Director of a separate division carries out management of the structural unit of the parent enterprise entrusted to him. During the course of his labor activity, he retains all the rights and obligations of an employee, while he exercises the functions of an employer in relation to the employees of a separate unit. Learn more about the requirements for director of a separate division, you will learn from the article below.
How are labor relations built with the director of a branch (representative office) and is it possible to conclude a fixed-term employment contract with him?
Due to the fact that representative offices and branches as separate divisions (hereinafter also referred to as OPs) are not independent legal entities and act on the basis of specially developed provisions, the decision to hire a director of such a structural unit is made, as a rule, by the head of the parent enterprise. Also, a decision on the appointment of a director of a private enterprise can be made at a general meeting of members of the economic company, while its head is given instructions to conclude employment contract. The procedure for hiring a branch director is usually described in detail in the company's charter.
Labor relations with the director of the EP arise on the basis of a concluded employment contract (Article 16 of the Labor Code), these managers act on the basis of a power of attorney from legal entity(clause 3 of article 55 of the Civil Code of Russia). If a separate division is created to perform work, the completion date of which is unknown, a fixed-term employment contract can be concluded with its director (paragraph 7, part 1, article 59 of the Labor Code).
Also, a fixed-term employment contract can be concluded with the director of an EP if a candidate is hired to replace a temporarily absent manager, for example, one on maternity leave (paragraph 1 of the above norm).
What responsibilities are reflected in the job description of the branch manager?
Job description of the head of a separate department, which every employee hired for this position must familiarize himself with, contains a list of all his rights, duties and responsibilities for their failure to fulfill them. In particular, the job responsibilities of the branch manager, which are prescribed in his instructions, may include:
- Security:
- economic activities of a separate division of the organization;
- timely and successful implementation of schedules/plans, accepted obligations, functions assigned by the parent organization to the branch in accordance with its regulations;
- conducting training and testing knowledge on occupational safety (occupational safety) of workers, as well as their training and certification on safety issues;
- employees undergoing mandatory medical examinations;
- special clothing and personal protective equipment;
- safe use of equipment, structures, structures, as well as maintaining them in proper technical condition;
- compliance with sanitary and epidemiological standards;
- safety of confidential information;
- staffing the structural unit with qualified specialists and rational use their knowledge and skills.
- Organization:
- development of technical documentation, job descriptions, occupational safety instructions for branch employees;
- monitoring compliance with discipline (labor and production), internal labor regulations, occupational safety requirements, sanitary and epidemiological standards, safety rules (fire, industrial, environmental), secrecy regime (if any), non-disclosure of confidential information by branch employees;
- developing work motivation, increasing the work activity of employees;
- implementation of automation systems for management and administrative functions.
What is the responsibility of the branch director to the company?
Labor legislation does not provide for the imposition of full financial responsibility on the director of the branch. This opportunity exists only for directors, their deputies and chief accountants of a legal entity (Articles 242 and 277 of the Labor Code).
You cannot enter into a written agreement with the director (head) of a branch (other EP) on full financial responsibility for the valuables entrusted to him, according to Art. 244 of the Labor Code, since this position is not indicated in the list of positions with which it is allowed to conclude such an agreement, approved. Resolution of the Ministry of Labor dated December 31, 2002 No. 85. This employee may incur financial liability only within the limits of his average monthly earnings (Article 241 of the Labor Code), except in cases provided for by law. The latter include, in accordance with Part 1 of Art. 243 Labor Code, intentional infliction of damage to the employer, criminal negligence, etc.
In addition to financial liability, the head of the branch may also be brought to disciplinary, administrative and criminal liability. Also, the employment contract with him may provide for liability for failure to comply with job responsibilities, in local regulations - the possibility of imposing sanctions for damage caused to the enterprise. Possible sanctions include deprivation of bonuses, dismissal due to loss of confidence, etc.
Where to find a sample employment contract with the head of a branch (representative office)
All essential conditions that must be contained in an employment contract with an employee are specified in Art. 57 TK. However, when drawing up an employment contract (especially a fixed-term one) with the head of a branch, some personnel officers may have difficulties related to the specifics of the activities of such a unit and its working conditions. To make it easy to develop your own employment contract with this employee, we offer to download a ready-made sample on our website.
Thus, the requirements for the director of an EP depend on the scale of the powers entrusted to him and property resources. Their list is also influenced by the specifics of the activities of a given structural unit and the volume of tasks assigned to it.
How is recruitment carried out in a separate department?
Organizations that have separate divisions quite often make mistakes in the preparation of staff documentation. Therefore, we will devote this article to an analysis of how hiring can be carried out in a separate division, who can fill out employee work books, whether a branch can have its own staffing table, etc.
What is a separate structural unit?
According to Article 55 of the Civil Code of the Russian Federation, a separate division is a representative office of a legal entity located outside the latter’s permanent location, representing its interests and ensuring their protection.
Characteristic features of a separate structural unit:
If a separate division is a branch of a legal entity, then it performs all the functions of the latter, including the functions of representation.
At the legislative level, how personnel records should be carried out in organizations with separate divisions has not been established. Therefore, the right to choose whose responsibilities will include the hiring and dismissal of personnel of a separate unit, who will have to issue orders relating to work activities, where work books are stored and who fills them out, etc. provided to the employer.
