Employment contract with the director of the enterprise. Employment contract with the head. Termination of the employment contract with the head of the organization

The employment contract with the director is a standard personnel document, after all, even the CEO is the same employee as the others. However, the nature of labor relations with the employer is somewhat different. The work of a leader is associated with greater responsibility than the labor function of an ordinary employee. He manages the company and is responsible for his actions both legally and financially. How to make such a document without errors?

Despite the high position of the leader, the conditions labor contract with it do not differ much from the typical clauses of standard agreements. Let us examine in more detail the features of the design of such an agreement. At the end of the article you will find sample agreements. The form is not unified, there is no need to copy a standard form, you can act and change the conditions according to the purposes of hiring an employee for a position.

Position of the director of the organization

A director is the head of a small firm or a huge corporation. This is an individual who assumes the powers of the executive body of the organization, regardless of its size. The position of the head does not always bear the name "director". Other names may appear in the agreement: the president of the company, the head of the corporation, the general director. It is important that the name in the contract sound the same as in the founding documents of the company. The number of executives hired by the organization and responsible for various technical and production areas may consist of two or three persons. In this case, the leaders of narrower areas are subject to the orders of the higher leadership (usually the general).

Features of concluding an agreement with a director

The relations of the employer company and its manager are built according to the rules of the Labor Code, laws of the Russian Federation and constituent entities of the Russian Federation, regulations local authorities, constituent documents and local acts of the company. The function of the employer can only be performed by a legal entity, not an individual. This is the main difference from agreements with ordinary employees. But there are other features as well. Let's take a closer look.

Mandatory conditions

The contract with the managing person is concluded in writing in two copies. The agreement is signed by the employee (future leader) and the owner of the company (founder) or a representative of the general meeting of shareholders.

Mandatory items that are present in all types of agreements (not only with the head):

• details of the parties: full name and passport details of the employee, the name and details of the legal entity;
• date of conclusion;
• place of detention (address);
• job title;
• description job duties;
• payroll information;
• condition on probationary period(in the presence of);
• compensation information.

If the condition of the probationary period is not included in the agreement, then it is considered that the manager has been accepted for the position without a test.

Conditions that apply only in contracts with executives:

• if wages exceed 25% of the value of the company's assets, then the contract is approved by an advisory body (meeting of founders, board of directors);
• the minimum amount of compensation upon termination of the agreement with the head is not less than the amount of three months' earnings;
• a clause on non-disclosure of commercial secrets and a measure of liability must be included in the agreement;
• paragraph about liability it is not necessary to enable it, it comes by default.

Competition, election or appointment

The leader takes office in the following ways:

• there is a competition;
• elected at a meeting of founders or the board of directors;
• appointed by the founder personally;
• other.

It is difficult to draw an independent conclusion from the norms of the Labor Code of the Russian Federation. Officials of departments and departments - Rostrud, the Ministry of Finance, the Federal Tax Service - have already given many explanations on this matter, periodically changing their position. The Letter of the Ministry of Finance dated March 15, 2016 No. 03-11-11 / 14234 states that it is impossible to sign an employment contract in such a situation. The Ministry indicates that labor relations are formalized with the sole founder not by agreement, but by a written decision, therefore, a sample agreement with the director, if the founder and director are the same person, is a violation.

But it is worth remembering that the clarification of the ministry is not a legal act, and therefore has no legal force. Citizens have the right to interpret the law differently. The Labor Code of the Russian Federation does not contain a direct ban on the execution of an employment contract with the founder, but there is no permissive norm either. In the list of persons who are not covered by labor law, founding general manager is not included, which means that a sample employment contract with a director, if he is the only founder, is still quite legitimate. Therefore, as an employee, he is endowed with all the rights and obligations that are established by the Labor Code of the Russian Federation. The Federal Law on LLC also does not prohibit allowing oneself to work. Experts believe that signing an agreement with a sole founder will not create problems. On the contrary, the absence of a contract can lead to fines during inspections. Moreover, an employment contract with the director of an LLC is necessary if he is one of the founders.

Since the code contains no obstacles to concluding an agreement with itself, the only member of the Society signs twice:

• as an employee;
• and as a representative of the employer.

A sample employment contract with the general director of an LLC - he is also the founder - may contain the following wording: “LLC (OJSC) Inter, referred to as the Employer, represented by the sole participant Viktor Petrovich Trushkin, acting on the basis of the Charter and decision No. 1 dated 02.05. 2016, on the one hand, and Trushkin Viktor Petrovich, referred to as the "Worker", on the other hand, have entered into this employment contract on ... ". You can download a sample employment contract with the director of an LLC (he is also the founder) on our website - links to various document options are given at the end of the article.

Employment contract with the director of a state institution

When applying for the position of the head of a state or municipal institution, in addition to the mandatory passport, work book, TIN, according to article 275 of the Labor Code of the Russian Federation, the citizen provides:

• certificate of income and property;
• information on income, property (debts and obligations) of the spouse and minor children.

This information is then resubmitted every year.

The rules for providing such information are regulated by Government Decree No. 208 of 03/13/2013.

Applying for the position of a manager state enterprise associated with another feature. When hiring the head of a private firm, the contract can be drawn up in any form. The main thing is to take into account the requirements of the law, and by filling the content with conditions, you can give free rein to your imagination. But a contract with the head of state or municipal organization, unlike private, is not compiled arbitrarily. It is concluded on the basis of a standard form approved by Government Decree No. 329 dated April 12, 2013.

Additional grounds for termination of the contract

In addition to the general grounds for termination, which apply to all employees, there are additional ones that apply only to managers. According to article 278 of the Labor Code of the Russian Federation, you can terminate an agreement with a manager:

• upon removal of the head of the debtor company under the bankruptcy law (FZ 127 of 10/26/2002);
• the decision of the authorized body or the owner of the company to terminate the contract;
• on the grounds prescribed in the agreement (usually these are clauses on violation of official duties or failure to perform labor functions).

