Article 276 of the Labor Code is devoted to the characteristics of part-time work of the person who heads the organization.
It emphasizes that this work can only be carried out with the special permission of the relevant persons. It also contains a separate prohibition for the manager to be a member of the relevant control structures in his own organization. Labor Code of the Russian Federation
dated December 30, 2001 N 197-FZ
Full text of the article, guides, additional information - in ConsultantPlus
Contents of Art. 276 TK
The article is small in length - it only has one paragraph. It states that the head of the organization can work part-time for another employer only with special permission. This permission can be granted to him by the following parties:
- authorized body of a legal entity;
- owner of the organization's assets;
- a person authorized to represent their interests.
It is separately emphasized that the head of the organization does not have the right to be a member of the bodies exercising control and supervisory functions in it.
The considered article, as can be seen from its content, sets restrictions for the leader. She points out that for work that involves combining, he must obtain the consent of one of the three leadership centers of the organization. Moreover, their list is closed. It also emphasizes that the manager does not have the right to be a member of departments that carry out control and supervisory functions in the organization. This clarification is necessary from the point of view of preventing conflicts of interest.
Is it necessary to conclude an employment contract with the owner-director?
“In an LLC there is the only founder, who is also the director. Do I need to enter into an employment contract with him? With whom does he enter into an agreement - with himself?
Norma labor law expert Lenara KHIKMATOVA answered the question:
“There have long been disputes over the issue of the need (and possibility) to conclude an employment contract with the director, if he is the only founder of the organization.
If you contact the Labor Code, hiring is formalized by order of the employer. The basis for issuing an order is an employment contract concluded with the employee.
Hiring a director is the right of the owner of the enterprise's property. And he exercises this right personally himself, as well as through bodies authorized by him, or through the enterprise council, board or other bodies to which the right to manage the enterprise is delegated.
The order is announced to the employee against signature.
If the manager is not the only founder of the organization, the issue of concluding an employment contract with him is indisputable, and it is necessary to draw up an employment contract. This comes from the meaning of the Labor Code and other articles of the code. Thus, the Labor Code states that the list of one-time gross violations of labor duties, which may result in termination of the employee’s employment contract, is determined, among other things, by the employment contract between the owner of the enterprise and the head of the enterprise. And the Labor Code talks about the procedure for compensation for damage caused to an enterprise by its manager working under an employment contract .
Thus, the Labor Code repeatedly mentions the employment contract concluded between the manager and the owner of the enterprise.
Also, the need to conclude an employment contract with a person performing the functions of the sole executive body of the company is stated in the Law “On Limited and Additional Liability Companies”.
There is one person, but there are two faces!
Is it necessary to conclude an employment contract if the manager (director) and the sole founder are the same person? It sounds a little strange if a person enters into an employment contract with himself. But, no matter how absurd it may seem, we still recommend doing it. And that's why:
1. As they say, “you can’t spoil porridge with butter.” Therefore, it is better if there is an employment contract. The Labor Code does not contain a prohibition on concluding an employment contract with a director - the sole founder.
2. It only seems at first glance that the employment contract is concluded with the participation of the same person. But from a legal point of view, there are actually two persons: an individual (director) and a legal entity (organization).
A legal entity has its own legal capacity and acts in legal relations on its own behalf, and not on behalf of the founders. The employer in this case is not a director or founder, as an individual, but an organization.
3. The responsibility for concluding an employment contract between the sole founder and himself is not provided.
4. If in the described situation you do not conclude an employment contract, the state labor inspectorate may consider this an administrative offense and prosecute you for violating labor laws.
If there is no agreement
But what if the sole founder and director of the LLC as one person did not enter into an employment contract? Does this mean he is not a director and the documents he signed are invalid?
No, that's not true. In any case, he is the leader, regardless of whether an employment contract is signed with him or not, and from the moment the organization is created, he will actually manage it. And according to Art. 82 of the Labor Code, the actual admission of an employee to work by an official who has the right to hire, or with his knowledge, is considered the conclusion of an employment contract from the date of commencement of work - regardless of whether the hire was properly formalized. Those. The sole founder receives his powers as a director from the moment he actually begins to manage the organization.
We also note that an LLC cannot carry out its activities without a director, since during state registration the sole founder informs the authorized body who will be the head of the organization. After all, the registration authorities are obliged to transfer to the tax authority at the place of registration of the person, among other things, information about the manager (the person performing his functions).
Read more about how to draw up an employment contract with the head of an enterprise."
Experts' explanations reflect their opinions and create an information basis for you to make independent decisions.
Commentary on Article 275 of the Labor Code of the Russian Federation
Article 275 of the Labor Code defines the urgency of an employment contract with the head of an organization as a possible, but optional condition.