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. This organization of document flow provides for the following:
Registration of an employee to a branch/representative office
Hiring to separate structural units is carried out by concluding an employment contract with the applicant, which is signed by the head of this unit on the part of the employer.
It is worth noting that in this case the employer is not the branch/representative office, but the organization itself represented by the head of the institution. The preamble of the cooperation contract must indicate: “Limited liability company “Trudovik” represented by the director of the Pervomaisky branch of LLC “Contact” Ostap Ostapovich Astapov, acting under power of attorney No. 111111 dated 10.10.14, hereinafter referred to as “Employer”.”
According to Article 57 of the Labor Code of the Russian Federation, when applying for employment in a separate structural unit, the contract must indicate that the proposed place of work will be provided in the specified representative office/branch, as well as the location of the latter.
The contract details must indicate the details of the parent organization, that is, for the above example, Trudovik LLC.
Before signing a cooperation contract, the employee must be familiar with the following:
- collective agreement (if any);
- internal regulations;
- other local regulations that directly relate to labor activity in the position being filled.
After concluding a cooperation agreement, the head of the branch/representative office issues an order in form No. T-1 on hiring the employee. This order must be presented for familiarization against signature to the new employee within three days from the moment he begins to perform the job duties established by the contract.
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 held 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 employment in a separate unit. This entry can be presented as follows: the title 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 - “Hired to work at the Pervomaisky branch in the sales department for the position sales agent", in the fourth column - the date and number of the administrative document.
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Choosing a method for conducting personnel records in a separate department
Analyzing the above, it can be noted that how personnel records will be carried out in a separate structural unit depends on the chosen method of personnel document flow - centrally or locally. Both options have both pros and cons, so the choice here depends entirely on the preferences of the employer.
With centralized regulation labor relations the procedure and timing for redirecting personnel documentation should be carefully considered and documented, taking into account the deadlines defined by labor legislation. In the case of transferring powers to manage labor relations directly to the head of the branch/representative office, it is very important to correctly draw up the relevant documentation: power of attorney, regulations on the representative office/branch, order appointing the person responsible for storing the seal, registration and storage work records, etc.
Common to both options is the procedure for drawing up the staffing table, internal labor regulations and other local regulations. The staffing table is approved by the relevant order of the organization, and contains all separate divisions. The original of this act is kept in the main office, and in each separate division there is an extract from it certified by an authorized person.
The internal labor regulations are approved by the head of the organization with the participation of a representative body of employees. The original of these Rules is located in the head office, and copies are issued for divisions (branches, representative offices), which are certified by an authorized person with a seal and signature.
When choosing a method for conducting personnel records management in a separate structural unit, you need to pay attention to the analysis of all existing risks and opportunities of the organization, including territorial distance from the main office, the specifics of the activity, possible ways exchange of documentation, and so on. In addition, all deadlines established by the legislator must be strictly observed, since otherwise, not only fines may be imposed on the relevant officials, but also administrative suspension of the organization’s activities for a significant period.
People often read along with this material:
Personnel records in a separate division
Good afternoon.
The Labor Code of the Russian Federation states:
Article 57. Contents of the employment contract
The following conditions are mandatory for inclusion in an employment contract:
Good evening!
The Labor Code of the Russian Federation does not specify what should be understood by place of work (place of work and workplace- not identical concepts).
Also, the concepts of a structural unit and a separate structural unit should not be equated.
As follows from paragraph 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 On the application by courts Russian Federation Labor Code of the Russian Federation, structural units should be understood as branches, representative offices, departments, workshops, sections, and so on, and by other area - an area outside the administrative-territorial boundaries of the corresponding locality.
In turn, administrative-territorial boundaries are reflected in the All-Russian Classifier of Objects of Administrative-Territorial Division OK 019-95 (approved by Resolution of the State Standard of Russia dated July 31, 1995 N 413) (hereinafter referred to as OKATO) and the All-Russian Classifier of Municipal Territories OK 33-2005 ( approved by Order of Rostekhregulirovaniya dated December 14, 2005 N 310-ST) (hereinafter referred to as OKTMO).
Thus, the obligation to indicate in the employment contract the location of a separate subdivision of the Labor Code of the Russian Federation is required only if the separate subdivision is located in a location other than the head office of the organization, outside the administrative boundaries of the locality indicated in the constituent documents of the employer as the place of state registration (clause clauses 2, 3, Article 54 of the Civil Code of the Russian Federation).
Indication of the structural unit in accordance with Part 4 of Art. 57 of the Labor Code of the Russian Federation is not among mandatory conditions employment contract.
The relocation of an employee from the same employer to another structural unit located in the same area does not require the employee’s consent (Article 72.1 of the Labor Code of the Russian Federation), if this does not entail changes in the terms of the employment contract. If the structural unit is clearly named in the employment contract, then if the employer wants to change it, we are no longer talking about moving, but about transferring to another job (Part 1 of Article 72.1 of the Labor Code of the Russian Federation).
Information about a separate unit is entered into the work book if it is indicated in the employment contract as essential ((clause 3.1 of the Instructions for filling out work books, approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 N 69).