When an employer cannot fire a director

The list of additional grounds for terminating the relationship with the manager gives the impression that the employer can terminate the contract at any time at will. But it is not so. Like any other employee, the employer does not dismiss the manager if it is:

• a pregnant woman (except in the event of liquidation of the company);
• a woman with a child under 3 years old;
• single mother with a child under 14 or a disabled child under 18;
• a person who is raising a child under 14 or a disabled person under 18 without a mother;
• the sole breadwinner of a child under 3 years old in a family with three or more children or a disabled person under 18 years old.

Termination of the contract with these persons is possible only on special grounds (

Employment contract (relationship)

with the leader

Labor law Russian Federation reasonably identifies the head of the organization as special kind hired worker. The reason for this separation is the specificity of the manager's labor function, which consists in managing the organization, as well as representing the interests of the organization in relations with third parties.

In the article, we consider the features of labor relations with the head of the organization.

Features of labor regulation of the head of the organization are regulated by Chapter 43 Labor Code Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation).

According to Article 273 of the Labor Code of the Russian Federation, the head of an organization is an individual who, in accordance with the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation, laws and other regulatory legal acts of the constituent entities of the Russian Federation, regulatory legal acts of local governments, founding documents legal entity (organization) and local regulations manages this organization, including performing the functions of its sole executive body.

The same article determines that the norms of Chapter 43 of the Labor Code of the Russian Federation apply to the heads of organizations, regardless of their organizational and legal forms and forms of ownership, except in cases where:

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

- the management of the organization is carried out under an agreement with another organization (managing organization) or individual entrepreneur(manager).

Thus, the norms of Chapter 43 of the Labor Code of the Russian Federation do not apply, in particular, to the head of an organization who is the sole participant (founder), member of the organization, owner of its property. In this regard, the question arises, is it possible to conclude an employment contract with such a leader? In order to answer, let's turn to the letter of Rostrud dated March 6, 2013 No. 177-6-1. The letter says that the basis of the norm of Article 273 of the Labor Code of the Russian Federation is the impossibility of concluding an agreement with oneself, since the signing of an employment contract by the same person on behalf of the employee and on behalf of the employer is not allowed. A similar point of view was expressed in the letter of the Ministry of Health and Social Development of Russia of August 18, 2009 No. 22-2-3199 and in the letter of Rostrud of December 28, 2006 No. 2262-6-1.

It should be noted that Rostrud specialists in a letter dated March 6, 2013 No. 177-6-1 also explain that the parties to labor relations are the employee and the employer.

An employee is a natural person who has entered into an employment relationship with an employer. An employer is an individual or a legal entity (organization) that has entered into an employment relationship with an employee.

An employment contract is an agreement between an employer and an employee, that is, a bilateral act. In the absence of one of the parties to the employment contract, it cannot be concluded.

Thus, labor legislation does not apply to the relations of the sole participant of the company with the company founded by him.

The sole member of the company in this situation must, by his decision, assume the functions of the sole executive body - the director, CEO, president and so on. Management activities in this case, it is carried out without the conclusion of any contract, including labor.

Legal basis for regulating the work of the head of the organization

Based on Article 274 of the Labor Code of the Russian Federation, the rights and obligations of the head of an organization in the field of labor relations are determined by the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation, laws and other regulatory legal acts of the constituent entities of the Russian Federation, regulatory legal acts of local governments, constituent documents of the organization , local regulations, labor contract.

Conclusion of an employment contract with the head

organizations

To begin with, we note that an employment contract with the head of the organization can be concluded both for an indefinite and for certain period(fixed-term employment contract). If a fixed-term employment contract is concluded with the head, then the term of its validity on the basis of Article 275 of the Labor Code of the Russian Federation is determined by the constituent documents of the organization or by agreement of the parties. Note that the validity period, as well as the circumstances (reasons) that are the basis for concluding an agreement for a certain period, in accordance with Part 2 of Article 57 of the Labor Code of the Russian Federation, must be indicated in the employment contract.

Labor legislation and other regulatory legal acts containing norms labor law, or the constituent documents of the organization may establish procedures prior to the conclusion of an employment contract with the head of the organization (holding a competition, election or appointment to a position, etc.). This is stated in part 2 of article 275 of the Labor Code of the Russian Federation.

So, for example, in relation to the leader unitary enterprise established that he is appointed by the owner of the property this enterprise. This is indicated by Article 21 of the Federal Law of November 14, 2002 No. 161-FZ "On State and Municipal Unitary Enterprises" (hereinafter - Law No. 161-FZ). Note that the appointment of heads of federal state unitary enterprises is carried out on a competitive basis, which follows from paragraph 3 of Decree of the Government of the Russian Federation dated March 16, 2000 No. 234 "On the procedure for concluding employment contracts and certification of heads of federal state unitary enterprises" (hereinafter referred to as Decree No. 234 ). The procedure for holding a competition for filling the position of the head of a federal state unitary enterprise, the conditions for participation in it, the procedure for determining the winner of the competition are established by the Regulation approved by Resolution No. Federation of June 20, 2011 No. 1060-r "On approval of the list of federal state unitary enterprises in respect of which a special procedure has been established for the adoption of decisions by federal executive bodies."

The sole executive body of the company with limited liability(CEO, President) is elected general meeting members of the company, if the company's charter does not refer this issue to the competence of the board of directors ( supervisory board) companies (Article 40 of the Federal Law of February 8, 1998 No. 14-FZ "On Limited Liability Companies" (hereinafter - Law No. 14-FZ)).

Sole executive body joint-stock company(director, general director) is elected by the general meeting of the company, if the charter of the joint-stock company does not refer these issues to the competence of the board of directors (supervisory board) of the company (Article 69 of Federal Law No. 208-FZ of December 26, 1995 "On Joint-Stock Companies" (hereinafter - Law No. 208-FZ)).

It should be said that in the general case, an employment contract with a manager is concluded on the basis of an independently developed contract form containing all the requirements established by Article 57 and Chapter 43 of the Labor Code of the Russian Federation.

However, an employment contract with the head of a state (municipal) institution in accordance with Part 3 of Article 275 of the Labor Code of the Russian Federation must be concluded on the basis of a standard form of an employment contract approved by the Government of the Russian Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations. Note that today such a standard form is approved by the Decree of the Government of the Russian Federation dated April 12, 2013 No. 329 "On standard form employment contract with the head of the state (municipal) institution.

