Working hours (working days and weekends, start and end times) are determined by the internal labor regulations in force at the Employer. 5.3. The following features of the work mode are set for the employee. 5.4. The employee is provided with an annual basic paid leave lasting calendar days. 5.5. The employee is provided with an annual additional paid leave with a duration in connection with (grounds for establishing. additional leave) 6. Amendment and termination of the employment contract 6.1. Each of the parties to this employment contract has the right to raise with the other party the question of supplementing it or otherwise amending the employment contract, which, by agreement of the parties, are drawn up by an additional agreement, which is an integral part of the employment contract. 6.2.
It should be noted that the head of the EP has the right to issue powers of attorney to other persons (including his subordinates) in the order of substitution (the scope of powers in such powers of attorney cannot be wider than the scope of powers of the head). At the same time, powers of attorney on behalf of the heads of branches and representative offices are issued in a simple written form, without notarization (this exception is clearly stated in clause
3 art. 187 of the Civil Code of the Russian Federation), on behalf of the heads of other OPs - must be notarized. Head of a Separate Subdivision
it is not the sole executive (or other) body of a legal entity. A contract is concluded with the head of the EP in accordance with the provisions of the Labor Code of the Russian Federation.
But the legislator limits the application of the above procedure for dismissal in relation to employees of separate structural divisions located in the same area as the organization itself. In addition, the division of structural units through the sign of territorial isolation takes place in the cases provided for in Articles 74, 76, 81, 83, 84, 261 of the Labor Code.
Info
These articles contain the wording: “... the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.
After a worthy head of a separate subdivision is selected, it is necessary to sign an employment contract with him. In our consultation, we will pay attention to some features of concluding an agreement with such a responsible person.
Attention
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Agreement + Power of Attorney It is not enough to establish a separate subdivision, you also need to find a competent specialist with management experience who can manage it. Two documents fix his powers at once - an employment contract and a power of attorney from the head office.
The specified sample of an employment contract with the head of a separate subdivision fixes his rights, duties, responsibilities and guarantees. A power of attorney will allow on behalf of the enterprise to exercise these powers.
The Employee was familiarized against signature; - observe labor discipline; - take care of the property of the Employer, including the property of third parties held by the Employer, if the Employer is responsible for the safety of this property and other employees; - immediately inform the Employer or immediate supervisor of the occurrence a situation that poses a threat to life and health of people, the safety of the Employer's property, including the property of third parties held by the Employer, if the Employer is responsible for the safety of this property, the property of other employees; - during the term of this employment contract and after its termination for for years not to disclose a legally protected secret (state, commercial, official and other secret) that has become known to the Employee in connection with the performance of his labor duties; - ...
At the same time, in accordance with the instructions of the Bank of Russia, the head of the parent company must stitch the sheets of cash books for each existing unit where cash transactions are carried out. A sample employment contract with the head of a separate subdivision: Job requirements A standard vacancy for the head of a structural unit contains a number of requirements for the candidate, compliance with which will allow him to effectively perform the assigned tasks.
These requirements include: Knowledge of Russian legislation The manager must be familiar with the various regulations that govern the functioning of a separate subdivision, as well as the Russian Federation legislation relating to the scope of the subdivision's activities. Knowledge of the industry The head of the OP is required to have extensive knowledge in the field of economic activity of the unit, to know the documents regulating the profile, specialization of the branch.
Online magazine for an accountant This employment contract is concluded for an indefinite period. 1.3*. This employment contract on the basis (for the reason) in accordance with the requirements of Art.
59 of the Labor Code of the Russian Federation is concluded for a period. 1.4. The employee begins to perform his duties from » » 200_ 1.5. The employee is set a trial period of months (weeks, days). 1.6. Important This employment contract shall enter into force from » » 200_ 2. The rights and obligations of the Employee 2.1. The employee manages the activities of a separate structural unit of the Employer in the manner specified. (Charter, regulation on the subdivision, etc.) 2.2.
This employment contract governs the relationship between the Employer and the Employee related to the latter's performance of the duties of the head of a separate structural unit of the Employer. 1.2 Work for the Employer is for the Employee: . Employment contract with the director of a separate subdivision Attention Institutions, concepts and terms used in this Code In accordance with federal law, the heads of separate subdivisions are appointed by the main company and act on the basis of a power of attorney issued to them. The heads of the EP act on behalf of the parent company, the same company is fully responsible for all the consequences of the activities of the management of the unit. A structural subdivision is not an independent legal entity, their heads are themselves appointed by a legal entity and act under a power of attorney having an established pattern.
Important
Employment test The conditions for terminating an employment contract with the head of a separate subdivision, provided that it is located in a different area, comply with the rules for the liquidation of the organization. The location of the EP is recognized as different if it is located outside the territorial-administrative unit (city, township, etc.) in which the parent company is located.
There are many links in the structure of large companies. Some of them are inextricably linked with the parent organization and are located on its territory, and some are remote and independent. These are separate units and are very different from ordinary departments, services or bureaus. In this article, we will analyze the features of their creation and operation.
From this article you will learn:
Unlike internal divisions (workshops, departments, services, etc.), which are not regulated by law, isolated ones have clear criteria and regulations for functioning. The definition can be found in Article 11 of the Tax Code of Russia. Paragraph 2 says that a separate subdivision is a territorially remote structural unit of a company where there are stationary jobs. Article 55 of the Civil Code of the Russian Federation states that branches and representative offices are territorially separate subdivisions (OP) of organizations. They should be registered in the Unified Register, and there are also special rules for accounting and tax accounting. We will consider them in detail further.