It seems that when employees are hired to work in structural units within the administrative-territorial boundaries of the city of Moscow, it is not necessary to indicate a specific structural unit as their place of work. If employees are hired to work in structural units located in the Moscow region (in the corresponding settlements), the employment contracts concluded with them must indicate the place of their work indicating a separate structural unit.
At the same time, experts consider it possible to indicate the location of a separate structural unit in a general way, by the name of the locality.
Here you can see for yourself which is more profitable: the answer to the question whether it is in the interests of the employer to specify in the employment contract the specific workplace of the employee, down to the department or unit (mechanism) on which the employee works, or not, is ambiguous. For the purpose of more efficient and rapid transfer of personnel from one structural unit to another within the same locality (from one unit (mechanism) to another), it makes sense not to specify this clause of the employment contract, since in this case this transfer will be qualified as movement and will not require the employee’s consent. On the other hand, indicating a specific workplace in an employment contract can help the employer, for example, if necessary, prove the absence of an employee from the workplace.
As for additional documentation, for all departments you (according to current practice) must have orders for their creation; according to the staffing arrangement, it must be traced in which specific department each employee works; in employment orders (employment contracts, work books ) a separate structural unit is indicated in cases that are mandatory (see above), unless otherwise practiced in your organization (in particular, details for all structural units indicating the specific addresses of their locations).
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News and analytics Legal consultations (practice) Labor law How to make an entry in the work book when hiring an employee (citizen of the Russian Federation) to a representative office of a foreign organization? What must be indicated in the work book when making an entry about the place of work (the name of the parent organization or the full name of the representative office as a structural unit)? How to make an entry in the employee’s dismissal book, what seal and whose signature should it be certified with? How to correctly issue orders for hiring and dismissal?
How to make an entry in the work book when hiring an employee (citizen of the Russian Federation) to a representative office of a foreign organization?
In accordance with Art. 11 of the Labor Code of the Russian Federation on the territory of the Russian Federation, the rules established by labor legislation and other acts containing labor law norms also apply to labor relations with the participation of foreign citizens, stateless persons, organizations created or established by foreign citizens, stateless persons or with their participation , international organizations and foreign legal entities, unless otherwise provided by an international treaty of the Russian Federation.
In Art. 13 of the Labor Code of the Russian Federation states that federal laws and other regulatory legal acts of the Russian Federation containing labor law norms apply to labor relations (and other directly related relations) arising throughout the territory of the Russian Federation, if these laws and other regulatory legal acts do not otherwise provided.
Thus, the labor relations of employees of a representative office of a foreign organization located on the territory of the Russian Federation with the employer are subject to the requirements of the labor legislation of the Russian Federation.
Article 20 of the Labor Code of the Russian Federation establishes that the parties to labor relations are the employee and the employer. Employers are individuals or legal entities. Branches and representative offices, being structural divisions of an organization, do not have the status of a legal entity (Article 55 of the Civil Code of the Russian Federation).
Thus, the employer for a citizen of the Russian Federation applying for work in a representative office of a foreign organization will be a legal entity - the parent organization. The rights and obligations of the employer in labor relations are exercised by: the management bodies of a legal entity (organization) or persons authorized by them in the manner established by laws, other regulatory legal acts, constituent documents of a legal entity (organization) and local regulations (Article 20 of the Labor Code of the Russian Federation). Thus, it is the parent organization that determines who will have the right to sign the relevant documents (as a rule, this is, first of all, the head of the structural unit). In this case, the powers of the manager and other persons authorized to sign personnel documents can be confirmed:
Regulations on this unit, approved by the head of the parent organization;
A power of attorney from the head of the organization, which defines the powers of the head of a separate structural unit, etc.
When making an entry in the work book about the place of work of an employee of the representative office, it is necessary to keep in mind that the form and procedure for filling out work books are established by Decree of the Government of the Russian Federation dated April 16, 2003 N 225 “On Work Books” and Decree of the Ministry of Labor of Russia dated October 10, 2003 N 69 “On approval of the Instructions for filling out work books" (hereinafter referred to as the Instructions).
In accordance with the third paragraph of clause 3.1 of the Instructions, in column 3 of the “Work Information” section of the work book, an entry is made about acceptance or appointment to a structural unit of the organization, indicating its specific name (if the condition of working in a specific structural unit is included in the employment contract as essential).
According to paragraph two of part two of Art. 57 of the Labor Code of the Russian Federation, the indication of a separate structural unit and its location, when an employee is hired to work in a branch, representative office or other separate structural unit of an organization located in another locality, is an essential condition of the employment contract.
Thus, in in this case in the work book it is necessary to indicate the specific name of a separate structural unit of the foreign organization.
Regarding the correct execution of orders for hiring and dismissal.
On hiring, an order is issued in the unified form N T-1, approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 N 1. According to the instructions for filling out this form, when drawing up an order (instruction) on hiring an employee(s), the name of the structural unit, position (specialty, profession), test period, if the employee is subject to a test when hiring, as well as the conditions of employment and the nature of the work to be done (for example, part-time, by way of transfer from another organization, to replace a temporarily absent employee, to perform certain work and other). Termination of an employment contract is formalized by order (instruction) of the employer in the unified form T-8, approved by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 N 1. Orders are signed by the head of the organization or an authorized person.