Note that a federal state unitary enterprise, in order to conclude an employment contract with a manager, can take as a basis an employment contract in the form developed by the Ministry of Economic Development of Russia in Order No. 49 dated March 2, 2005 "On approval of an exemplary labor contract with the Head of a federal state unitary enterprise."

Despite the special status of the head of the organization, when concluding an employment contract, it is necessary to comply with the requirements of the law, which apply to all employees, regardless of their position.

Article 65 of the Labor Code of the Russian Federation establishes that an employee, when applying for a job, must present certain documents (passport, work book, and others).

In addition, if a citizen enters (applies) for the position of the head of a state (municipal) institution, he is obliged to provide information about his income, property and property obligations, as well as income, property and property obligations of his spouse and minor children. This is indicated by part 4 of article 275 of the Labor Code of the Russian Federation.

Please note that the head of the state (municipal) institution hired is obliged to submit this information annually in the future.

The procedure for submitting such information is approved by the Government of the Russian Federation, a regulatory legal act of a constituent entity of the Russian Federation or a local government body, depending on who is in charge of the institution in which the citizen enters the position of head (in which the citizen, as a head, is hired).

Please note that today the procedure for the submission by a citizen applying for a job as the head of a federal state institution, as well as the head of a federal state institution, information about their income, property and property-related obligations and income, property and property-related obligations of their spouse (spouse) and minor children is established by the Rules approved by the Decree of the Government of the Russian Federation dated March 13, 2013 No. 208 "On approval of the Rules for the submission by a person applying for a position of head of a federal state institution, as well as the head of a federal state institution, information about their income, about property and obligations of a property nature and on income, property and obligations of a property nature of their spouse and minor children.

The work of the head of the organization part-time

According to Article 276 of the Labor Code of the Russian Federation, the head of an organization can work part-time for another employer, but 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.

So, for example, paragraph 3 of Article 69 of Law 208-FZ states that the combination of positions in the management bodies of other organizations by a person exercising the functions of the sole executive body of the company (director, general director) is allowed only with the consent of the board of directors (supervisory board) of the company. Note that the combination in this case, on the basis of Article 60.1 of the Labor Code of the Russian Federation, is considered as a combination job, since working for another employer is one of the signs of an external part-time job.

Please note that the permission to work part-time with another employer must be fixed by the organization either in the organization's charter or in the manager's employment contract, which is signed by an authorized person.

The charter of the organization may establish a ban on the implementation of paid activities in other organizations. For example, by virtue of paragraph 2 of Article 21 of Law No. 161-FZ, the heads of a unitary enterprise are not entitled to engage in other paid activities in government bodies, local government, commercial and non-profit organizations, except for teaching, scientific and other creative activities.

Please note that the head of the organization cannot be a member of the bodies exercising the functions of supervision and control in this organization.

Financial responsibility of the head of the organization

The head of the organization bears full liability for direct actual damage caused to the organization, which follows from Article 277 of the Labor Code of the Russian Federation. Recall that direct actual damage is understood as a real decrease in the employer’s cash property or deterioration in the condition of the specified property (including property of third parties held by the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to incur costs or excessive payments for the acquisition, restoration of property or for compensation for damage caused by the employee to third parties (Article 238 of the Labor Code of the Russian Federation).

Please note that the full liability of the head of the organization for damage caused to the organization comes by force of law, therefore, the employer has the right to demand compensation for damage in full, regardless of whether the employment contract with this person contains a condition on full liability or not. This is indicated by paragraph 9 of the resolution of the Plenum Supreme Court of the Russian Federation dated November 16, 2006 No. 52 "On the application by the courts of legislation governing the material liability of employees for damage caused to the employer."

In this connection, the condition of full liability can be included in the manager's employment contract as informational information.

It should be noted that the employer does not need to additionally conclude an agreement with the head on full individual liability, since his responsibility is provided for when performing the functions of the sole executive body.

In accordance with part 2 of article 277 of the Labor Code of the Russian Federation, in cases provided for by federal laws, the head of the organization compensates the organization for the losses that he caused by guilty actions.

Thus, the obligation to compensate for losses caused by guilty actions (inaction) is assigned, in particular, to the sole executive body of a joint-stock company (Article 71 of Law No. 208-FZ), the sole executive body of a limited liability company (Article 44 of Law No. 14-FZ) .

In this case, the calculation of losses is carried out in accordance with the norms provided for by Article 15 of the Civil Code of the Russian Federation.

Additional Grounds for Termination

employment contract with the head of the organization

In addition to the grounds provided for by the Labor Code of the Russian Federation and other federal laws, an employment contract with the head of an organization in accordance with Article 278 of the Labor Code of the Russian Federation is terminated on the following grounds:

1) in connection with the dismissal of the head of the organization - the debtor in accordance with the legislation on insolvency (bankruptcy).

The procedure for removing the head of the debtor from office is regulated by Article 69 of the Federal Law of October 26, 2002 No. 127-FZ "On Insolvency (Bankruptcy)" (hereinafter - Law No. 127-FZ).

2) in connection with the adoption by the authorized body of the legal entity, or the owner of the property of the organization, or the authorized owner of the person (body) of the decision to terminate the employment contract. The decision to terminate the employment contract on the specified grounds in relation to the head of the unitary enterprise is taken by the body authorized by the owner of the unitary enterprise in the manner prescribed by Resolution No. 234.

Please note that termination of the employment contract at the initiative of the employer is not allowed:

- with the head - a pregnant woman, except in the case of liquidation of the organization (part 1 of article 261 of the Labor Code of the Russian Federation, paragraph 26 of the decision of the Plenum of the Supreme Court of the Russian Federation dated January 28, 2014 No. 1 "On the application of legislation regulating the labor of women, persons with family responsibilities and minors" );

- with a manager belonging to one of the categories of persons listed in part 4 of article 261 of the Labor Code of the Russian Federation:

- to women who have a child under the age of 3 years;

- to single mothers raising a child under the age of 14 or a disabled child under the age of 18 (Ruling of the Supreme Court of the Russian Federation dated March 21, 2014 No. 66-KGpr14-2);

- to persons raising without a mother a child under the age of 14 or a disabled child under the age of 18;

- to parents (other legal representatives of the child) who are the sole breadwinners of a child under the age of 3 in a family with three or more children under 14 or a disabled child under the age of 18, unless the other parent (other legal representative of the child) consists of labor relations.