Only legal entities have the right to create a EP, and individual entrepreneurs do not. First of all, this is due to the fact that a unit can be recognized as separate only if it meets a certain set of criteria.Based on the provisions of Article 11 of the Tax Code, the mandatory criteria for the EP are:
|
Criterion |
Detailing |
Note |
|
Territorial isolation from the parent company. |
The address of the official registration of the EP is different from the address of the company that founded it. |
The defining feature of the OP is the address at which it operates. This is not a legal address. |
|
Availability of permanent jobs. |
Stationary RM are recognized if used for at least 1 month. |
Even if the unit has only one such workplace, the criterion is met. |
To recognize a unit as separate, it is necessary that it has both of the described criteria. At the same time, it does not matter what powers are vested in the OP and whether the fact of its opening is listed in the constituent documentation. If at least one sign is missing, it is necessary to provide it or give the link a different status.
An employee works from home, can his apartment be considered a separate unit? The system administrator maintains the equipment of a third-party company, does he work for the OP? Such questions are not uncommon. Both answers are no. In the first case, the concept of a workplace is violated. According to article 209 of the Labor Code, it must be controlled by the employer. In the second case, we are talking about an object that was not established by the parent organization.
Let's take a closer look at the key characteristics of a separate division
Neither the civil code nor the tax code requires the OP to have its own legal address. According to article 11 of the Tax Code, only the place where the enterprise operates is of critical importance - it is necessary that this address differs from the main location of the company.
Since the concept of territorial isolation is not defined by the Code, the interpretation of this concept is ambiguous. For example, there are examples from arbitration practice, when this was understood as the location of a subdivision in a territory where tax records are kept by a body other than that of the parent company. That is, in a number of cases, territorial isolation is equated with administrative-territorial. At the same time, there are cases when the parent company and its EP are registered with the same tax authority.
There is no indication as to whether the head office and its EP must be in the same city or region, or may be in different locations. It can be concluded that both the creation of very remote EPs and those located in the neighborhood of the main organization are acceptable. This conclusion is also confirmed by the letter of the Ministry of Finance No. 03-02-07 / 1-314 of 09/02/2011.
It is important to bear in mind that two different separate divisions cannot be located at the same address - from the point of view of accounting, this is one structural unit.
Often there are difficulties associated with changing the address of the OP. Do I need to change the registration data in the registry? How exactly?
The procedure for changing the address is not regulated by law. But here it is worth referring to the Federal Law No. 129 of 08.08.2001, which says that data on representative offices and branches of the company must be entered in the Unified State Register of Legal Entities. From this we can conclude that when changing the address of the OP, it is necessary to make appropriate changes to the Register.
The creation of a separate division is initiated by the company's management.
In the part that concerns documents, the process begins with the issuance of an order to open a EP. It must be signed by the head of the main enterprise and participants in the meeting of shareholders (if we are talking about JSC) or members of the board of directors (for LLC). The form of the order may comply with the internal standards of the company. The document must necessarily indicate the primary document (for example, the minutes of the meeting of shareholders).
Among the mandatory information about the new structural object:
Another important document is the Regulation on a separate subdivision. It describes the main aspects of the work. Among them:
After the main internal documents are ready, it is necessary to register the EP in the state register and put it on tax records.
The requirement to register with the Unified State Register of Legal Entities is contained in paragraph 3 of Article 55 of the Civil Code of the Russian Federation. There is also paragraph 2 of Article 23 of the Tax Code, which states that legal entities must report to the tax authorities about the creation of an OP. A maximum of one month from the date of formation is allotted for this.
Registration in the state register is carried out by the tax authorities. To register a separate subdivision, it is necessary to submit a notification at the place of tax registration of the main company according to Form C-09-3-1 (approved by Order of the Federal Tax Service No. ММВ-7-6/362 of 06/09/2011).
If the unit will work with a separate balance sheet, pay salaries to its employees and have its own account, then you also need to register it with the FIU and insurance authorities.
Responsibility for violation of the deadlines for tax registration is provided for in Article 15.6 of the Code of Administrative Offenses. It says that for failure to provide documents for tax accounting, the enterprise and responsible persons may be fined. Amounts: up to 1000 rubles and up to 500 rubles, respectively.
There are other grounds for prosecution as well. So, in paragraph 1 of Article 126 of the Tax Code it is said that for failure to provide data on the creation of the EP on time - a fine of 200 rubles for each document.
Sometimes inspectors try to impose a more severe punishment - up to 10% of the income generated by unregistered activities (Article 116 of the Tax Code of the Russian Federation). This measure is illegal, there are examples when taxpayers appealed against such a decision in court and won.
The rules for payments to the budget from the profits of the OP are spelled out in Article 288 of the Tax Code. Advance and principal amounts must be paid at the location of each division (in accordance with the profit share of this OP), as well as at the place of tax registration of the main company.
The share of profit is calculated in the part that is subject to deduction to the regional budget (at a rate of 17.5%).
If the unit operates with a separate balance sheet, then it will also be a payer of property tax. This is property classified as property, plant and equipment.
If a separate division stops its work, it is not enough just to lay off people and close the facility. These are only actual signs of the annulment of the unit, although they are equated with liquidation. You also need to do a deregistration. Clause 2.3 of Article 23 of the Tax Code states that within a month after the closing of the OP, the organization must notify the IFTS about this. You should also notify the tax authorities at the location of the unit. There is no legal time limit for this.
Employment contract with the head of a separate division
When registering an employment relationship with the head of a branch, representative office, all requirements stipulated by current legislation should be met.
