the start of downtime, is paid in the amount of at least two-thirds of the tariff rate (salary). Downtime due to the fault of the Employee is not paid.

3.4. The conditions and amounts of payment by the Company to the Employee of incentives are established in the collective labor agreement.

3.5. The Employer pays wages to the Employee in accordance with the "Regulations on wages" in the following order: .

3.6. Deductions may be made from the Employee's salary in cases stipulated by the legislation of the Russian Federation.

4. MODE OF WORKING TIME AND REST TIME

4.1. The employee is given a five-day work week duration of 40 (forty) hours. Days off are Saturday and Sunday.

4.2. During the working day, the Employee is given a break for rest and meals from noon to noon, which work time does not turn on.

4.3. Labor of the Employee according to the position specified in clause 1.1. contract is carried out under normal conditions.

4.4. An employee is granted annual leave of 28 calendar days. Leave for the first year of work is granted after six months of continuous work in the Company. In cases stipulated by labor legislation, at the request of the Employee, leave may be granted before the expiration of six months of continuous work in the Company. Leave for the second and subsequent years of work may be granted at any time of the working year in accordance with the order of granting annual paid holidays established in this Company .

4.5. For family reasons and other valid reasons, the Employee, upon his application, may be granted a short-term leave without pay.

5. SOCIAL INSURANCE OF THE EMPLOYEE

5.1. The employee is subject to social insurance in the manner and on the terms established by the current legislation of the Russian Federation.

6. WARRANTY AND REFUND

6.1. For the period of validity of this agreement, the Employee is subject to all guarantees and compensations provided for by the labor legislation of the Russian Federation, local acts of the Employer and this agreement.

7. RESPONSIBILITIES OF THE PARTIES

7.1. In the event of non-fulfillment or improper fulfillment by the Employee of his obligations specified in this agreement, violation of labor legislation, the Employer's internal labor regulations, other local regulations of the Employer, as well as causing material damage to the Employer, he shall bear disciplinary, material and other liability in accordance with the labor legislation of the Russian Federation.

7.2. The Employer bears material and other liability to the Employee in accordance with the current legislation of the Russian Federation.

7.3. In the cases provided for by law, the Employer is obliged to compensate the Employee for moral damage caused by illegal actions and (or) inaction of the Employer.

8. TERMINATION

8.1. This employment contract may be terminated on the grounds provided for by the current labor legislation of the Russian Federation.

8.2. The day of termination of the employment contract in all cases is the last day of the Employee's work, except for cases when the Employee did not actually work, but the place of work (position) was retained for him.

9. FINAL PROVISIONS

9.1. The terms of this employment contract are confidential and not subject to disclosure.

9.2. The terms of this employment contract are legally binding on the parties from the moment it is signed by the parties. All changes and additions to this employment contract are formalized by a bilateral written agreement.

9.3. Disputes between the parties arising from the performance of an employment contract are considered in the manner prescribed by the current legislation of the Russian Federation.

9.4. In all other respects that are not provided for by this employment contract, the parties are guided by the legislation of the Russian Federation governing labor relations.

9.5. The Agreement is made in two copies, having the same legal force, one of which is kept by the Employer, and the other by the Employee.

10. LEGAL ADDRESSES AND PAYMENT DETAILS OF THE PARTIES

Employer Jur. address: Postal address: TIN: KPP: Bank: Settlement/account: Corr./account: BIC:

Worker Registration: Postal address: Passport series: Number: Issued by: By: Phone:

11. SIGNATURES OF THE PARTIES

Employer _________________

Worker _________________

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Question

The job seeker wrote an application, the employer issued a referral for a medical examination on employment. The man left to undergo a medical examination and the second month is not announced. What should an employer do? Wait? Or look for a new one? And if it comes in a month with a passed inspection, the deadlines have not been set.

Answer

The period during which it is necessary to conclude an employment contract with the applicant, after passing the preliminary medical examination not established by law.

A medical examination can be completed in one day. Given that some doctors take at different times, you need to give the employee a week to undergo a medical examination.

If the applicant did not appear after being sent for a medical examination and did not present the results of the medical examination, this means that he does not want to enter into an employment relationship with the employer and vacant position you can hire another employee. This will not be a refusal to hire, since the employer has actually agreed to conclude an employment contract with the applicant, sending him for a medical examination. In this case, there is no will on the part of the applicant.