The employer has the right to terminate the employment contract with these persons only on the grounds provided for in paragraphs 1, 5 - 8, 10 or 11 of part 1 of article 81 or paragraph 2 of article 336 of the Labor Code of the Russian Federation;

- during a period of temporary incapacity for work or when the head is on vacation, except in the event of liquidation of the organization (part 6 of article 81 of the Labor Code of the Russian Federation, paragraph 50 of the decision of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation") ;

3) on other grounds provided for by the employment contract. That is, an employment contract can provide for additional (not provided for by the Labor Code of the Russian Federation and other federal laws) grounds. As a rule, in this case, the parties provide grounds that are directly related to non-performance or improper performance of the head of the organization of their duties. So, for example, in paragraph 6.3 of an exemplary labor contract with the head of a federal state unitary enterprise, approved by Order of the Ministry of Economic Development of Russia dated March 2, 2005 No. 49, it is determined that the labor contract can be terminated at the initiative of the Executive Authority on the grounds provided for by the legislation of the Russian Federation on labor, including in accordance with paragraph 3 of Article 278 of the Labor Code of the Russian Federation on the following additional grounds:

a) non-fulfillment through the fault of the Head of the indicators approved in the prescribed manner economic efficiency enterprise activities;

b) failure to ensure the conduct of audits of the enterprise in the prescribed manner;

c) failure to comply with the decisions of the Government of the Russian Federation, federal executive bodies;

d) making transactions with property that are under the economic jurisdiction of the enterprise, in violation of the requirements of the law and the special legal capacity of the enterprise determined by the Charter of the enterprise;

e) the presence, through the fault of the Head, of more than three months of salary arrears at the enterprise;

f) violation through the fault of the Head, established in the manner prescribed by the legislation of the Russian Federation, of labor protection requirements, which resulted in a court decision on the liquidation of the enterprise or the termination of the activities of its structural unit;

g) failure to ensure the use of the property of the enterprise, including real estate, for its intended purpose in accordance with the types of activities of the enterprise established by the Charter of the enterprise, as well as the failure to use budgetary and extra-budgetary funds allocated to the enterprise for the intended purpose for more than three months;

h) disclosure by the Head of information constituting an official or commercial secret, which became known to him in connection with the performance of his official duties;

i) violation of the requirements of the legislation of the Russian Federation, as well as the Articles of Association of the enterprise in terms of reporting information about the presence of interest in transactions, including in the circle of affiliated persons;

j) violation of the ban on employment established by the legislation of the Russian Federation and clause 3.1.3 of Order No. 49 certain types activities;

k) ____________ (if necessary, indicate other additional grounds for dismissal).

Note that some exemplary wording grounds for dismissal can be used when concluding an employment contract not only with the heads of federal state unitary enterprises, but also with the heads of non-governmental organizations.

Guarantees to the head of the organization in case of termination of the employment contract

According to Article 279 of the Labor Code of the Russian Federation, if the employment contract with the head of the organization is terminated in accordance with paragraph 2 of Article 278 of the Labor Code of the Russian Federation, then in the absence of guilty actions (inaction) of the head, he is paid compensation in the amount determined by the employment contract, but not less than three times the average monthly earnings.

Thus, the specific amount of the severance pay is established in the employment contract or additional agreements to him.

Note!

If, under paragraph 2 of Article 278 of the Labor Code of the Russian Federation, managers are dismissed public corporations, state companies, business companies, more than 50% of shares (stakes) in authorized capital which is in state or municipal ownership, as well as heads of state off-budget funds of the Russian Federation, state or municipal institutions, state or municipal unitary enterprises, they are paid compensation in the amount of three times the average monthly salary, provided that they did not commit guilty actions (inaction). This is indicated by article 279, parts 1, 2 of article 349.3 of the Labor Code of the Russian Federation.

Early termination of the employment contract at the initiative of the head of the organization

By virtue of Article 280 of the Labor Code of the Russian Federation, the head of the organization has the right to terminate the employment contract ahead of schedule. In this case, he must notify the employer (the owner of the property of the organization, his representative) about this in writing not later than one month. Accordingly, the notice period in such a case is at least one month.

According to Article 273 of the Labor Code, the head of an LLC, represented by the president or general director, is recognized as the only executive body managing the company and personnel. He also has the status of an employee of the organization and is subject to labor laws. To fix the powers of the head, an employment contract is concluded with the general director of the LLC, a sample of which is presented below.

The document is drawn up in accordance with the norms of Article 57 of the Labor Code and at the same time reflects all the nuances and features of the status of the general director. That is, employment contract with director(sample below in the article) uses general rules and has a structure similar to a conventional labor agreement.

The heading of the document indicates the date and place of the conclusion of the contract, the name of the organization, its TIN, the full name of the representative of the institution and the data of the document on the basis of which it acts. Then you need to indicate the full name and passport details of the person accepted for the managerial position. In the body of the document without fail indicate:

• place of work of the head;
• lists common official duties;
• date of entry into office;
• working conditions;
• remuneration regime: the amount of salary, the procedure for calculating and paying salaries and other payments;
• rest regime: days off and the procedure for granting vacation;
• conditions of compulsory social insurance;
• period of the contract. This period is determined by the constituent documents or by agreement of the parties.

A sample of filling out an employment contract with the director of an LLC

Nuances when concluding a document

Since the general director is the legal representative of the enterprise, carries out activities on his behalf and in the interests of the institution, the position should be prescribed identically to the definition set out in.

If the director is hired with, this must be indicated in the contract. For leadership positions? according to the law, it is up to 6 months.

Payroll should also be given special attention. If the manager's salary exceeds 25% of the total value of the institution's assets, then this contract is recognized big deal, and must be approved by the board of directors or a meeting of founders.

In the employment contract, you can specify the amount of compensation payments in the event of termination of cooperation. The sum of the manager's severance pay must be equal to at least three salaries.

One of the main clauses of the contract is the non-disclosure of commercial secrets and liability for the dissemination of classified information.