In the article, we will consider the features of labor relations with the head of a separate subdivision, and also give an example of an employment contract with the specified person.
Article 55 of the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation) determines that a representative office is a separate subdivision of a legal entity located outside its location, which represents the interests of a legal entity and protects them.
A branch is a separate subdivision of a legal entity located outside its location and performing all or part of its functions, including the functions of a representative office.
Representative offices and branches are not legal entities. They are endowed with property by the legal entity that created them and act on the basis of the provisions approved by it.
According to paragraph 3 of Article 55 of the Civil Code of the Russian Federation, the heads of representative offices and branches are appointed by a legal entity and act on the basis of its power of attorney. Note that this rule is imperative and does not allow for broad interpretation.
Keep in mind that representative offices and branches must be listed in the unified state register of legal entities.
Thus, the head of separate structural divisions acts on behalf of the organization (employer) on the basis of the position and power of attorney. This information must be reflected in the employment contract with the head of the branch or other separate subdivision.
The attention of readers should be drawn to the fact that the power of attorney and the employment contract must necessarily define the rights of the head of a separate subdivision to sign personnel documents on behalf of the employer (for example, orders for hiring, dismissal, relocation, etc.). In the absence of documentary confirmation of the authority of the manager to sign personnel documentation, a situation may arise when an employee dismissed, for example, by the head of a branch, will be reinstated due to the fact that the documents were signed by a person who does not have the right to do so.
According to paragraph 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6, Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 dated July 1, 1996 "On Certain Issues Related to the Application of Part One of the Civil Code of the Russian Federation", the powers of the head of the branch (representative office) must be certified by a power of attorney and cannot be based only on the instructions contained in the constituent documents of the legal entity, the provision on the branch (representative office) and the like, or appear from the situation in which the head of the branch operates.
Thus, the main documents regulating the rights, duties, terms of reference of the head of the branch, representative office are:
- articles of association;
– position on the branch;
- power of attorney issued by the organization.
In this case, a power of attorney issued to the head of a branch or representative office must be executed in compliance with the rules determined by the Civil Code of the Russian Federation.
It should be said that with the head of the branch (representative office), as with any employee of the organization, an employment contract must be concluded, after which an order for employment is issued.
Prior to the conclusion of an employment contract with the head of a branch (representative office), his appointment to a position, which follows from Article 16 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) and paragraph 3 of Article 55 of the Civil Code of the Russian Federation.
Mandatory for inclusion in an employment contract with the head of a separate structural unit in accordance with Article 57 of the Labor Code of the Russian Federation is the place of work, and if the organization's unit is located in another area, that is, outside the administrative-territorial boundaries of the settlement where the organization itself is located, the place of work is indicated with an indication of this unit and its location (paragraph 16 of the Resolution 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").
When concluding an employment contract with the head of a branch or representative office, it may provide for a test condition, which follows from Article 70 of the Labor Code of the Russian Federation. In this case, the trial period may not exceed six months.
Please note that when applying the provisions of Article 72.1 of the Labor Code of the Russian Federation on the transfer of a manager to another job, one should take into account whether the labor functions of the manager and (or) the location of the structural unit will be changed. If the employment contract with the head of a separate subdivision specifies only the type of subdivision without specifying its location and full name, for example, a branch, then we can talk about transferring to another job only if an employee is appointed, for example, to the position of head of a representative office, with all Other things being equal, we are talking about displacement.
Keep in mind that in the employment contract it is necessary to distinguish between the labor function and the powers of the head of the unit. The powers defined by the employer in local acts and (or) defined in the power of attorney issued to the head of a separate subdivision, if they are not specified in the employment contract, are subject to change by the employer unilaterally, which does not entail the consequences established by Article 72.1 of the Labor Code of the Russian Federation. We can talk, for example, about changing the scope of powers in terms of concluding transactions for a certain amount of money, and the like.
In accordance with Article 73 of the Labor Code of the Russian Federation, an employment contract with the head of a branch, representative office that, in accordance with a medical certificate, needs a temporary or permanent transfer to another job, if the transfer is refused or the employer does not have the relevant job, is terminated in accordance with clause 8 of part one of the article 77 of the Labor Code of the Russian Federation. The employer has the right, with the written consent of the specified employee, not to terminate the employment contract with him, but to suspend him from work for a period determined by agreement of the parties. During the period of suspension from work, wages are not accrued to the specified employee, with the exception of cases provided for by the Labor Code of the Russian Federation, other federal laws, a collective agreement, agreements, and an employment contract.
According to paragraphs 9 and 10 of part 1 of article 81 of the Labor Code of the Russian Federation, an employment contract with the head of a branch (representative office) may be terminated by the employer if he makes an unreasonable decision that entails a violation of the safety of the organization's property, its unlawful use or other damage to the organization's property, as well as in in the event of a single gross violation by the head of the branch (representative office) of his labor duties.
On the basis of part 4 of article 81 of the Labor Code of the Russian Federation, in the event of termination of the activities of a branch, representative office located in another locality, termination of the employment contract with an employee - the head of this unit is carried out according to the rules provided for in cases of liquidation of the organization. In other words, when terminating an employment contract with the head of a separate subdivision located in another locality, in the event of termination of the activity of this subdivision, the employer must perform all the same actions that are provided for upon dismissal due to the liquidation of the organization, that is:
- notify the employee - manager two months before the dismissal;
- inform the employment service;
– notify the trade union body;
- issue an order to terminate the employment contract;
- make appropriate entries in the personal card of the employee-head of the structural unit and the work book;
- make all payments.