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Expert of the Legal Consulting Service GARANT
Rachenkova Yulia
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Reviewer of the Legal Consulting Service GARANT
Hiring a head of a separate department
Dear colleagues, good morning! Please tell me how to hire the head of a separate division (in my case, the head of a distribution center), if the head office is in St. Petersburg, and the distribution center will be in Pskov, but the manager’s tasks include finding premises, etc.
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The parent organization (GO) is obliged to hire employees in separate structural units (SU), including their managers.
The work books of employees of the EP are stored in the Civil Defense, unless otherwise established by order of the manager. For example, by order of the head of the Civil Defense in the unit, a person is appointed who is responsible for processing personnel documents and storing work records.
An employment contract with employees of an OP located in another area must indicate the name of a separate structural unit and its location (Part 2 of Article 57 of the Labor Code of the Russian Federation).
The probationary period for managers of branches, representative offices or other separate structural divisions of organizations cannot exceed six months (Part 5 of Article 70 of the Labor Code of the Russian Federation).
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Opening a branch, representative office, separate division: what needs to be taken into account
Creating a branch, a separate division, a representative office - all these are traditional ways to expand a business. At the same time, the legal meaning of these structural units of the organization in civil and tax legislation does not coincide. The order in which they are created is also fundamentally different. One procedure is provided for branches and representative offices, and a completely different one for separate divisions. Our article will help you understand the nuances.
Understanding the concepts and powers
According to the Civil Code of the Russian Federation, a branch performs all or part of the functions of its legal entity. A representative office performs only representative functions of its legal entity.
In the Tax Code of the Russian Federation, the concept of “separate division” is not considered as independent; it is used only for the purposes of the Tax Code of the Russian Federation itself and for taxation. That is, a separate division is not distinguished as a new type of division, different from branches and representative offices. Article 11 of the Tax Code of the Russian Federation directly states that the main feature of a separate division is the actual presence of an equipped stationary workplace.
The logic in this case is this: if there is an employee, then he is paid a salary, and accordingly there are deductions from the salary. And if the employee also receives money from clients, then this location is a source of income, etc.
Therefore, when making a choice between a branch, a representative office and a separate division, be guided by the following approach.
If you are not just creating remote jobs, but, for example, an office in which you will work with clients, conclude contracts, or you just need a beautiful official status, then it is better to create a branch or representative office. And if you have a simplified tax system and you do not want to make changes to the charter of a legal entity (since branches and representative offices must be indicated in the charter and you cannot be with them on the simplified tax system), then preference should be given to a separate division.
Branches, representative offices and other separate divisions are not independent legal entities. This means that they do not have independent rights and obligations, they are never a party to a transaction or a party to a court hearing, they do not submit tax returns on their own behalf and do not pay taxes - all this is done by a legal entity.
But these subjects may have rights to a manager. The presence of powers of the head of a separate division (as well as a branch and representative office) does not depend on the fact of his appointment or the title of the position, and not even by virtue of the enumeration of his powers in the Regulations on the branch (representative office), but solely on the presence of a power of attorney from the head of the legal entity. In other words, the actions of the head of a separate division (branch, representative office) are no different from the actions of another representative of the Company who has a power of attorney with similar powers.
The Information Letter of the Supreme Arbitration Court of the Russian Federation dated May 14, 1998 No. 34 directly stipulates that a separate division that is not a legal entity can bring a claim only on behalf of the legal entity. The statement of claim signed by the head of the separate division must be accompanied by a power of attorney (or a copy thereof) of the legal entity confirming the authority to sign the statement of claim on behalf of the legal entity.
No less important is the issue of opening a separate bank account for a separate division (branch, representative office). Instruction of the Bank of Russia dated September 14, 2006 No. 28-I directly states the possibility of opening an account for a legal entity, but for “conducting operations” by a branch or representative office. Based on these instructions, it follows that the account is opened for the organization itself.
As for the individual name. then a separate division (branch, representative office) can have it, although this is not at all necessary (the law does not provide for such an obligation).
The procedure for creating branches, representative offices and separate divisions differs significantly, so we will consider it in more detail.
The procedure for creating branches and representative offices
First of all, it is necessary to decide on the creation of a branch and representative office. This decision is made by the general meeting of participants of the legal entity; it must be formalized in a protocol or decision (if the company has one participant).
The decision to create a branch (representative office) may also be made by the board of directors. This possibility must be provided for in the charter. However, even if such a possibility is provided for in the charter, we recommend that the creation of a branch be formalized by one decision (protocol) - general meeting participants. And it will reflect the creation of the branch, as well as the decision to amend the charter. The fact is that the creation of a branch (representative office) involves making changes to the charter. The decision to amend the charter can only be made by the general meeting of the company's participants.
According to Article 55 of the Civil Code of the Russian Federation. it is necessary to include “information” about the branch (representative office) in the charter. The law is silent about what information exactly, however, given the current practice, in most cases everything is limited to the address of the branch (representative office) and its name (if one is assigned).
Regulations on the branch, representative office
There is no deadline for approval of the Regulations, but it will be simpler and more convenient if such a decision is made simultaneously with the decision to create a branch or representative office (i.e. in the same Protocol).
