Risks of assessing civil contracts as labor relations
After the introduction in our country of financial responsibility for violation of labor legislation, the vesting of state authorities and local self-government with significant powers in the process of monitoring compliance with labor laws, the determination of the procedure for control carried out in the form of inspection visits and travel abroad, the topic of hidden labor relations, is the substitution of an employment contract for civil law.
Hidden labor relations
The so-called hidden labor relations, regulatory authorities pay special attention. If it is established during the control event, the concluded civil law contract for the performance of work (provision of services) contains the characteristics inherent in the labor contract, a fine is imposed for the actual admission of the employee to work without concluding the labor contract in the amount of 30 minimum wages.
As experts in the Legal Protection Center from Novosibirsk, specializing in providing legal services on labor law issues (read more here), note that retraining of civil-law relations in labor essentially depends on the internal conviction of the labor inspector who sees such relations secrecy of labor relations, since at the legislative level there are no signs defined by which civil law relations are subject to re-qualification into labor relations.
So, in order to avoid significant financial losses due to the re-qualification of civil law relations in labor, it is necessary to turn to the basics of civil and labor legislation, from which the difference follows.
The legal framework and guarantees for the exercise by citizens of the right to dispose of their abilities for productive and creative work are determined by the Labor Code. This document also regulates the labor relations of all workers, contributing to the growth of labor productivity, improving the quality of work, strengthening labor discipline, etc. In addition, the general principles of labor legislation stipulate the need to establish a high level of working conditions, since any conditions of labor contracts that worsen the situation of workers in Compared to labor law, are invalid.
According to Part 1 of Art. 21 of the Labor Code (hereinafter – the Labor Code), an employment contract is an agreement between the employee and the owner of the enterprise, institution, organization or its authorized body or individual, under which the employee undertakes to perform the work defined by this agreement, subject to the internal labor schedule, and the owner of an enterprise, institution, organization or an authorized body or individual is obligated to pay the employee wages and provide working conditions necessary for the performance of work you provided no labor legislation, collective agreement and the parties’ agreement.
Part 3, Art. 24 of the Labor Code stipulates that an employee cannot be admitted to work without concluding an employment contract drawn up by order or order of the owner or his authorized body, as well as messages from the central executive body on ensuring the formation and implementation of the state policy for administering a single contribution to the compulsory state social insurance for hiring an employee in the manner prescribed by the Government.
Thus, the analysis of the given legislative requirements provides that the labor contract is an agreement on the implementation and provision of the labor function. Under an employment contract, an employee is required to perform not a specific, individually defined work, but work from a specific one or more professions, specialties, positions of relevant qualifications, and to perform a specific labor function in the enterprise. Upon completion of a specific task, labor activity does not stop. The subject of the employment contract is the employee’s actual labor in the production process, while the subject of the civil contract is the performance by the party of a certain certain amount of work (services).
The general definition of a civil contract is contained in part 1 of article 626 of the Civil Code (hereinafter – the Civil Code). A contract is an agreement of two or more parties aimed at the establishment, amendment or termination of civil rights and obligations.
In particular, a civil law contract is an agreement between the parties – a citizen and an enterprise – for the first to perform certain work (namely, a work contract, a contract for the provision of services, etc.), the subject of which is the provision of a specific labor result. However, in the case of the conclusion of this type of contract, labor relations do not arise that are covered by labor legislation.