A preliminary medical examination is carried out before the conclusion of an employment contract to make sure that the employee has no contraindications to perform certain types of work (). Therefore, from the moment when the employee presented a certificate of fitness for work, issued on the basis of the results of a medical examination, it is possible to conclude an employment contract with him and bring him to work on the same day.

The basis for issuing an order for employment is not an application, but an employment contract (part of article 68 of the Labor Code of the Russian Federation). It is he who documents the agreement between a particular employee and the organization. This is stated in (i.e. the job application is not required).

The rationale for this position is given below in the materials of the Lawyer System , "Personnel Systems".

Preliminary examinations upon employment are carried out at the expense of the employer (). Their goal is to determine whether a candidate can apply for a particular position for health reasons before concluding an employment contract. *

If the preliminary medical examination is carried out in a medical institution, the candidate must be given a referral. In the direction given to the applicant for a position in hazardous (dangerous) work, indicate the harmful (dangerous) production factors that the employee will encounter after employment in a vacant position. In addition, in the direction indicate:

• the name of the employer;
• form of ownership and type economic activity organizations according to OKVED;
• the name of the medical organization, the actual address of its location and the OGRN code;
• type of medical examination (preliminary);
• surname, name, patronymic, date of birth of the applicant;
• the name of the structural unit of the organization (if any), in which the candidate will be employed;
• the name of the position (profession) of the applicant or the types of work that he will perform.

The direction is issued to the person under the signature. The employer must organize the accounting of issued referrals.

Such requirements are contained in paragraphs of the Procedure approved. Due to the current lack of a unified referral form, the organization has the right to develop it independently.

"Documenting.

What are the documents for hiring an employee?

When applying for a job:

• the employee, as a rule, writes a statement and attaches everything Required documents, and also gives the employer consent to the processing of his personal data;
• the employer introduces the employee against signature with local regulations directly related to his work;
• the employee and the employer conclude an employment contract;
• on the basis of the concluded contract, the personnel service issues an order for employment and draws up other documents: work book, personal card, pension certificate (if necessary).

Application for admission.

Question from practice: Is it mandatory to ask an employee for a job application?

No, not necessarily.

The basis for issuing an order for employment is not an application, but (). It is he who documents the agreement between a particular employee and the organization. This is stated in the Labor Code of the Russian Federation. However, it is very convenient to make official notes on the application: put down the resolution of the head of the organization, the visa of the immediate supervisor, the mark of execution. If for these purposes you ask an employee to write a statement, there is nothing illegal in this. You can make an application in . After applying for a job, the application is filed in the employee's personal file.*

Acquaintance with local acts.

What local acts you need to familiarize the employee with when hiring.

The employee must be familiarized under the signature with the local acts of the organization that are directly related to his work, even before signing the employment contract. Such local acts necessarily include the Labor Regulations and the collective agreement - if it is available in the organization.

In addition, it can be any other local acts of the employer that are related to the labor activity of a particular employee. For example, if the work of an employee involves business trips, then he must additionally be familiarized with the Regulations on business trips. If an irregular working day is set for an employee, then with the Regulations on irregular working hours, etc.

It is necessary to familiarize all employees with local documents, regardless of their position, including the head.

This procedure is provided for in Article 68 of the Labor Code of the Russian Federation.

« The order of acceptance to work.

How to issue an order to hire an employee.

Recruitment of an employee to work issue an order issued on the basis of a concluded employment contract. The content of the order must comply with the terms of the contract. This is stated in Article 68 of the Labor Code of the Russian Federation. For persons with whom the organization will conclude civil law contracts (contracts, paid provision services, etc.), orders for admission are not needed. Labor law does not apply to them ().

Issue an employment order in a unified, approved, or independently developed form.

It is necessary to familiarize the employee with the order on his employment within three days from the moment he actually started work. The order is brought to his attention under the signature. Prior to concluding an employment contract, an employee must be familiarized (under signature) with the Labor Regulations, the collective agreement and other internal documents governing labor activity. This procedure is provided for by parts and articles 68 of the Labor Code of the Russian Federation. *

Question from practice: what you need to write in the column "Employ by ..." of the order in the form No. T-1, if the employee is hired for an indefinite period

In this case, this cell is not filled. Such a rule is enshrined in the instructions approved. It is not necessary to write “indefinite period”, “not determined”, “not established”, etc. Let's put a dash.