The regulations on the branch (representative office) can be regarded as an internal document of the organization. The authority to approve the Regulations on the branch (representative office) is vested in the general meeting of participants or the board of directors (if this body is provided for by the organization’s charter).
So, to register a branch (representative office) in the Unified State Register of Legal Entities with amendments to the charter of a legal entity, the following documents must be submitted to the registration department of the Federal Tax Service (at the main location of the company):
1) minutes of the meeting (decision of the participant) in which 2 decisions are made:
a) on the creation of a branch (representative office);
b) on amendments to the charter;
2) application 13001 with an attachment for the branch or representative office being created (in form 13001 this is sheet “D”);
3) amendments to the charter (approved by the minutes and providing information about the branch, representative office) in two copies.
From July 1 of the year, changes to the charter must be submitted in two copies. After registration, the tax authority will issue you a second copy of the changes with the appropriate mark.
Tax registration of a branch or representative office is carried out by the tax authorities independently on the basis of data in the Unified State Register of Legal Entities in the order of inter-inspectorate exchange.
The procedure for creating a separate division
Unlike branches and representative offices, the emergence of a separate division may not be accompanied by any management documents, except for documents that actually confirm the establishment of a stationary workplace (for example, a lease agreement and an order to hire a person who will be located there).
Moreover, when creating a separate division, there is no need to approve the Regulations on this separate division, and you can also do without appointing the head of a separate division and, accordingly, without issuing a power of attorney to him (for example, you just hired several additional ordinary employees who will be located in a remote office) .
Nevertheless, as a rule, some Order of the head of the legal entity is still issued (there is definitely no need to hold a general meeting of participants for this).
If we analyze labor legislation (after all, we are talking about new jobs), then it would be most appropriate and correct to issue an order to amend the staffing table and organizational structure legal entity (if there is one).
A Message in form C-09-3-1 is submitted to the tax authority. Neither the Order nor any other documents are attached to this message.
The notification must be submitted no later than 1 month from the date of creation of a separate unit. The message is submitted by the Federal Tax Service at the location of the organization (head office of the legal entity).
Violation of the deadline established by the Tax Code of the Russian Federation for filing an application threatens the taxpayer with a fine of 10,000 rubles. (clause 1 of article 116 of the Tax Code of the Russian Federation).
The current regulations also do not explain where exactly to expect to receive the Notification of Registration, but practice shows that it usually comes from the Federal Tax Service Inspectorate at the location of the separate division.
Employment contract with the head of a separate division
When registering an employment relationship with the head of a branch or representative office, all requirements stipulated by current legislation must be met.
In the article we will consider the features of labor relations with the head of a separate division, and also give an example of drawing up an employment contract with the specified person.
Article 55 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) determines that a representative office is a separate division of a legal entity, located outside its location, which represents the interests of the legal entity and protects them.
A branch is a separate division 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, heads of representative offices and branches are appointed by a legal entity and act on the basis of its power of attorney. Let us note that this norm is imperative and does not allow for a 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 units 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 division.
Readers' attention should be drawn to the fact that the power of attorney and employment contract must necessarily define the rights of the head of a separate division to sign personnel documents on behalf of the employer (for example, orders for hiring, dismissal, relocation, etc.). In the absence of documentary evidence of the manager’s authority to sign personnel documentation, a situation may arise when an employee who was 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, the Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 of July 1, 1996 “On some 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 regulations 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, obligations, terms of reference of the head of a branch or representative office are:
- articles of association;
– regulations 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 defined by the Civil Code of the Russian Federation.
It should be said that an employment contract must be concluded with the head of the branch (representative office), as with any employee of the organization, after which a hiring order is issued.
The conclusion of an employment contract with the head of a branch (representative office) is preceded by 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 locality where the organization itself is located, the place of work is indicated indicating this unit and its location (clause 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 include a probationary condition, which follows from Article 70 of the Labor Code of the Russian Federation. In this case, the trial period cannot 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 manager’s job functions and (or) the location of the structural unit will be changed. If the employment contract with the head of a separate division specifies only the type of division without specifying its location and full name, for example a branch, then transfer to another job can only be discussed if the employee is appointed, for example, to the position of head of a representative office, with all Other things being equal, we are talking about movement.
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 department. The powers determined by the employer in local acts and (or) defined in the power of attorney issued to the head of a separate division, 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 or representative office that, in accordance with a medical report, requires temporary or permanent translation to another job, if the transfer is refused or the employer does not have the corresponding work, it is terminated in accordance with paragraph 8 of part one of Article 77 of the Labor Code of the Russian Federation. The employer has the right, with the written consent of the said employee, not to terminate the employment contract with him, but to remove 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, except for cases provided for by the Labor Code of the Russian Federation, other federal laws, collective agreements, agreements, and employment contracts.
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) can be terminated by the employer if he makes an unfounded 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 the event of a one-time gross violation by the head of a branch (representative office) of his labor duties.