When drawing up a document, the question may arise as to whether it is necessary to make a clause on the liability of the head. Lawyers believe that this is not necessary, since the director is considered a materially responsible person by default.

If the sole founder and head are the same person

Labor legislation does not directly prohibit concluding an employment contract with the head if he is a co-founder. But what if he is the only founder. This situation does not have an unequivocal answer, and various departments, such as the Ministry of Finance, Rostrud, extra-budgetary funds, express opposite opinions on this issue.

Representatives of departments believe that signing an agreement with oneself in the person of the head and founder is impossible. They are based on the norms of the law set out in paragraph 3 of Art. 182 Civil Code RF. However, this legislative act does not apply to labor relations. Nevertheless, representatives of Rostrud expressed the opinion that an employment contract is a bilateral agreement and in the absence of one of the parties, the conclusion of such a contract is impossible.

It follows from this that the signing of an employment contract between an employer and an employee in the same person is not allowed. The Ministry of Finance adheres to the same point of view and has forbidden to take into account the amounts wages and social contributions to the CEO.

Having decided to conclude an agreement with yourself as a leader who is a sole founder, you need to consider:

• When drawing up an agreement, the parties are a legal entity - an employer and an individual - an employee. When implementing economic activity the institution acts as a legal entity, and not on behalf of the founders, so you literally conclude an agreement with the company, and not with yourself.
• Nowhere in the Labor Code is there a direct prohibition on the execution of such a contract. Article 11 contains a list of persons to whom labor legislation does not apply, but the director, who is the sole founder, is not indicated there.
• Federal Laws No. 255-FZ of December 29, 2006 and No. 167-FZ of December 15, 2001 state that pension and social insurance contributions are paid from all employees, including from the wages of directors who are the sole founder OOO.

In the Tax Code of the Russian Federation in paragraph 21 of Art. 270 stipulates that when calculating the expense item, it is impossible to include remuneration of the management, except for those paid under an employment contract. It follows from this that the implementation of the write-off of expenses for the salary of the director is possible.

Sample and rules of an employment contract with the commercial director of LLC

A commercial director is a specialist in charge of the sales department, an employee who carries out activities related to the procurement, logistics and marketing of the enterprise. This employee takes office and is dismissed by the Order of the general director or president of the institution. An employment contract with such an employee belongs to the category of contracts with managers and is drawn up according to all the rules inherent in this group. The document must contain:

• subject of the contract;
• identifying data of the parties;
• validity period of the document;
• information about the probationary period, if any;
• date of entry into office;
• rights and obligations of the employer and employee;
• mode of work and rest;
• conditions for accrual and payment of wages and other incentive payments;
• situations and cases that make it possible to amend the contract or terminate it.

The body of the document must indicate the necessary knowledge and skills for the candidate for the position, prescribe job responsibilities. For full disclosure of information, additional clauses on non-disclosure of trade secrets and others may be included in the agreement.

Employment contract with the executive director of LLC

The executive director carries out activities related to the management of the organization, settlement production processes in order to maximize profits. An employment agreement is drawn up in accordance with labor legislation, taking into account the requirements for the category of contracts with managers. The structure of the contract is completely identical to the previous example.

The main contract may be accompanied by a work schedule, an agreement on non-disclosure of commercial secrets and job description. All changes to the employment contract are made by drawing up an Additional Agreement.

Who signs the contract

In order to determine who has the right to endorse an employment contract with the head, it is necessary to find out which body is authorized to choose the general director. Law No. 14-FZ of February 8, 1998 states that the head is elected at a general meeting of participants, but in practice the board of directors can also make a decision. Such powers are disclosed in the Articles of Association of the LLC.

If a director is elected at a general meeting, the contract is signed by the chairman or a certain member of the LLC is elected to sign the contract with the head.

In the second case, the contract is signed by the employer by the chairman of the board of directors or another authorized person - this can be either a member of the board or a simple participant.

If the contract is drawn up by the director, who is the sole founder, then he puts signatures from both parties.

Rupture of the contract

Termination of the employment contract with the head entails the emergence of many controversial issues. The dismissal of a director may be common grounds set out in the Labor Code of the Russian Federation, and on special ones, indicated in article 278 of the Labor Code. Special circumstances arise from the specifics of a managerial position. So, in what cases can a director be fired:

• by decision of the new owner of the institution within three months from the date of entry into ownership;
• if the activity carried out by the director resulted in the non-preservation or misuse of assets, caused damage to property, losses;
• with regular violations of official duties;
• in the cases provided for in Art. 81 and Art. 278 of the Labor Code of the Russian Federation (disability, termination of the contract, etc.);
• if at the general meeting it was decided to terminate cooperation with this person as a director.

It should be remembered that the legislation establishes increased responsibility for leadership positions. Article 277 of the Labor Code clearly states that the director is financially liable for the damage caused to the institution as a result of his actions.

Also, do not forget that upon dismissal of the general director without obvious violations, the employer is obliged to pay impressive compensation provided for in article 279 of the Labor Code of the Russian Federation.

The legal regulation of relations regarding the work of executive employees presents a certain difficulty, mainly because such employees simultaneously perform the functions of a representative of the employer in relation to other workers who are in labor relations with the organization.

Features of labor regulation of the head of the organization, as well as members of the collegial executive body of organizations are reflected in Chapter 43 of the Labor Code of the Russian Federation and a number of articles placed in other chapters. Thus, the legislator emphasizes that the head of the organization is an employee with a special status.

The head of an organization is an individual who, in accordance with the law, the constituent documents of a legal entity (organization) and local regulatory legal acts, manages this organization, including performing the functions of its sole executive body (Part 1 of Article 273 of the Labor Code of the Russian Federation).

Due to the dual legal status of the head of the organization, the employment contract concluded with him is unique and has a number of distinctive qualities.

1. CONCLUSION OF AN EMPLOYMENT CONTRACT
The procedure for concluding an employment contract with the head of the organization is relatively detailed and depends on the specific organizational and legal form of the legal entity.

Labor legislation and other regulatory legal acts containing labor law norms, or the constituent documents of the organization may establish procedures prior to the conclusion of an employment contract with the head of the organization (holding a competition, election or appointment to a position, etc.).