Based on Article 59 of the Labor Code and the provisions of other laws, a rule may be established to conclude only a fixed-term employment contract with the manager. In some cases, the obligation to conclude a fixed-term employment contract with the head of an organization is established not only by the organization’s charter or agreement of the parties, but also by law and other regulatory legal acts. For example, the rector of a higher education institution can be elected to a position for a term of up to five years. Also, in some cases, a minimum term of an employment contract may be established. Thus, in accordance with the provisions of paragraph 2 of Decree of the President of the Russian Federation of June 10, 1994 N 1200, the duration of an employment contract with the heads of federal state enterprises cannot be less than three years.
In accordance with the provisions of the Labor Code, an employment contract may be the result of election to a position; election by competition to fill the relevant position; appointment to a position or confirmation in a position; assignments to work by bodies authorized by law against the established quota; court decision on concluding an employment contract; actual admission to work with the knowledge or on behalf of the employer or his representative, regardless of whether the employment contract was properly drawn up (Article 16 of the Labor Code).
In some cases, special procedures may be established prior to concluding an employment contract. Federal Law No. 41-FZ of May 8, 1996 “On Production Cooperatives” provides for the election of the chairman of the cooperative by the general meeting from among the members of the cooperative. In cases where a supervisory board has been created in a cooperative, the chairman of the cooperative is approved by the general meeting of members of the cooperative upon the recommendation of the supervisory board.
Federal Law of December 26, 1995 N 208-FZ “On Joint-Stock Companies” in paragraph 8 of Article 48 determines that the formation of the executive body of the company and the early termination of its powers is within the competence of the general meeting, if the company’s charter does not include the resolution of these issues within the competence of the council directors (supervisory board) of the company. If the company's charter refers this to the competence of the board of directors, then it forms the executive body of the company and terminates its powers ahead of schedule. The employment contract on behalf of the company is signed by the chairman of the board of directors (supervisory board) of the company or a person authorized by the board of directors (supervisory board) of the company (clause 3 of article 69). An employment contract with a director (general director) is signed by the chairman of the general meeting of shareholders or a person authorized by the general meeting, if a board of directors is not created in the joint-stock company.
In limited liability companies, the election to the position of a sole executive body and the early termination of his powers falls within the exclusive competence of the general meeting of participants (clause 4, part 2, article 33 and clause 1, article 40 of the Federal Law of February 8, 1998 No. 14 - Federal Law “On Limited Liability Companies”). On behalf of the company, an employment contract with an employee performing the functions of the sole executive body of the company is signed by the person who chaired the general meeting of its participants, or by a participant in the company authorized by the decision of the general meeting of participants of the company.
The head of a state or municipal educational institution, on the basis of the provisions of paragraph 4 of Art. 35 of the Federal Law of July 10, 1992 N 3266-1 “On Education” and in accordance with the charter of an educational institution, may be elected by the staff of an educational institution or elected by the staff of an educational institution with prior approval of the candidacy (candidates) with the founder, elected by the staff of an educational institution with subsequent approval by the founder, appointed by the founder with the provision of veto power to the board of the educational institution, appointed by the founder, hired by the founder.
The exception is that in civilian educational institutions of higher professional education the appointment of rectors is not allowed. Based on the Federal Law of August 22, 1996 N 125-FZ “On Higher and Postgraduate Professional Education” (clause 3 of Article 12) and the Federal Law “On Education”, the rector of a federal higher educational institution is elected by secret ballot at a general meeting (conferences) of employees for a period of up to 5 years based on the results of discussion of the programs of applicants (applicant) for the position of rector or the report of the current rector. The election procedure is specified by the charter of the educational institution, taking into account the organizational structure of the educational institution and the structure of the governing bodies, after which the elected candidate is approved by the executive body in charge of the higher educational institution, in accordance with the legislation of the Russian Federation. Confirmation of the position of rector of a private university is carried out in accordance with its charter.
In accordance with the Regulations on the competition, approved by Decree of the Government of the Russian Federation of March 16, 2000 N 234, heads of federal state unitary enterprises are appointed to positions as a result of a competition open to the composition of participants.
The procedure for preparing a competition by the federal executive body responsible for coordinating and regulating activities in the relevant industry or area of government is as follows:
1. A commission for holding the competition is formed and its composition is approved.
2. An information message about the competition is published.
3. Applications from applicants are accepted and their records are kept.
4. The correctness of applications and the accuracy of documents attached to applications are checked.
5. At the end of the acceptance period, received applications with accompanying documents are transferred to the commission.
6. The list of questions for testing applicants is approved.
The commission, consisting of a chairman, deputy chairman, secretary and members of the commission, may involve experts with the right of advisory vote.
The composition of the commission, the terms and procedure for its work are approved by the head of the federal executive body.