Based on Part 4 of Article 81 of the Labor Code of the Russian Federation, in the event of termination of the activities of a branch or representative office located in another locality, the termination of the employment contract with the employee - the head of this unit is carried out according to the rules provided for cases of liquidation of the organization. In other words, the employer, when terminating an employment contract with the head of a separate unit located in another area, in the event of termination of the activities of this unit, must perform all the same actions that are provided for dismissal due to the liquidation of the organization, that is:
– notify the employee-manager two months before dismissal;
– report to 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 a 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 Alexey Petrovich Petrov, hereinafter referred to as the “Employee”, who is appointed to the position of director of the branch “Branch”, hereinafter referred to as the “Division”, on the other hand, have entered into this employment contract about the following:
1. Subject of the employment contract
1.1. 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 the Employer’s Division, located at the address: Novosibirsk, st. Malaya 4/1.
1.2. The Employer provides the Employee with a job as a director of the Division.
1.3 Working conditions at the Employee’s workplace in terms of the degree of harmfulness and (or) danger are optimal (class 1) (based on the results of a special assessment of working conditions dated January 30, 2015).
1.4. Work for 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 given a probationary period of 3 months.
2. Rights and obligations of the Employee
2.1. The Employee manages the activities of the Employer's Division in the manner prescribed by the regulations on the division.
2.2. In internal organizational relations, the Employee, as the head of the Employer's Division, acts within the powers granted to him by the regulations on the division, job description (other local regulatory legal acts of the Employer), in external civil and economic relations related to the activities of the division, the Employee acts on behalf of the Employer on based on the power of attorney issued to him.
2.3. The Employee has the right to represent the interests of the Employer in relations with employees of the Division within the framework of 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 regulations regulatory requirements labor protection;
– timely and in 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 and this employment contract.
2.5. The employee is obliged:
– conscientiously fulfill his 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, labor protection and labor safety requirements, and other local regulations of the Employer directly related to the Employee’s work activities, with which the Employee was familiarized with signature;
– maintain labor discipline;
– take care of the Employer’s property, including the property of third parties owned 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 Employer’s property, including the property of third parties owned by the Employer, if the Employer is responsible for the safety of this property, and the property of other employees;
– during the validity period of this employment contract and after its termination for five years, not to disclose secrets protected by law (state, commercial, official and other secrets) that became known to the Employee in connection with the performance of his job duties;
– fulfill other duties provided for 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 the conscientious performance of duties under this employment contract;
– adopt local acts directly related to the Employee’s work activities, including internal labor regulations, labor protection requirements and occupational safety;
– bring the Employee to disciplinary and financial liability in the manner established by the Labor Code of the Russian Federation and other federal laws;
– encourage the Employee for conscientious, effective work;
– unilaterally change the content of the Employee’s powers as the head of the Division without changing the labor function;
The employer has other rights provided for by the labor legislation of the Russian Federation and 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 labor protection requirements;
– provide the Employee with equipment, tools, technical documentation and other means necessary to perform his job duties;
– pay the full amount of wages due to the employee on time;
– fulfills other duties provided for by labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations and this employment contract.
4. Remuneration and social guarantees
4.1. For the performance of labor duties provided for in this employment contract, the Employee is paid a salary of 50,000 (fifty thousand) rubles.
4.2. The employee is also provided with:
– bonus in the amount of 20,000 (twenty thousand) rubles quarterly;
– remuneration based on annual work results in the amount of 50,000 (fifty thousand) rubles.
4.3. Payment of wages, bonuses, and remuneration to the Employee based on the results of annual work is carried out within the time frame 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 compensation established by the legislation of the Russian Federation and local regulations of the Employer.
5. Working time and rest time
5.1. To perform his duties, the Employee is assigned an irregular working day.
5.2 The break for rest and food 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 annual basic paid leave 28 calendar days and 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 its addition or other changes to the employment contract, which, by agreement of the parties, are formalized 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 between 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. To the extent not provided for by this employment contract, the parties are guided by the legislation of the Russian Federation, constituent documents, collective agreement, and local regulations of the Employer.
7.3. This employment contract is concluded in two copies having equal legal force. One copy is kept by the Employer in the Employee’s personal file, the second copy is kept by the Employee.
7.4. Addresses and details of the parties:
Employer:
JSC "Natasha" General Director Ivanov V.A.
The requirements that any employment contract must comply with are established by Article 57 of the Labor Code (LC).
These requirements are mandatory for all employment contracts and are not related to any specific categories of employees or employers.
However, the presence of such clear requirements for the content of an employment contract is not enough to prepare a contract that meets the requirements of legal technology, and also takes into account legal status one or another category of workers.
In this situation, it is permissible to use standard forms of employment contracts proposed by executive authorities, but taking into account that they are advisory in nature.
The approximate form of an employment agreement (contract) was approved by Resolution of the Ministry of Labor of Russia dated July 14, 1993 No. 135. This form can also be taken as a basis for developing an employment contract, but taking into account the fact that it is applied to the extent that does not contradict the Labor Code.
Standard forms of employment contracts for certain categories of workers
For some categories of workers, there are also special standard forms of employment contracts.
Resolution of the Ministry of Labor of Russia dated July 23, 1998 No. 29 approved Recommendations for concluding an employment agreement (contract), reflecting the specifics of regulating social and labor relations in the North. These Recommendations and the form of a sample employment agreement (contract) attached to them were developed in order to provide practical assistance to organizations in concluding employment agreements (contracts) with employees hired to work in the Far North and similar areas. The document also applies to the extent that does not contradict the Labor Code.
