Source: Magazine “Human Resources Department of a Commercial Organization”
The head of the organization, on the one hand, is the same employee as everyone else, and he is subject to the norms of the Labor Code. On the other hand, the manager belongs to a separate category of workers and labor relations with him have their own characteristics. They mainly relate to issues of registration and termination of employment relationships, part-time work, provision of guarantees upon dismissal, as well as measures of liability for violations of labor legislation. What these features are, we will consider in this article.
Conditions for appointing a manager
When hiring a manager who is an employee (Article 275 of the Labor Code of the Russian Federation), there are certain features regulated by legal norms and constituent documents:
- appointment;
- election;
- concluding an employment contract with the winner of the competition for a vacant position;
- conclusion of a contract for a certain period;
- establishing requirements for candidates in government agencies;
- provision of additional documents, such as income statements.
Hiring is carried out by the owner of the organization.
The appointment occurs if the owner is the state or one person. In this case, the state body issues an order (instruction) on the appointment and an employment contract is signed on behalf of the state. If there is only one owner, then his decision is made, an agreement is concluded and an order for appointment is issued.
A competition for filling a position is held in government organizations and institutions on the basis of a regulatory act (Regulations on holding a competition for filling a position of a manager), which establishes the conditions. The winner is appointed to the position.
Elections are carried out in Limited Liability Companies and Open Joint Stock Companies.
According to the Law “On Joint Stock Companies”, Article 69, paragraph 3, the general director is elected at the general meeting of shareholders, if the constituent documents of the company do not refer this to the competence of the Board of Directors. The decision is made by a simple majority of votes.
The Law “On Limited Liability Companies”, Article 40, paragraph 1, establishes a similar election procedure.
In the Law “On Joint Stock Companies”, Article 69 and “On Limited Liability Companies”, Article 40, there is the concept of a sole executive body.
Sole executive body - director, general director, president, etc., acting on behalf of the company on the basis of the Charter and vested with the right to exercise the rights and obligations of this legal entity on all issues within its competence.
You may be interested in the “Concluding an Employment Contract” mental map, which describes the general rules of this process.
Or read HERE about the procedure for terminating an employment contract.
Executive agency
In accordance with Art. 273 of the Labor Code of the Russian Federation, the head of an organization is an individual who, in accordance with the Labor Code, 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 government bodies, constituent documents of a legal entity (organization) and in accordance with local regulations, manages this organization, including performing the functions of its sole executive body.
Note that in addition to the sole executive body, an organization may have a collegial executive body. In the Labor Code, Chapter is devoted to the peculiarities of regulating the labor of managers and members of the collegial executive body . 43 , the provisions of which apply to 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 only participant (founder), member of the organization, owner of its property;
- The organization is managed under an agreement with another organization (management organization) or an individual entrepreneur (manager).
By virtue of Art. 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 documents listed in Art. 273 of the Labor Code of the Russian Federation , as well as an employment contract.
Among the most common laws regulating the activities of managers of commercial organizations are federal laws dated 02/08/1998 No. 14-FZ “On Limited Liability Companies” (hereinafter referred to as the LLC Law ), dated 12/26/1995 No. 208-FZ “On Joint-Stock Companies” " (hereinafter referred to as the Law on JSC ).
The head of a commercial organization (director, general director, etc.) is the sole executive body who, without a power of attorney, acts on behalf of the organization, including representing its interests and making transactions, issues powers of attorney for the right of representation on behalf of the organization, issues orders on the appointment to positions of employees, on their transfer and dismissal, applies incentive measures and imposes disciplinary sanctions and exercises other powers that are not within the competence of the general meeting of participants of the company, the board of directors (supervisory board) of the company and the collegial executive body of the company.
of the Law on JSC states that the relations between the company and the sole executive body of the company (director, general director) and (or) members of the collegial executive body of the company (board, directorate) are subject to the Labor Code to the extent that does not contradict the provisions of the Law on JSC _
Features of an employment contract with a manager
Based on the results of the competition, election or appointment, an employment contract is concluded with the applicant for the position of manager, which has its own characteristics.
In accordance with Article 275 of the Labor Code of the Russian Federation, a standard agreement is concluded with the heads of state (municipal) institutions based on the form 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.
An employment contract is concluded with the heads of commercial organizations, which can be developed on the basis of labor legislation, other legislative acts, constituent documents, on behalf of the owner and approved by the owner or his authorized representatives.
The employment contract must contain:
- rights and obligations;
- establish monetary payments for work performed;
- compensation;
- conditions for termination of the contract.