Thus, the formation of the executive bodies of a joint-stock company is carried out by decision of the general meeting of shareholders, if the company's charter does not refer this issue to the competence of the board of directors (supervisory board) of the company.

The head of a limited liability company is elected by the general meeting of participants for a period determined by the charter of the company. At the same time, the leader may not be elected from among its participants. The charter of the company may provide that the formation of executive bodies falls within the competence of the board of directors (supervisory board) of the company.

The above provisions on the procedure for concluding an employment contract with the head of a limited liability company
applicable to the situation of concluding an employment contract with the head of an additional liability company. The heads of state and municipal unitary enterprises are appointed by the owner of the property of the unitary enterprise. At the same time, on behalf of the Russian Federation or a constituent entity of the Russian Federation, the rights of the owner of the property of a unitary enterprise are exercised by bodies state power Russian Federation (subject of the Russian Federation), and on behalf of municipality- local self-government bodies. The appointment of heads of unitary enterprises is carried out on a competitive basis. This procedure is two-stage.

The first stage is carried out in the form of tests (in writing). At the second stage, proposals are considered for the enterprise’s activity program. Relatively recently, a rule has appeared that when hiring the head of an organization, it is mandatory to obtain information about him from a special register - this is due to the fundamental novelty of the Code of Administrative Offenses of the Russian Federation (CAO RF) introduced the new kind punishment is disqualification.

Special attention should refer to Article 14.23 of the Code of Administrative Offenses of the Russian Federation, which provides for liability in the form of an administrative fine for the implementation by a disqualified person of management activities legal entity, for concluding an agreement with a disqualified person for the management of a legal entity (50 minimum wages), as well as non-application of the consequences of terminating its actions (up to 1 thousand minimum wages).

When concluding a contract for the management of a legal entity, the person authorized to conclude the contract is obliged to request information on the presence of disqualification individual in the body maintaining the register of disqualified persons. The deadline for providing information contained in the register is 5 days from the date of receipt by the authorized federal body of the relevant request. Only after receiving this information is it possible to conclude an employment contract.

The specifics of the norms of the institution of an employment contract that regulate the work of the heads of the organization can be traced in the specifics of representation on behalf of the employer. The employment contract with the head on behalf of the joint-stock company is signed by the chairman of the board of directors (supervisory board) or a person authorized by him. On behalf of a limited company
the contract is signed by the person who chaired the general meeting of participants at which the head was elected, or a person authorized by the decision of the general meeting of participants of the company, or in certain cases the chairman of the board of directors (supervisory board). When concluding an employment contract with the head of a unitary enterprise, the employer is represented by the head of the relevant executive authority in charge of the unitary enterprise.

All terms of the employment contract are usually divided into mandatory and additional.

2.1. MANDATORY TERMS OF AN EMPLOYMENT CONTRACT
From the point of view of the general norms of the institution of an employment contract, an employment contract with the head of the organization must contain: the full name of the employee and the name of the employer who entered into the contract;

• information about the documents proving the identity of the employee;
• 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;
• information about the place and date of conclusion of this agreement, as well as all the mandatory conditions of any employment contract (part 2 of article 57 of the Labor Code of the Russian Federation).

The enumeration of these conditions would perhaps be redundant if it were not for individual features their content regarding the contract concluded with the head of the organization.
Like any employment contract, the contract with the manager must contain a condition about the place of work. In accordance with the latest
the wording of the Labor Code, specifying the place of work (indicating the structural unit) is an additional condition of the contract, but, given that we are talking about the head of the organization, indicate structural subdivision there is no need, since the leader leads the entire organization as a whole.

When specifying the labor function and the name of the position, it is necessary to take into account the requirements of the law and constituent documents. For example, in accordance with Article 40 of the Federal Law "On Limited Liability Companies", the sole executive and administrative body may be called the general director or the president. An inaccurate or arbitrary title of the position of the head of the organization may subsequently create difficulties in determining his status, powers, including in relations with public authorities or other business entities.

The start date condition is as mandatory as for any other worker, but you should have
in mind that when determining the date of commencement of work, it is necessary to take into account the term or date of expiration of the powers of the previous head. Naturally, this is also necessary in order to avoid dual power, as well as to prevent misunderstandings related to the execution of power and administrative powers, especially in the financial and economic sphere. In addition, an employment contract with a manager may be concluded for a period established by the constituent documents of the organization or by agreement of the parties (Part 2 of Article 59 and 275 of the Labor Code of the Russian Federation). Consequently, the contract contains a condition on the duration of its validity, indicating the grounds for concluding it on an urgent basis.

The terms of remuneration of the head also differ in the originality of their establishment in the employment contract. As a rule, the leader is set official salary and all kinds of additional payments and allowances, including incentives, like all other employees. However, the employment contract may contain conditions for additional financial incentives for the head of the organization. For example, the contract may contain a condition on the participation of the head in the distribution of part of the profit, the establishment of remuneration based on the results of the organization's work for the year as a percentage of net profit. If high economic indicators are achieved, the contract may provide for the right of the head to receive a part of the company's shares, etc. Currently, employment contracts with managers pay more and more attention to these issues. Thus, tasks are solved as increasing motivation to the maximum good governance property, and increasing labor productivity through an increase in the level of organization of labor and production.

Remuneration of the heads of organizations financed from federal budget, must be carried out in the manner and in the amount to be determined by the Government of the Russian Federation, in organizations financed from the budget of a constituent entity of the Russian Federation - by state authorities of the corresponding constituent entity of the Russian Federation, and in organizations financed from the local budget - by local governments (part 1 of article 145 TC RF).

The mode of working time and rest time of the head of the organization is also determined by the terms of his employment contract. The law prohibits contractually worsening the position of an employee in comparison with the current legislation. This prohibition is fully applied when determining the relevant section of the employment contract with the head of the organization, however, a number of comments can be made here. Since the functions of the manager include the organization of the work of other employees, this requires additional time expenditures, including those that go beyond the normal working hours established by law. Besides, working time of the head is difficult (if at all) to strict accounting and rationing. Therefore, the employment contract of the head, as a rule, provides for the establishment of irregular working hours. It would seem that everything is clear, but Article 101 of the Labor Code of the Russian Federation defines an irregular working day as a special regime, in accordance with which the employee, by order of the employer, if necessary, episodically performs his labor functions outside of their working hours. Naturally, with regard to the work of the manager, one does not have to talk about any order of the employer and illusory episodic nature: the manager not only organizes the work of others, but also organizes his own work, moreover, independently and in accordance with the goals and tasks set for him, related to the maximum effective work the entire organization.