Here is a sample employment contract concluded with the head of the branch.
Example
Employment contract No. 36
Joint Stock Company "Natasha" (JSC "Natasha"), hereinafter referred to as the "Employer", represented by General Director Vladimir Anatolyevich Ivanov, acting on the basis of the Charter, on the one hand, and Petrov Alexey Petrovich, hereinafter referred to as the "Employee", who is appointed for the position of director of the branch "Branch", hereinafter referred to as the "Subdivision", on the other hand, have concluded this employment contract as follows:
1. Subject of the employment contract
1.1. This employment contract governs the relationship between the Employer and the Employee related to the performance by the latter of the duties of the head of the Employer's Subdivision, located at the address: Novosibirsk, st. Malaya d. 4/1.
1.2. The Employer provides the Employee with a job as a Director of the Division.
1.3 The working conditions at the workplace of the Employee are optimal in terms of harmfulness and (or) danger (class 1) (according to the results of a special assessment of working conditions dated 30.01.2015).
1.4. Work at the Employer is the main one for the Employee.
1.5. This employment contract is concluded for an indefinite period.
1.7. The employee is set a probationary period of 3 months.
2. Rights and obligations of the Employee
2.1. The Employee manages the activities of the Employer's Unit in the manner prescribed by the regulations on the unit.
2.2. In internal organizational relations, the Employee, as the head of the Employer's Unit, acts within the powers granted to him by the regulation on the unit, job description (other local regulatory legal acts of the Employer), in external civil and economic relations related to the implementation of the activities of the unit, the Employee acts on behalf of the Employer on on the basis of a power of attorney issued to him.
2.3. Represent the interests of the Employer in relations with the employees of the Subdivision The Employee has the right within the powers determined in accordance with the labor legislation of the Russian Federation, constituent documents and local regulations of the Employer, in particular: _______________.
2.4. The employee has the right to:
- providing him with work stipulated by this employment contract;
– ensuring safety and working conditions that comply with state regulatory requirements for labor protection;
- timely and in full payment of wages in accordance with their qualifications, complexity of work, quantity and quality of work performed.
The employee has other rights provided for by the labor legislation of the Russian Federation, this employment contract.
2.5. The employee is obliged:
- conscientiously fulfill their labor duties assigned to him by this employment contract, comply with established labor standards;
- comply with the internal labor regulations in force at the Employer, the requirements for labor protection and ensuring labor safety, other local regulations of the Employer, directly related to the work activity of the Employee, with which the Employee was familiarized against signature;
- observe labor discipline;
– take care of the property of the Employer, including the property of third parties held by the Employer, if the Employer is responsible for the safety of this property, and other employees;
- immediately inform the Employer about the occurrence of a situation that poses a threat to the life and health of people, the safety of the property of the Employer, including the property of third parties held by the Employer, if the Employer is responsible for the safety of this property, the property of other employees;
- during the term of this employment contract and after its termination for five years, do not disclose a secret protected by law (state, commercial, official and other secrets) that became known to the Employee in connection with the performance of his labor duties;
– perform other duties stipulated by the labor legislation of the Russian Federation and this employment contract.
3. Rights and obligations of the Employer
3.1. The employer has the right:
– demand from the Employee conscientious performance of duties under this employment contract;
– adopt local acts directly related to the work activity of the Employee, including internal labor regulations, labor protection and labor safety requirements;
- bring the Employee to disciplinary and material liability in the manner prescribed by the Labor Code of the Russian Federation, other federal laws;
– encourage the Employee for conscientious efficient work;
- unilaterally change the content of the powers of the Employee as the head of the Unit without changing the labor function;
The employer has other rights provided for by the labor legislation of the Russian Federation, this employment contract.
3.2. The employer is obliged:
– provide the Employee with work stipulated by this employment contract;
– ensure the safety and working conditions of the Employee that comply with state regulatory requirements for labor protection;
- provide the Employee with equipment, tools, technical documentation and other means necessary for the performance of his labor duties;
- pay in full the wages due to the employee on time;
- performs other duties stipulated by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations and this employment contract.
4. Remuneration and social guarantees
4.1. For the performance of labor duties stipulated by this employment contract, the Employee is paid a salary in the amount of 50,000 (fifty thousand) rubles.
4.2. The following is also established for the employee:
– bonus in the amount of 20,000 (twenty thousand) rubles quarterly;
– remuneration based on the results of annual work in the amount of 50,000 (fifty thousand) rubles.
4.3. Payment to the Employee of wages, bonuses, remuneration based on the results of annual work is made in the terms and in the manner established by the collective agreement, internal labor regulations, and other local regulations of the Employer.
4.4. The Employee is subject to benefits, guarantees and compensations established by the legislation of the Russian Federation and local regulations of the Employer.
5. Working time and rest time
5.1. To perform their duties, the Employee is set an irregular working day.
5.2 A break for rest and meals during the working day is determined by the internal labor regulations in force at the Employer.
5.3. The employee is given two days off per week.
5.4 The employee is granted an annual basic paid leave of 28 calendar days and an additional paid leave for irregular working hours of 5 calendar days.
6. Change and termination of the employment contract
6.1. Each of the parties to this employment contract has the right to raise with the other party the question of supplementing it or otherwise amending the employment contract, which, by agreement of the parties, are drawn up by an additional agreement, which is an integral part of the employment contract.
6.2. This employment contract is terminated on the grounds established by the Labor Code of the Russian Federation and other federal laws.