Order of the Ministry of Economic Development of Russia dated March 2, 2005 No. 49 approved a model employment contract with the head of a federal state unitary enterprise.
In connection with the introduction of new remuneration systems for employees of federal budgetary institutions and federal government agencies, as well as civilian personnel of military units, institutions and divisions of federal executive authorities, Order of the Ministry of Health and Social Development of Russia dated August 14, 2008 No. 424n approved Recommendations for concluding an employment contract with a federal employee budgetary institution and its approximate form.
There is currently no standard form of employment contract with an employee of a separate structural unit. Exists standard contract with an employee of a branch or other structural unit, approved by Order of JSC Russian Railways dated August 17, 2006 No. 1708r. However, this is a local document, its use is mandatory only in the divisions of JSC Russian Railways.
Employment contract with the head of a separate division
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, you must first of all keep in mind the following.
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, directorates, services, etc.). The head of a separate structural unit, as a rule, is vested with broader functions and powers. It's about not only on organizing the activities of the unit in accordance with the goals and objectives set by the legal entity, but also on the implementation of certain powers of the employer in relation to the employees of the separate unit.
Secondly, a special place among the acts that determine the legal status of the head of a separate structural unit is occupied by the organization’s constituent documents and local regulations: the organization’s charter, regulations on the unit, job description, qualification characteristics for the position, as well as individual law enforcement acts, for example, orders about granting powers.
In labor legislation, a separate division of an organization is called a structural division, which puts it on a par with other divisions of the organization that are part of its structure.
A structural unit is recognized as separate if it is located in a different area, i.e. in an area outside the administrative-territorial boundaries of the relevant locality where the organization itself is located. At the same time, labor legislation simultaneously operates in terms of civil and tax legislation: branch, representative office, other separate structural unit.
The separation of structural units through the sign of territorial isolation is of primary importance in the following cases.
When it comes to specifying the place of work in the employment contract in accordance with the requirements of Article 57 of the Labor Code, it should be noted that in this situation the consequences provided for in Article 72 of the Labor Code are applicable. In particular, if the structural unit is indicated in the employment contract, changing it while continuing to work for the same employer is called a transfer to another job, but if the structural unit is not indicated, then we are talking about relocation.
The division of structural divisions occurs when the activities of a separate structural division cease. In accordance with Part 4 of Article 81 of the Labor Code, in the event of termination of the activities of a branch, representative office or other separate structural unit of an organization, the termination of employment contracts with employees of this unit is carried out according to the rules provided for cases of liquidation of the organization.
On this basis, the Labor Code does not oblige the employer, in the course of complying with the procedure for such dismissal, to offer the employee another available job (vacant position) in the same organization. But the legislator limits the application of the above dismissal procedure to employees of separate structural units located in the same area as the organization itself.
In addition, the division of structural units through the sign of territorial isolation occurs in cases provided for in Articles 74, 76, 81, 83, 84, 261 of the Labor Code. These articles contain the following wording: “... the employer is obliged to offer the employee all vacancies available in the given locality that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.” We are talking about vacancies currently available to the employer, including in its branches, representative offices, and other separate structural divisions.
An approximate form of an employment contract with the head of a separate division of the organization:
A crisis brings not only serious losses, but also new opportunities. In the process of extensive1 growth, there is a need to expand the interests of the organization beyond the region in which it was created. The disadvantage of this extension is a complex system control over the development of the regional network. In fact, the only way to maintain full control over the activities of regional representatives is to create an extensive network of separate divisions directly subordinate to central management, which is possible by organizing a representative office or branch. Let's consider the practical aspects of their creation and functioning from the point of view of labor law.
Urgent message for a lawyer! The police came to the office
Appointment of the head of the department
Let us remind you that according to the direct instructions of clause 3 of Art. 55 of the Civil Code of the Russian Federation, heads of representative offices and branches are appointed by the head of the legal entity and act on the basis of his power of attorney. In accordance with paragraph 1 of Art. 5 LLC Law 2 branches and representative offices are created by decision of the general meeting of company participants. IN joint stock companies the creation of branches and representative offices is within the competence of the company's board of directors 3. In this case, representative offices and branches must be indicated in the constituent documents of the legal entity that created them. Changes to the organization's charter come into force for third parties from the moment of proper notification of the creation of a branch (representative office) of the body carrying out state registration of legal entities.
According to Art. 61 of the Labor Code of the Russian Federation, an employment contract comes into force from the day it is signed by the employee and the employer, unless otherwise established by federal laws, other regulatory legal acts of the Russian Federation or an employment contract, or from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his representative .
As indicated by the Supreme Court of the Russian Federation in the Resolution of the Plenum Supreme Court RF dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, it should be borne in mind that the representative of the employer is a person who, in accordance with the law, other regulatory legal acts, constituent documents of a legal entity (organization) or local regulations, or by virtue of an employment contract concluded with this person, is vested with the authority to hire employees, since It is in this case that when an employee is actually allowed to work with the knowledge or on behalf of such a person, an employment relationship arises (Article 16 of the Labor Code of the Russian Federation) and the employer may be required to formalize an employment contract with this employee in a proper manner.