Question from practice: what you need to write in the column "Conditions for employment, nature of work" of the order in the form No. T-1, if the employee is hired under normal conditions ( Full time job, eight-hour working day, etc.)

This column must be filled in only if the conditions and nature of the work differ from the generally established ones. For example, when an employee is hired part-time, part-time, in the order of transfer from another organization, etc. This follows from the instructions approved. However, in order not to leave the line empty, it is also allowed to record that the employee was hired under normal conditions (main job, permanent).

Employment history.

How to make a record of hiring an employee in the work book.

Professional help system for lawyers, where you will find the answer to any, even the most complex question.

Rubric "Employment contract"

Yu.A. Veremeyko, lawyer

A pre-employment test is a legitimate opportunity for an employer to assess an employee's skill level. The employee, in turn, understands that he was hired with the condition of a preliminary test and dismissal for him will not be a complete surprise. At the same time, a certain compensation for him is the opportunity to terminate the contract with a preliminary test on his own initiative.

In accordance with Art. 28 of the Labor Code of the Republic of Belarus, in order to verify the compliance of an employee with the work assigned to him, an employment contract, by agreement of the parties, may be concluded with the condition of a preliminary test, with the exception of cases provided for in Part 5 of Art. 28 TK.

In view of the foregoing, it is possible to define a preliminary test as a mechanism that is an additional condition of the employment contract and is aimed at optimizing the legal relations that develop between the parties to the employment contract immediately after its conclusion.

That the preliminary test is only additional condition employment contract, has importance. First of all, the parties to the contract have the right, but are not obliged to provide for a preliminary test condition in it.

On the other hand, the parties cannot conclude an agreement only on preliminary testing. In any case, an employer wishing to enter into labor relations with an employee with a preliminary test condition, must conclude an employment contract with him, providing for such an additional condition in it.

Taking into account that the preliminary test is only an additional condition of the employment contract (see Article 19 of the Labor Code), it must be borne in mind that during the period of its validity, the employee is with the employer in labor relations and they both have certain rights and bear corresponding obligations arising from the employment contract and provided for by labor legislation.

So, in accordance with Art. 28 of the Labor Code during the preliminary test, the employee is subject to the Labor Code with the features provided for in Art. 28 and 29 of the Labor Code, as well as other acts of labor legislation.

Many employers forget about this or simply do not take it into account and put the preliminary test in the first place, believing that it is of paramount importance for them, and that the employment relationship itself is only a tool for testing the employee.

So, a fairly common violation is the underestimation (or even complete deprivation) of an employee undergoing a preliminary test of wages.

EXAMPLE 1

Private commercial organization is hiring an accountant. At the conclusion of the contract, the head of the organization said that during the test period he would be assigned special tasks in order to determine the level of his professional qualities. Due to the fact that the employee during the performance of such tasks will be distracted from his immediate responsibilities he will be paid a reduced salary.

Upon completion of the preliminary test, wages will be paid in full.

In this example, the employer violates labor laws. Article 28 of the Labor Code does not really provide that the employee should be provided with a salary level corresponding to the position he holds or the work performed, as well as equal to the salary level of other employees performing similar work. At the same time, in accordance with Art. 28 of the Labor Code, all the norms of labor legislation, including the norms on wages, apply to the employee during the probationary period. A preliminary test cannot serve as a basis for lowering the salary level of an employee who has been given a preliminary test.

Employers should be aware that legal status employees undergoing preliminary testing, similar to the situation of all other employees of the employer. This is due to the fact that they, like other employees, are in an employment relationship with the employer, perform similar work, respectively, are entitled to a similar level of remuneration.

EXAMPLE 2

The employer hired a new employee with a preliminary test. Based on the results of work for the first quarter, the employer rewarded the employees of the organization. An employee hired with a preliminary test receives a smaller bonus compared to other employees of the department.