Taking into account that the employment contract determines the features of the manager's working hours, it must undoubtedly contain special conditions regarding the time of rest, namely vacation. The vacation of the head consists, as usual, of the main and additional. The main annual paid leave may be established by the contract for a duration exceeding the usual 28 calendar days (extended main leave). The employer, taking into account his production and financial opportunities may establish additional annual paid leave for the head of the organization.

Besides, additional leave may be provided for irregular working hours and other special working conditions.

Also, these contracts often contain conditions on the amount of material assistance allocated to the head for the main paid leave for rest and treatment (including sanatorium and resort).

Characteristics of working conditions and the nature of work, as a rule, are omitted in the content of an employment contract with a supervisor
organizations as opposed to employment contracts with other employees. This, of course, is due to the absence of unfavorable production factors directly at the workplace. As for the costs of psychological and mental stress, they are traditionally offset by the presence in such an agreement additional conditions material and household character.

The condition on compulsory social insurance is also a prerequisite for any employment contract.

2.2. ADDITIONAL TERMS OF THE EMPLOYMENT CONTRACT

Additional terms of an employment contract with a manager can be either quite traditional, for example, a condition on a probationary period, or special, peculiar only to this type of employment contract.

An employment contract with a manager, as with any other employee, may contain a condition on a probationary period. However, a test for heads of organizations may be provided for up to six months (Part 5 of Article 70 of the Labor Code of the Russian Federation). At the same time, a test for employment cannot be established for persons elected to an elected position for paid work, and for persons entering a job through competition, therefore, it seems that the rules regarding a six-month probationary period for leaders of an organization practical application won't find.

The employment contract with the manager includes a condition on non-disclosure of legally protected secrets (state, commercial and official). Such a condition seems to be quite justified, since it is the manager, by the nature of his activity, who has unlimited access to any confidential information, the disclosure of which can lead to serious property damage.

The employment contract with the head of the organization must provide for his obligations to ensure the protection of the confidentiality of information owned by the organization and its counterparties, and responsibility for ensuring the protection of its confidentiality (part 6 of Article 11 of the Federal Law "On Trade Secrets"). The responsibility of the manager for the disclosure of trade secrets is stricter than that of other employees: the manager compensates for the losses caused to the organization. In this case, losses are determined in accordance with civil law (Part 7 of Article 11 of the Federal Law “On Trade Secrets”). However, it should be noted that this provision becomes invalid as of January 1, 2008 (Article 34 of Federal Law No. 231-FZ of December 18, 2006).

In addition to the types of compulsory social insurance common to all employees (pension, medical, etc.), more and more often, in an agreement with the head of an organization, one can also find conditions for additional (optional) insurance, for example, life and health insurance, accident insurance, etc. an employment contract may provide for insurance not only for the employee himself, but also for the immediate members of his family.

Employment contract with the director of LLC - sample this document is given in the Forms section at the beginning of the article - must be concluded in accordance with general provisions labor law regulating the procedure for formalizing legal relations arising between an employee and an employer. Below the reader will find information on how to prepare a draft employment contract concluded with the general director of an LLC, and will also receive a link to download a sample of a ready-made document.

We conclude an employment agreement with the director of LLC (general rules)

According to the provisions of paragraph 1 of Art. 40 federal law“On Companies…” dated February 8, 1998 No. 14, the general director of an LLC is considered its sole executive body. The choice of the person who will take this position is entrusted to the general meeting of the founders of the company (with the exception of situations where the adoption of such decisions passes into the competence of its board of directors).

To accept an individual for such a position, it is necessary to conclude an appropriate labor agreement with him. This is also indicated by Art. 274 of the Labor Code of the Russian Federation, according to which legal status director is established not only by the norms current legislation and internal organizational documents, but also the provisions of the employment contract. Signs an employment contract with the general director of the LLC, in accordance with paragraph 1 of Art. 40 FZ No. 14, chairman of the general meeting of owners of the enterprise or head of the existing board of directors.

The nuances of concluding an employment contract with the director - the sole founder

LLC is a form of small business that is very common among both successful entrepreneurs as well as among beginners. At the same time, quite often businessmen make the decision to register their own business on their own, without resorting to the help of partners. As a result, one person becomes the founder of the LLC, whose powers extend to all areas of enterprise management, including hiring personnel.

The sole owner of the company can take the position of its leader without concluding an employment contract. Indeed, in this case, he simply does not have anyone to sign an agreement with, since he cannot act simultaneously as an employer and an employee. This position is shared by the Ministry of Finance of the Russian Federation (letter No. 03-11-06/2/7790 dated February 19, 2015) and Rostrud (letter No. 177-6-1 dated March 6, 2013). The contract is a bilateral agreement, the participants of which assume certain obligations in relation to each other. In the case under consideration, the same person is assumed to be both parties to the contract - and this, according to representatives of departments, is unacceptable.

True, the information contained in the above documents is only advisory in nature. Moreover, the absence of an agreement can be perceived by the tax authorities as an attempt to evade taxes: if the agreement is not concluded, personal income tax is not withheld from the income of the director as an employee of the organization, and mandatory social contributions are not received into off-budget funds. However, at the same time, the founder pays tax on the dividends he receives to the budget, so it is impossible to make an unambiguous conclusion that he does not fulfill his duties as a taxpayer without concluding an employment contract.

How to conclude an employment contract with the director - the sole founder?

Based on the foregoing, we can conclude that the decision on the need to conclude an employment contract can be made by the founder of the company. The legislator does not give a clear answer to the question of whether it is mandatory to do this or not.

If the owner of the company decides to document his labor duties, he will need to draw up an agreement in accordance with the requirements of current legislation. At the same time, Art. 39 of the Federal Law No. 14 indicates that in an LLC, the founder of which is one person, all decisions that the general meeting of participants in the company should make are entitled to be made by this sole founder.