Decisions of the commission are made by a majority vote of the voting members of the commission present at the meeting. The commission is authorized to resolve issues within its competence if at least half of its members with voting rights are present at the meeting. In case of equality of votes, the decision for which the chairman of the meeting voted is adopted.
In the event that the presence of a commission member at a meeting is impossible for valid reasons (illness, business trip, etc.), he must be replaced with a corresponding change in the composition of the commission.
The decisions of the commission are documented in protocols, which are signed by the members of the commission present at the meeting, who have the right to vote. When signing protocols, the opinion of the commission members is expressed in the words “for” or “against”.
No later than 30 days before the announced date of the competition, an information message about the competition must be published, which indicates:
a) name, main characteristics and information about the location of the enterprise;
b) requirements for an applicant for the position of director of an enterprise;
c) date and time of the beginning and end of acceptance of applications with documents attached to them;
d) address of the place where applications and documents are accepted;
e) a list of documents submitted by applicants to participate in the competition, and requirements for their execution;
f) date, time and place of the competition, indicating the time when the work of the competition commission began and the results of the competition were summed up;
g) telephone numbers and location of the commission;
h) the address at which applicants can familiarize themselves with other information, and the procedure for familiarizing themselves with this information;
i) the procedure for determining the winner;
j) the method of notifying the competition participants and its winner about the results of the competition;
k) other provisions containing requirements for applicants provided for by the legislation of the Russian Federation;
l) basic terms of the employment contract.
From the moment applications begin to be accepted, the commission provides each applicant with the opportunity to become familiar with the terms of the employment contract, general information and the main performance indicators of the enterprise.
To participate in the competition, applicants submit to the commission within the prescribed period an application, a personnel registration sheet, a photograph, certified copies of a work book and state-issued education documents, proposals for the enterprise’s program of activities (in a sealed envelope), as well as other documents provided for in the information message.
The competition consists of two stages:
— test tests (in writing), according to a list of questions available for public review;
— studying proposals for the enterprise’s activity program from among those proposed by the competition participants.
The winner of the competition is the participant who has successfully passed the tests and who, in the opinion of the commission, has proposed the best program for the enterprise’s activities.
After this, within a month, the federal executive body concludes an employment contract with the winner.
Labor functions of a manager
The labor function of a manager is to manage the organization (including performing the function of its sole executive body - Article 273 of the Labor Code of the Russian Federation) to perform actions on behalf of the organization to realize its rights and obligations arising from civil, labor, tax and other legal relations (to act without powers of attorney):
- in the scope of the owner’s powers to own, use and dispose of the organization’s property;
- in the field of rights of the copyright holder of exclusive rights to the results of intellectual activity and means of individualization equivalent to them;
- in the field of the rights and obligations of the employer in labor relations with other employees of the organization, etc. (Part 1 of Article 273 of the Labor Code of the Russian Federation).
note
Employees who manage certain areas of the organization’s activities (for example, the artistic director of a theater, the scientific director of a scientific organization) or individual structural divisions of the organization without assigning them the functions of the sole executive body of the organization do not perform the labor function of the head of the organization (clause 2 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated June 2 2015 No. 21).
Read also “The nuances of labor relations with the manager"
The manager is appointed to the position (as well as dismissed), as a rule, by the general meeting of participants (shareholders). In a number of cases, if the issue of appointment or dismissal of a manager (sole executive body) is within the competence of the board of directors, the board of directors.
First, the corresponding decision (minutes) of the general meeting of participants or the board of directors is drawn up. Then an employment contract is signed with the manager.
In a limited liability company, an employment contract with the manager can be signed by:
- the person presiding over the general meeting of the company's participants at which the manager was elected;
- a member of the company authorized by the decision of such a meeting;
- Chairman of the Board of Directors (Supervisory Board);
- a person authorized by a decision of the board of directors (supervisory board) of the company (clause 1 of article 40 of the Law of February 8, 1998 No. 14-FZ).
On behalf of the JSC, the employment contract is signed by the chairman of the board of directors (supervisory board) or a person authorized by this board (clause 3 of article 69 of the Law of December 26, 1995 No. 208-FZ), as well as the sole shareholder or another person authorized by him.
An employment contract with a manager is usually concluded for a fixed-term period. Its validity period is determined by the constituent documents of the organization or by agreement of the parties (Part 1 of Article 275 of the Labor Code of the Russian Federation).
Based on the decision of the authorized body and the employment contract, the manager (or another authorized person from among the participants, the board of directors) issues an order to take office (or begin to perform the duties of a manager).
An entry about the appointment is made in the manager’s work book. Column 4 makes reference to the decision of the general meeting or the order to take office (letter of Rostrud dated September 22, 2010 No. 2894-6-1). A personal card is also issued for the elected leader.