The employer is entitled to apply various incentive payments, such as bonuses. However, it must be taken into account that this way regulation of wages should not be based only on the presence in the employment contract of a condition on a preliminary test, i.e. the bonus cannot be reduced or not paid at all just because the employee passes the preliminary test. If the work performed meets the award criteria established by the local normative act employer, the employee is entitled to receive bonuses on an equal basis with other employees.

Some employers make mistakes when making a condition for a preliminary test. The Labor Code expressly provides that the absence of a preliminary test condition in the employment contract means that the employee is accepted without a preliminary test.

At first glance, this rule is actually not so unambiguous.

In accordance with Art. 18 of the Labor Code, an employment contract is concluded in writing, drawn up in two copies and signed by the parties. Despite the direct reference in the Labor Code to the condition of the mandatory written form of the employment contract, its non-compliance does not at all entail the invalidity of the employment contract.

In accordance with Art. 25 of the Labor Code, the actual admission of an employee to work is the beginning of the employment contract, regardless of whether the employment was properly executed. The actual admission by the authorized official of the employer of the employee to work must be formalized in writing no later than three days after the presentation of the demand of the employee, trade union, based on the prevailing conditions.

In practice, the absence of a written employment contract with the condition of a preliminary test specified in it leads to the fact that the employment contract will be considered concluded, and the preliminary test - not established. Moreover, such consequences will take place even if the parties agreed on the test orally, and even when the employer, for example, provided for such a condition in the order for employment or other documents.

It should be recognized as a certain omission that the legislation allows the employment contract to be considered concluded even in the case when the employee actually started work, even if the employment contract was not drawn up in writing, as indicated in Art. 25 of the Labor Code, but does not stipulate how, in this case, to establish a preliminary test for the employee. This approach effectively excludes the possibility of concluding an agreement with a preliminary test due to the fact that Art. 28 of the Labor Code speaks exclusively about the written form of the test condition, non-compliance with which entails the invalidity of such a condition.

The legislation of other countries resolves such issues and allows the establishment of a preliminary test. For example, in accordance with Art. 70 of the Labor Code of the Russian Federation, in the event that an employee is actually admitted to work without a written employment contract, a probationary condition can be included in the employment contract only if the parties have drawn it up in the form of a separate agreement before starting work.

When is a pre-test established?

As mentioned above, a preliminary test is an additional one, i.e. optional, the condition of the employment contract, which is established at the conclusion of the employment contract.

EXAMPLE 3

The organization hired a legal adviser. A week later, the head of the organization instructed personnel service sign an agreement with him on a preliminary test, and if the employee disagrees, dismiss him in accordance with paragraph 5 of Art. 35 TK.

In this example, a violation of labor law was committed. In accordance with the Labor Code, a preliminary test can be established exclusively at the conclusion of an employment contract, but not after.

In accordance with paragraph 5 of Art. 35 of the Labor Code, the basis for terminating an employment contract is the employee's refusal to transfer to work in another area together with the employer; refusal to continue work in connection with a change in essential working conditions, as well as refusal to continue work in connection with a change in the owner of property and reorganization (merger, accession, division, separation, transformation) of the organization. At the same time, the preliminary test is not classified by law as an essential working condition.

Usually, the employer initiates the conclusion of a contract with such a condition, but it is possible that it is the employee who is interested in concluding a contract with a preliminary test condition and will himself offer to include such a condition in the contract. This condition will be especially useful when concluding a contract. After all, the employee does not have the right to terminate it by own will, and when the condition for a preliminary test is included in it, he has an additional reason for dismissal, which the employee can use.

Thus, the condition of a preliminary test is included in the employment contract only if both parties agree, but at the suggestion of any of them.

EXAMPLE 4

A limited liability company is hiring a new employee for the position of a specialist. The head of the department suggested setting up a preliminary test for the employee. However, it is planned to conclude a contract with him, in connection with which the question arose whether it was legitimate to include a preliminary test clause in the contract.

The condition of a preliminary test can be included not only in an open-ended employment contract, but also in a contract. It can also be provided as a condition of a fixed-term employment contract that is not a contract.

Article 28 of the Labor Code establishes that a preliminary test at the conclusion of an employment contract is not established for:

employees under the age of eighteen;

young workers (employees) after graduating from institutions providing vocational education;

young professionals after graduation from institutions providing secondary specialized and higher education;

disabled people;

temporary and seasonal workers;

when transferring to work in another area or to another employer;

in other cases provided for by law.