7. Final provisions
7.1. Labor disputes and disagreements of the parties regarding compliance with the terms of this employment contract are resolved by agreement of the parties, and if it is impossible to reach an agreement, they are considered by the labor dispute commission and (or) the court in the manner established by the legislation of the Russian Federation.
7.2. In the part not provided for by this employment contract, the parties are guided by the legislation of the Russian Federation, constituent documents, the collective agreement, local regulatory legal acts of the Employer.
7.3. This employment contract is concluded in two copies, having the same legal force. One copy is kept by the Employer in the Employee's personal file, the second one is kept by the Employee.
7.4. Addresses and details of the parties:
Employer:
JSC "Natasha" General Director Ivanov V.A.
In this case, a power of attorney is issued to the head of the EP, giving him the right to sign employment contracts, orders, other personnel documents, as well as making entries in the work books of employees. Hiring Hiring a new employee, regardless of whether he will work in the head office or a separate division, requires a clear procedure for working with documents. The employee must sign not only the employment contract and the hiring order, but also such documents as a personal card, an agreement on personal data, a journal of familiarization with local regulations, etc. A separate task when hiring is an introductory briefing on labor protection, also requiring the signing of relevant documents by the employee.
Read also If there are relatively few branches and representative offices in the organization, and, consequently, the staff is small, then personnel records management is often carried out centrally. Such organization of document circulation provides for the following:
But the legislator limits the application of the above procedure for dismissal in relation to employees of separate structural divisions located in the same area as the organization itself. In addition, the division of structural units through the sign of territorial isolation takes place in the cases provided for in Articles 74, 76, 81, 83, 84, 261 of the Labor Code. These articles contain the wording: “... the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area.
The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract. We are talking about vacancies currently available from the employer, including in its branches, representative offices, and other separate structural divisions.
Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” another locality is understood to be an area outside the administrative-territorial boundaries of the corresponding settlement (Moscow and Moscow Region are different localities). We wrote more about hiring instructions in the material at the link. Otherwise, the procedure for hiring does not differ from the general one: http://www.1kadry.ru/#/document/130/51358/?step=47.
Attention
Separate structural according to Art. 55 of the Civil Code of the Russian Federation is a general concept. A separate subdivision is represented, as a rule, in the form of representative offices or branches. For more information on how to properly issue a job application, read more at the link.
In accordance with the labor legislation of Russia, employers maintain work books for all persons who have worked for them for more than five days, if for the latter the place of work occupied in the organization of this employer is the main one. So, according to the order, an authorized employee makes an entry in the work book about hiring in a separate unit. This record can be represented as follows: the heading is “Trudovik LLC”, in the first column - the serial number of the mark, in the second column - the date of employment according to the order, in the third column - “Employed in the Pervomaisky branch in the sales department for the position of a sales agent", in the fourth column - the date and number of the administrative document.
Further, a personal card is drawn up for the new employee according to the form No. T-2 approved by Decree No. 1, the information included in which must be certified by the signature of the employee.
Important
That is, a subdivision is territorially isolated from the parent organization if it is located in the territory where tax accounting and tax control is carried out by a different tax authority than the one in which the organization is registered as a taxpayer. Job creation is the second criterion for recognizing a unit as separate. At the same time, the workplace is understood as the place where the employee must be in connection with his work and which is directly or indirectly under the control of the employer.
6 art. 209 of the Labor Code of the Russian Federation). Therefore, when considering disputes about the presence (absence) of a separate subdivision, arbitration courts, first of all, pay attention to this point.
Characteristic features of a separate structural unit:
If a separate subdivision is a branch of a legal entity, then it performs all the functions of the latter, including the functions of a representative office. At the legislative level, how personnel accounting in organizations with separate divisions should be carried out has not been established.
What is a separate subdivision and who manages it A separate subdivision (OP) in accordance with paragraph 2 of Art. 11 of the Tax Code of the Russian Federation is defined as any subdivision that is territorially separate from the organization. According to this document, the basis for recognizing the status of an EP is the availability of equipped stationary (created for a period of more than one month) jobs at its location. The content of information about the OP in the company's constituent documents and the powers vested in it are not important in this case. The opening of a separate subdivision is accompanied by the issuance of an appropriate order. If necessary, an order is issued, according to which a separate subdivision is transferred under the leadership of a person appointed by the head of the organization. However, this measure is not mandatory if we are talking about the OP as such (and not about a branch or representative office).
However, this is a local document, its application is mandatory only in the subdivisions of Russian Railways. Employment contract with the head of a separate subdivision When preparing the text of an employment contract with the head of a separate structural unit of an organization, regardless of its organizational and legal form, the following must first be borne in mind. Firstly, the position of the head of a separate structural unit is not identical to the positions of the heads of the linear divisions of the organization (heads of departments, bureaus, departments, services, etc.). The head of a separate structural unit, as a rule, is endowed with broader functions and powers.
Info
In the case of transferring authority to manage labor relations directly to the head of the branch / representative office, it is very important to correctly draw up the relevant documentation: a power of attorney, regulations on the representative office / branch, an order to appoint a person responsible for storing the seal, processing and storing work books, etc. both options is the procedure for compiling the staffing table, internal labor regulations and other local regulations. The staffing table is approved by the relevant order on the organization, and contains all separate divisions.
The original of this act is kept at the main office, and in each separate subdivision there is an extract from it, certified by an authorized person. The internal labor schedule is approved by the head of the organization with the participation of the representative body of employees.