An employment contract with a manager can be terminated on additional grounds provided for in Article 278 of the Labor Code of the Russian Federation:
- in connection with the removal of the head of the organization - the debtor in accordance with the legislation on insolvency (bankruptcy);
- in connection with the adoption by an authorized body of a legal entity, or the owner of the organization’s property, or a person (body) authorized by the owner of a decision to terminate the employment contract. The decision to terminate an employment contract on the specified basis in relation to the head of a unitary enterprise is made by the body authorized by the owner of the unitary enterprise in the manner established by the Government of the Russian Federation;
- on other grounds provided for in the employment contract.
The owner is obliged to provide guarantees in the event of termination of the employment contract (Article 279 of the Labor Code of the Russian Federation) in the form of payment of compensation, in the absence of guilty actions, in the amount determined by regulations or the employment contract, but not less than three times the average monthly salary, except in cases provided for by labor legislation.
The constituent documents specify the period for which the employment contract is concluded. In addition, the period may be established by agreement of the parties, if this does not contradict current regulations.
Who signs the employment contract with the director?
The following have the right to sign an agreement in limited liability companies:
- chairman of the meeting at which the director was elected;
- a person authorized by him;
- Chairman of the Board of Directors, if the constituent documents include this within his competence.
In joint-stock companies, an employment contract is signed in a similar manner.
In a state organization, an employment contract is signed by the head of the executive body, who acts on behalf of the state owner of the organization.
There is an unusual situation: the contract has expired, but a decision on extending the contract with the current one or on a new appointment of a manager has not been made.
Then, in accordance with Article 58 of the Labor Code of the Russian Federation, the previously signed agreement will be considered concluded for an indefinite period and the head of the company is authorized to fulfill his duties until a decision is made, after which removal from his position is possible under Article 278 of the Labor Code of the Russian Federation.
QUESTIONS OF THE WEEK
08/12/2020 The powers of the head of the Company arise from the moment of his election (appointment) by the competent management body of the Company. Making a decision on the issue of changing the director may be within the competence of the general meeting of participants or the board of directors, depending on the provisions of the company’s charter (clause 1, article 40, subclause 4, clause 2, article 33 of the LLC Law).
After election (appointment) to a position, the head issues an order to take office. Thus, the new director becomes the head of the organization immediately after the minutes of the meeting of participants or the board of directors are drawn up, unless a different date is established in the minutes themselves.
Consequently, the start date of the employment relationship will be the date specified in the election protocol, and this date must be indicated in the order for taking office. At the same time, taking into account the fact that the new director himself signs the order on his assumption of office, nothing prevents him from issuing such an order immediately after drawing up the protocol on his election to the position.
After making a decision on the election or appointment of the head of the organization and fixing this fact in the protocol (decision) with the head (director, general director, chairman of the cooperative), it is necessary to conclude an employment contract, since in accordance with Art. 16 of the Labor Code of the Russian Federation, labor relations between an employee and an employer arise on the basis of such an agreement.
According to paragraph 2. clause 1 of Art. 40 of the Federal Law of 02/08/1998 N 14-ФЗ in limited liability companies, an employment contract on behalf of the company can be signed by the following persons:
- the person who chaired the general meeting of the company’s participants, at which the sole executive body of the company was elected;
— a participant of the company, authorized by the decision of the general meeting of participants of the company;
- the chairman of the board of directors (supervisory board) of the company (if the resolution of these issues falls within the competence of the board of directors) or a person authorized by a decision of the board of directors (supervisory board).
The Labor Code of the Russian Federation does not prohibit setting a start date in an employment contract that is different from the date of its conclusion. The date of conclusion of the contract, as a rule, means the date it was signed by the parties, except in some cases. For example, the contract is also considered concluded from the date of the employee’s actual admission to work (while the contract itself has not yet been drawn up and signed) (Part 1 of Article 61 of the Labor Code of the Russian Federation).
Thus, in the situation under consideration, an employment contract with the director must be concluded no later than three days from the date specified in the election protocol. The date of election will be the date the manager's authority begins and the date the employment relationship begins.
Legal justification:
- Ready-made solution: How to change the director of an LLC (ConsultantPlus, 2020) {ConsultantPlus}
- Ready-made solution: What essential conditions should be included in the employment contract (ConsultantPlus, 2020) {ConsultantPlus}
Anna Marchenko Expert Consultation lines
Inauguration of the director
As a general rule, the first order that a director issues is the order to take office. As a basis, the order makes reference to the minutes of the general meeting of the owners of the company on its election.
When appointing a head of a state organization, the order specifies the details of the order of the executive body, the representative of the owner (state).
An entry is made in the work book: elected to the position of director or appointed to the position of director. The basis is the decision of the general meeting or meeting of the Board of Directors.
For government organizations, an entry is made in the work book: appointed to the position of director and the details of the order or instruction on appointment to the position are indicated on the basis.