This means that in order to formally approve himself as CEO, he will have to:

1. Prepare a document containing the decision on the appointment of the CEO and approve it.
2. Sign the contract on behalf of the employer and on behalf of the employee.

The content of the employment contract with the director of the LLC

Neither the procedure for drawing up an employment contract with the general director of an LLC, nor the requirements for its content are established by the legislator. This means that when preparing a document, you can use a standard form developed at the enterprise. General requirements to an employment contract concluded with employees of any organization are established by the provisions of Art. 57 of the Labor Code of the Russian Federation (details on the nuances of concluding such an agreement can be found in the article: "Sample of a standard employment contract with an employee 2018 - 2019 (download the form)" .

According to the provisions of this article, the finished contract to be signed by the parties must include clauses that indicate:

• Full name of the employee being hired (in this case, the general director), as well as the details of the document proving his identity;
• name of the employing organization;
• subject of the contract;
• the rights and obligations of the parties that have entered into it;
• contract time. In the event that the contract is urgent, it indicates the date of termination of the director's labor duties (according to the provisions of part 1 of article 275 of the Labor Code of the Russian Federation, it is determined by the organization's charter or the agreement reached by the parties);
• the regime of work and rest of the employee;
• guarantees and compensations provided to the director in the course of his work;
• a condition on the liability of the director (according to the provisions of Article 277 of the Labor Code of the Russian Federation, the general director of the enterprise bears full financial responsibility for the results of his work).

In addition to the above mandatory conditions the employment agreement may include additional (optional), although this is possible only if they do not infringe on the rights of the director (part 4 of article 57 of the Labor Code of the Russian Federation).

They can be conditions:

• on probation (according to Article 70 of the Labor Code of the Russian Federation, its duration can be up to six months);
• non-disclosure of any secret (commercial, official, etc.);
• providing benefits to the employee and/or members of his family, etc.

As you can see, compiling labor agreement, establishing the procedure and rules for the interaction of the employer (LLC) and the employee (its CEO) is a rather difficult task. To facilitate its solution, it is worth familiarizing yourself with at least an approximate sample of such a document (given below).

Sample employment contract with the general director of LLC

Labor contract

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Moscow, 03/26/2018

1. Subject
   • The Employer instructs the Employee to perform the functions of the General Director, the Employee performs them.
   • The place of work of the Employee is an office located at the address: Moscow, st. Green, d. 5 of. eleven.
   • The employee starts work on 03/26/2018. This agreement is concluded for a period of 3 years in accordance with paragraph 11 of the Charter of the Employer.
   • The employee is subject to mandatory social insurance in accordance with the current legislation of the Russian Federation.
   • The employee undertakes not to disclose the commercial secret, access to which will be obtained by him in the course of performing his labor duties.
2. Rights and obligations of the Employee
   • The employee has the right:
     • Act on behalf of the Employer without issuing a power of attorney.
     • Hire workers and fire them.
     • Dispose of the property of the Employer within the limits provided to him.
     • Sign orders that are mandatory for execution at the enterprise.
     • Make transactions on behalf of the Employer, open bank accounts and sign financial documents enterprises.
   • The employee is obliged:
     • Manage the production, economic and financial and economic activities of the enterprise.
     • Conclude agreements with counterparties of the enterprise and ensure the fulfillment of existing contractual obligations.
     • Submit to the Employer a full report on the results of the enterprise's activities once a quarter, no later than the 15th day of the first month following the reporting quarter.
     • Ensure the timely fulfillment of the obligations of the Employer for the transfer Money to the budget and off-budget funds.
     • Observe labor discipline, as well as safety regulations and labor protection requirements.
   • The employer has the right:
     • Require the Employee to conscientiously fulfill the obligations established by this agreement.
     • Bring the Employee to material liability within the limits established by the current legislation.
   • The employer is obliged:
     • Timely and fully pay the Employee wages.
     • Provide the Employee with the conditions necessary for the performance of their duties.

1. The procedure for remuneration of the Employee.
   • For the performance of labor duties, the Employee is paid a salary in the amount of 78 thousand rubles. monthly.
   • Wages are paid to the Employee at least twice a month - on the 12th and 27th.
2. Details of the parties

Where can I download a sample employment contract with the general director of an LLC in the full version

The above example of an employment contract with the general director of an LLC is abbreviated, since it is impossible to reflect all the possible information that should be indicated in it within the framework of the article. The above sample only allows you to understand the approximate structure of the document and determine in general content each of its sections. In order to help prepare a draft contract that meets all the requirements of the current legislation and establishes the procedure for resolving all the main issues that arise in the course of the performance of the company's head of his labor duties, we suggest you download a sample employment contract for the general director of an LLC in full version(located in the Instructions subsection in the Forms section at the beginning of the article).

A sample of filling out an employment contract with the general director of an LLC

In addition, it is worth remembering that when hiring the general director of an LLC, an order for his appointment to a position is not issued, since the basis for concluding an employment contract in this case is a decision made by the general meeting of founders. AT work book an employee will need to indicate the number of this decision, as well as the date of its adoption - it is this information that will replace the usual information about the number of the order on the basis of which the employee is accepted into the organization.

Employment contract for the director of LLC

The general director of an LLC is the person who has the widest range of powers among the employees of the enterprise. He has the right to take important strategic decisions, issue and sign orders, hire ordinary employees, fire them, etc. However, in addition to the general director, there may be other directors on the staff of an LLC who formally have the status of ordinary employees.

These directors may be:

• Production Director;
• by personnel;
• commercial;
• technical;
• financial, etc.

When developing a draft agreement that will be concluded with one of these directors, it is not necessary to search and download a sample employment contract for the director of an LLC of this kind - it is quite possible to use the one presented above. After all, the director and the general director are synonyms. Both of them are the sole executive body of the LLC.

So, drawing up an employment contract is still necessary condition for a person to perform the duties of the general director of an LLC. The only exception is the situation in which the general director is simultaneously the sole founder (that is, in this case it is not necessary to conclude an employment contract). The sample employment contract with the director given in the article can be used as a basic draft document when developing an agreement to be applied in a particular enterprise.