"Personnel issue", 2012, N 1
EMPLOYMENT CONTRACT WITH THE HEAD OF A SEPARATED UNIT
When registering an employment relationship with the head of a branch, representative office, all actions provided for by the current labor legislation should be carried out. In the article, we will consider the features of labor relations with the head of a separate subdivision, and also give a standard form of an employment contract with the specified person.
Article 55 of the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation) determines that a representative office is a separate subdivision of a legal entity located outside its location, which represents the interests of a legal entity and protects them.
A branch is a separate subdivision of a legal entity located outside its location and performing all or part of its functions, including the functions of a representative office.
Representative offices and branches are not legal entities. They are endowed with property by the legal entity that created them and act on the basis of the provisions approved by it.
If the organization has created branches and representative offices, then the charter of the organization must contain information about them (clause 5, article 5 of the Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies", clause 6, article 5 of the Federal Law dated December 26, 1995 N 208-FZ "On Joint Stock Companies", clause 5 article 5 of the Federal Law dated November 14, 2002 N 161-FZ "On State and Municipal Unitary Enterprises", clause 2 article 5 of the Federal Law of May 8, 1996 N 41-FZ "On production cooperatives").
According to paragraph 3 of Art. 55 of the Civil Code of the Russian Federation, heads of representative offices and branches are appointed by a legal entity and act on the basis of its power of attorney. Note that this rule is imperative and does not allow for broad interpretation.
Thus, the head of separate structural divisions acts on behalf of the organization (employer) on the basis of the position and power of attorney. This information must be reflected in the employment contract with the head of the branch or other separate subdivision.
Readers' attention should be drawn to the fact that the power of attorney and the employment contract must necessarily define the rights of the head of a separate subdivision to sign personnel documents on behalf of the employer (for example, orders for hiring, dismissal, relocation, etc.). Such powers of the head of the branch are determined by the parent organization, since, in accordance with Art. 55 of the Civil Code of the Russian Federation, in order for the head of the branch to have the right to hire and dismiss employees, it is necessary to consolidate these powers, for example, in an employment contract, a power of attorney.
In the absence of documentary confirmation of the authority of the head of the branch to sign personnel documentation, a situation may arise when an employee dismissed, for example, by the head of the branch, will be reinstated due to the fact that the documents were signed by a person who does not have the right to do so.
According to paragraph 20 of the Decree of the Plenum of the Supreme Court of the Russian Federation N 6, the Plenum of the Supreme Arbitration Court of the Russian Federation N 8 of July 1, 1996 "On some issues related to the application of the first part of the Civil Code of the Russian Federation", the powers of the head of the branch (representative office) must be certified by a power of attorney and not may be based only on the instructions contained in the constituent documents of the legal entity, the regulations on the branch (representative office), etc., or appear from the situation in which the head of the branch operates.
Thus, the main documents regulating the rights, duties, terms of reference of the head of the branch, representative office are:
Articles of association;
Regulations on the branch;
Power of attorney issued by the organization.
A power of attorney issued to the head of a branch or representative office must be drawn up in compliance with the rules specified in Art. 185 of the Civil Code of the Russian Federation, namely:
Have the signature of the head of the parent organization or another person authorized to do so by the charter of the parent organization;
Must be certified by the seal of the parent organization.
The power of attorney of the head and the regulation on a separate subdivision must necessarily contain an indication of the transactions that he is entitled to make. If there is such an indication, transactions made by the head of a branch (representative office) should be considered concluded on behalf of a legal entity.
Based on paragraph 2 of Art. 188 of the Civil Code of the Russian Federation, a legal entity that has issued a power of attorney to the head of a separate subdivision has the right to cancel the power of attorney or reassignment at any time, and the head of the separate subdivision to which the power of attorney has been issued - to refuse it.
Note! when drawing up personnel documents for employees of a separate subdivision, including its head, it is necessary to indicate the name of the branch, representative office without abbreviation, exclusion of individual words or other changes in the name specified in the charter.
With the head of the branch (representative office), as with any employee of the organization, an employment contract must be concluded, after which an order for employment is issued (form N T-1).
A feature of the employment contract with an employee of a separate subdivision is that it should reflect not only the place of work (for example, Vera LLC), but also indicate the specific separate subdivision and its location (part 2 of article 57 of the Labor Code of the Russian Federation ( hereinafter - the Labor Code of the Russian Federation)).
Conclusion of an employment contract
with the head of a separate division
First of all, we note that an employment contract with the head of a branch can be concluded both for an indefinite period and for a fixed period (fixed-term employment contract). If a fixed-term employment contract is concluded with the head of a separate subdivision, then its validity period is determined by the constituent documents of the organization or by agreement of the parties (Article 275 of the Labor Code of the Russian Federation). 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 Art. 57 of the Labor Code of the Russian Federation must be indicated in the employment contract.
Labor relations with the head of a separate subdivision may be preceded by any procedures specified in Art. 16 of the Labor Code of the Russian Federation, the cases and procedure for which are established by labor legislation and other regulatory legal acts containing labor law norms, or the charter (regulations) of the organization (holding a competition, election or appointment to a position, etc.).
As a rule, the head of the organization independently decides on the appointment of a person to the position of head of a separate subdivision, unless otherwise established by regulatory legal acts and (or) documents of the organization. For example, in accordance with Art. 11.1 of Federal Law No. 395-1 of December 2, 1990 "On Banks and Banking Activities" (hereinafter referred to as Law No. 395-1), a credit institution is obliged to notify the Bank of Russia in writing of all proposed appointments to the positions of the head (his deputies) of branches credit organization. The Bank of Russia, within a month from the date of receipt of the notification, agrees to the indicated appointments or submits a reasoned refusal in writing on the grounds provided for in Art. 16 of Law N 395-1. It should be noted that compliance with the above procedure is not mandatory for heads of representative offices and heads of other separate structural divisions of a credit institution.