It must be taken into account that the list of cases provided for by this article, when the test is not established, is not closed.

This material is published in part. The full material can be read in the magazine "Personnel Department" No. 6 (101), June 2009. Reproduction is possible only with

As follows from Part 1 of Article 28 of the Labor Code, the condition of a preliminary test can be included in the employment contract in order to verify the compliance of the employee with the work assigned to him, however, in my opinion, the inclusion of the above condition in the employment contract not only allows the employer to verify the compliance of the employee, but and allows the employee to "check" the employer, tk. article 29 of the Labor Code allows the employee to terminate the employment contract during the probationary period by notifying the employer in writing three days in advance. Moreover, the employee is not obliged to explain the reasons that served as the basis for the decision to terminate the employment contract.

It should be remembered that the inclusion of a preliminary test condition in an employment contract is possible only by agreement of both parties, and also that, in accordance with Part 5 of Article 28 of the Labor Code, a preliminary test is not established when concluding an employment contract:

For employees under the age of eighteen;

For young workers (employees) upon graduation from institutions providing vocational education;

For young professionals upon graduation from institutions providing secondary specialized and higher education;

For invalids;

For temporary and seasonal workers;

When transferring to work in another area or to another employer;

When hiring on a competitive basis, according to the results of elections;

In other cases provided for by law.

In accordance with Part 4 of Art. 28 of the Labor Code, the condition for a preliminary test must be provided for in the employment contract. Consequently, the absence in the text of the employment contract of a condition on a preliminary test indicates that the employee was hired without a preliminary test.

Given the fact that the terms of the employment contract are primary in comparison with other documents of the employer, the issuance of an order for employment with a preliminary test in the absence of this condition in the employment contract also allows us to conclude that the employee was hired without a preliminary test, conversely, an employee will be considered hired with a preliminary test condition if the employment contract contains this condition, but the order does not.

In accordance with Part 3 of Art. 28 of the Labor Code, the preliminary test period should not exceed 3 months, not counting periods of temporary disability and other periods when the employee was absent from work. specific deadline preliminary test is established by agreement of the parties. For certain categories of workers, the period of preliminary testing may differ from the generally established one. Thus, in accordance with the Law of the Republic of Belarus "On public service in the Republic of Belarus" a preliminary test with civil servants is established for a period of 3 to 6 months.

In part 3 of Art. 28 of the Labor Code, only one case of an employee’s absence from work is given, however, the periods when the employee carried out state or public duties, periods of the employee being on short-term leave without pay, which the employer is obliged to provide to the employee (Article 189 of the Labor Code), the employee being on leave to pass entrance exams, the employee being on leave without pay for family and household and other valid reasons, provided by agreement between the employee and the employer (Article 190 of the Labor Code), etc.

In accordance with Article 29 of the Labor Code, each of the parties has the right to terminate the employment contract with a preliminary test:

1) before the expiration of the preliminary test period, by notifying the other party in writing three days in advance;

2) on the day of the expiration of the preliminary test period.

In this case, the employer is obliged to indicate the reasons that served as the basis for recognizing the employee as having failed the test. The employee has the right to appeal against the decision of the employer in court.

It should be noted that a notice of impending dismissal must be made exclusively in writing. If the employee warns the employer orally about the upcoming dismissal and leaves work after 3 days, the employer will have grounds for dismissing this employee for absenteeism without good reason under paragraph 5 of Article 42 of the Labor Code. If the employer does not notify the employee in writing about the upcoming dismissal, the employee will have the right to appeal against the decision made by the employer, which will give grounds for changing the date of dismissal. employment contract trial minor

When an employee is dismissed due to failure to pass the probationary period, the dismissal order must refer to Article 29 of the Labor Code, and not to paragraph 7 of Part 2 of Article 35 of the Labor Code, because article 29 of the Labor Code is a special rule for the dismissal of an employee on the above basis.

If the employee passes the preliminary test period, the conclusion of a new labor contract with the employee is not required, the employee continues to work on the terms of the previously concluded labor contract. Also, it is not required to issue any additional orders, instructions, etc.