As mentioned above, according to Art. 57 of the Labor Code of the Russian Federation, the place of work is mandatory for inclusion in an employment contract with the head of a separate structural unit, and if the organization’s subdivision is located in another locality, that is, in a locality outside the administrative-territorial boundaries of the corresponding settlement where the organization itself is located, - place of work indicating this unit and its location. In this case, the Labor Code of the Russian Federation does not establish any exceptions.
In turn, when applying the provisions of Art. 72.1 of the Labor Code of the Russian Federation on the transfer of a manager to another job, it should be taken into account whether the labor functions of the manager and (or) the location of the structural unit will be changed. If the employment contract with the head of a separate structural unit specifies only the type of unit without specifying its location and full name, for example, a branch, then we can talk about transferring to another job only if an employee is appointed, for example, to the position of head of a representative office, if All other things being equal, we are talking about displacement.
In the employment contract, it is also necessary to distinguish between the labor function and powers of the head of the unit. The powers defined by the employer in local acts and (or) defined in the power of attorney issued to the head of a separate subdivision, if they are not specified in the employment contract, are subject to change by the employer unilaterally, which does not entail the consequences established by Art. 72.1 of the Labor Code of the Russian Federation. We can talk, for example, about changing the scope of powers in terms of concluding transactions for a certain amount of money, etc.
According to Art. 70 of the Labor Code of the Russian Federation for heads of branches, representative offices and other separate structural divisions of organizations, a probationary period for employment cannot be set for more than six months.
In accordance with Art. 73 of the Labor Code of the Russian Federation, an employment contract with the heads of branches, representative offices or other separate structural divisions, their deputies who, in accordance with a medical report, need temporary or permanent transfer to another job, if the transfer is refused or the employer does not have the corresponding job, is terminated in accordance with paragraph 8 hours 1 tbsp. 77 of the Labor Code of the Russian Federation. The employer has the right, with the written consent of these employees, not to terminate the employment contract with them, but to suspend them from work for a period determined by agreement of the parties. During the period of suspension from work, wages are not accrued to these employees, with the exception of cases provided for by the Labor Code of the Russian Federation, other federal laws, a collective agreement, agreements, and an employment contract.
The procedure for terminating employment contracts with the head
upon termination of activities of branches and representative offices
In accordance with Part 4 of Art. 81 of the Labor Code of the Russian Federation in the event of termination of the activities of a branch, representative office or other separate structural unit of an organization located in another locality, termination of employment contracts with employees of this unit is carried out according to the rules provided for in cases of liquidation of the organization.
Another locality is understood as an area outside the administrative-territorial boundaries of the corresponding settlement, which is indicated in the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation". In other words, the area is limited by the administrative-territorial boundaries of the city, town, village and other settlement.
As explained by the Constitutional Court of the Russian Federation in Ruling No. 144-O of April 21, 2005, termination of an employment contract with employees working in a separate structural unit of an organization located in another locality is carried out according to the rules provided for in cases of liquidation of an organization, only when the employer decided to terminate the activities of such a structural unit, since this actually means the termination of the activities of the organization itself in this area.
Thus, if the employer dismisses the head of the branch, then he is obliged to offer the dismissed employee another job only in the area where he actually works. In the absence of other separate subdivisions in this area, the director of the separate subdivision is dismissed according to the procedure provided for during liquidation.
Considering the special legal status of the head of an organization and heads of separate subdivisions, the current legislation equates the fact of their violation of labor legislation and other acts containing labor law norms, the terms of a collective agreement, agreements to the fact of committing a disciplinary offense. Article 195 of the Labor Code of the Russian Federation determines that these officials may be subject to disciplinary liability in case of confirmation of the fact of a violation, up to and including dismissal in the manner prescribed by Art. 193 of the Labor Code of the Russian Federation.
At the same time, a disciplinary sanction in the form of dismissal may be applied to the head of a separate structural unit on the grounds provided for in paragraphs 9 and 10 of part 1 of Art. 81 of the Labor Code of the Russian Federation: for a single gross violation of labor duties and in the event of an unreasonable decision that entailed a violation of the safety of property, its misuse or other damage to the property of the organization. Moreover, on the indicated grounds, the employment contract can be terminated only with the heads of branches and representative offices.
It should be emphasized that the provisions of Art. Art. 73, 81 and 195 of the Labor Code of the Russian Federation also apply to deputy heads of separate structural divisions of the organization.
Here is a standard form of an employment contract with the head of a separate structural unit.
_________________________ "__" _____________ 20__
(city, town)
______________________________________________________________________,
(full name of the employing organization)
represented by ___________________________________________, acting on the basis of
(position, full name)
Hereinafter referred to as the "Employer",
on the one hand, and _________________________________________________________,
(Full name of the employee)
hereinafter referred to as the "Employee" who is appointed to
position _________________________________________________________________
(name of position and separate structural
Hereinafter referred to as the "Division", with
departments of the organization)
on the other hand, have entered into this employment contract as follows:
1. Subject of the employment contract
1.1. This employment contract regulates the relationship between the Employer and the Employee related to the performance by the latter of the duties of the head of a separate structural unit of the Employer.
1.2. Working for the Employer is for the Employee: ____________________
(basic, by
_________________.
part-time)
1.3. This employment contract is concluded for an indefinite period.
1.4. This employment contract on the basis of (because of) ________________ in accordance with the requirements of Art. 59 of the Labor Code of the Russian Federation is concluded for a period of ______________.
1.5. The employee begins to perform his duties from "__" _________ 20__.
1.6. The employee is given a trial period of _____ months (weeks, days).
1.7. This employment contract comes into force on "__" _________ 20__.
2. Rights and obligations of the Employee
2.1. The employee manages the activities of a separate
structural unit of the Employer in the manner determined by ___________
____________________________________________.
(charter, regulation on the division, etc.)
2.2. In internal organizational relations, the Employee, as the head of a separate structural unit of the Employer, acts within the powers granted to him by the regulation on the unit, job description (other local regulatory legal acts of the Employer), in external civil and economic relations related to the implementation of the activities of the unit, on behalf of the Employer on on the basis of a power of attorney issued to him.
2.3. Represent the interests of the Employer in relations with employees of a separate structural unit The employee has the right within the powers determined in accordance with the labor legislation of the Russian Federation by the constituent documents and local regulations of the Employer, in particular: ____________.
2.4. The employee has the right to:
Providing him with work stipulated by this employment contract;
Ensuring safety and working conditions that comply with state regulatory requirements for labor protection;
Timely and in full payment of wages in accordance with their qualifications, complexity of work, quantity and quality of work performed;
The employee has other rights provided for by the labor legislation of the Russian Federation, this employment contract.
2.5. The employee is obliged:
To conscientiously fulfill his labor duties assigned to him by this employment contract, to comply with the established labor standards;
Comply with the internal labor regulations in force at the Employer, the requirements for labor protection and ensuring labor safety, other local regulations of the Employer that are directly related to the work activity of the Employee, with which the Employee was familiarized against signature;
Observe labor discipline;
Take care of the property of the Employer, including the property of third parties held by the Employer, if the Employer is responsible for the safety of this property, and other employees;
Immediately inform the Employer or immediate supervisor about the occurrence of a situation that poses a threat to the life and health of people, the safety of the Employer's property, including the property of third parties held by the Employer, if the Employer is responsible for the safety of this property, the property of other employees;
During the term of this employment contract and after its termination for _____ years, do not disclose a legally protected secret (state, commercial, official and other secret) that has become known to the Employee in connection with the performance of his labor duties;
The employee is obliged to perform other duties stipulated by the labor legislation of the Russian Federation and this employment contract.
3. Rights and obligations of the Employer
3.1. The employer has the right:
Require the Employee to conscientiously fulfill the obligations under this employment contract;
Adopt local acts directly related to the work activity of the Employee, including internal labor regulations, requirements for labor protection and ensuring labor safety;
Bring the Employee to disciplinary and financial liability in the manner prescribed by the Labor Code of the Russian Federation, other federal laws;
Encourage the Employee for conscientious efficient work;
Unilaterally change the content of the powers of the Employee as the head of a separate structural unit without changing the labor function;
The employer has other rights provided for by the labor legislation of the Russian Federation, this employment contract.
3.2. The employer is obliged:
Provide the Employee with work stipulated by this employment contract;
Ensure the safety and working conditions of the Employee that comply with state regulatory requirements for labor protection;
Provide the Employee with equipment, tools, technical documentation and other means necessary for the performance of his labor duties;
Pay in full the wages due to the employee on time;
The employer performs other duties stipulated by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations and this employment contract.
4. Remuneration and social guarantees
4.1. For the performance of labor duties stipulated by this employment contract, the Employee is paid a salary in the amount of:
Official salary, wage rate in the amount of _________ per month;
Compensation payments: ________________________, the payment of which is made in the manner prescribed by _______________________;
Incentive payments: ____________________________, the payment of which is made in the manner prescribed by ____________________________.
4.2. Payment of wages to the Employee is made in the terms and in the manner established by the collective agreement, internal labor regulations, other local regulations of the Employer.
4.3. The Employee is subject to benefits, guarantees and compensations established by the legislation of the Russian Federation and local regulations of the Employer.
5. Working time and rest time
5.1. The employee is assigned the following working hours
time __________________________________________________________________.
(normal, reduced, part-time)
5.2. Working hours (working days and weekends, start and end times) are determined by the internal labor regulations in force at the Employer.
5.3. The following features of the mode of work are established for the employee _________________________.
5.4. The employee is provided with an annual basic paid leave of ____ calendar days.
5.5. The employee is provided with an annual additional paid
leave of duration _______ in connection with _______________________________
(the basis for establishing
________________________.
extra leave)
6. Change and termination of the employment contract
6.1. Each of the parties to this employment contract has the right to raise with the other party the question of supplementing it or otherwise amending the employment contract, which, by agreement of the parties, are drawn up by an additional agreement, which is an integral part of the employment contract.
6.2. This employment contract is terminated on the grounds established by the Labor Code of the Russian Federation and other federal laws.
7. Final provisions
7.1. Labor disputes and disagreements of the parties regarding compliance with the terms of this employment contract are resolved by agreement of the parties, and if it is impossible to reach an agreement, they are considered by the labor dispute commission and (or) the court in the manner established by the legislation of the Russian Federation.
7.2. In the part not provided for by this employment contract, the parties are guided by the legislation of the Russian Federation, constituent documents, the collective agreement, local regulatory legal acts of the Employer.
7.3. This employment contract is concluded in two copies, having the same legal force. One copy is kept by the Employer in the personal file of the Employee, the second - with the Employee.