In addition, even earlier, the Supreme Court of the Russian Federation in paragraph 9 of the Resolution of the Plenum of the Supreme Court dated December 22, 1992 No. 16 “On some issues of application of legislation by the courts of the Russian Federation in resolving labor disputes” pointed out that the courts must take into account that an employment agreement (contract) is considered concluded if the performance of work without issuing an order (instruction) is entrusted to an official who has the right to hire, or when the work was performed with his knowledge.
Thus, to appoint the head of a branch or representative office, the following actions must be taken:
the general meeting of participants (board of directors) must decide to create a branch or representative office, determine its location and basic operating parameters, and decide to make appropriate changes to the organization’s Charter; the sole executive body of the company must send a notification to the tax authority about the creation of a branch (representative office); the sole executive body of the company (general director) must, by his order, make changes to the organization’s staffing table, determining the number of staff units of employees of the branch (representative office) and their official salaries; issue an order to conclude an employment contract with the head of the branch or otherwise carry out actions indicating his actual admission to work.
Controversial points of competence when concluding an employment contract
The conclusion of an employment contract with employees of a branch (representative office) before the decision of the authorized body of the organization on their creation seems, in our opinion, controversial.
On the one hand, until the decision is made to create a branch (representative office), there are no jobs in the organization, staffing units and a budget for receiving these individuals. Moreover, their creation by decision of the general director represents the actual creation of a branch (representative office) and can be considered as an excess of his powers. As for the actual admission to work, in this case a number of questions remain: how can an employee whose job function is not defined be admitted to work, and it is technically impossible to determine it in the absence of a decision to create a separate unit. How is actual admission carried out in the absence of a workplace?
Consequently, it can be assumed that the right to conclude employment contracts with employees of a branch (representative office) arises with the sole executive body only after a decision is made to create such a unit by a higher management body in the company. At the same time, the conclusion of an employment contract is possible even before the registration authorities are notified, since for the organization itself the decision to create a branch comes into force immediately after its adoption.
On the other hand, the sole executive body is vested with general powers to conclude employment contracts. Moreover, from a formal point of view, it does not matter whether the organization can provide an employee with a workplace and the opportunity to carry out activities. labor activity. The situation when an employee is idle from the moment of concluding an employment contract looks a little absurd, but in principle it is possible. Thus, one can imagine a situation where employment contracts have been concluded, but a branch or representative office has not yet been created. It seems that in such a situation, the founders (shareholders) have the right to both subsequently approve the actions of the general director and exercise their right to hold him accountable for illegal actions that led to losses. At the same time, according to Art. 277 of the Labor Code of the Russian Federation, the head of the organization bears full financial responsibility for direct actual damage caused to the organization.
A separate division that is not a branch (representative office)
Note that creating a separate division that is not a branch (representative office) is simpler. Due to the fact that there is no need to make changes to the constituent documents of the legal entity. Such a unit is created by the actual actions of the organization to equip stationary workplaces outside the location of the organization itself. Moreover, as follows from numerous explanations from regulatory authorities, such a division is considered created from the moment it begins its activities, i.e. from the moment when the first employment contracts are concluded with employees 6 . From this moment on, the organization has the obligation to notify the tax inspectorate (clause 4 of Article 83 of the Tax Code of the Russian Federation) at the location of the separate division about its creation, as well as the obligation to pay taxes, fees, and submit reports taking into account the presence of such a division.
In practice, the creation of such separate divisions is carried out by issuing an order of the sole executive body and allocating to them the necessary Money on its functioning. The heads of such divisions may be issued powers of attorney to carry out actions that give rise to civil consequences, by analogy with the heads of branches and representative offices: they can maintain a separate management balance sheet and much more.
Creation of a division and appointment of a manager
In practice, the creation of both full-fledged branches and representative offices, as well as other separate divisions, gives rise to a number of problems of a purely technical nature. It is necessary to assess the prospects for the existence of the unit, select suitable premises, conclude agreements for servicing technical needs (communications, public utilities and etc.). Of course, one of the company’s employees may be sent for this purpose, but all these issues can be much more effectively resolved on site using local personnel. And in this case, a problem arises: how to formalize relations with such employees if the division does not yet exist?
Quite often in such a situation, the management of the organization promises the employee “on the spot” his subsequent employment, without in any way recording the relationship that arises between them. Such a practice is fraught with conflicts. For example, a local employee is assigned to carry out actions to create a separate division, but as a result of his negotiations and market research, it turns out that the project requires large financial investments and is abandoned. The person who carried out preparatory activities, turns out to be deceived in his expectations.
Further - trial upon request, recognize the employment contract as concluded and reinstate him at work on the basis that actual admission has been made. Moreover, a situation may arise when it will take place in another region. In accordance with paragraph 1 of Art. 29 of the Code of Civil Procedure of the Russian Federation, a claim is filed in court at the location of the defendant. However, according to paragraph 2 of this article, a claim against an organization arising from the activities of its branch or representative office may also be brought to the court at the location of its branch or representative office. Therefore, in practice, situations arise when a statement of claim is filed (and sometimes considered by the court) at the location of the supposed location of the organization’s branch. Geographically, the court may be located many hundreds of kilometers from the location of the organization, and the consideration of the dispute takes place against the backdrop of a completely understandable desire to protect a local resident from the tyranny of the “alien Varangians.”
Regardless of the result judicial trial such a process can be quite expensive (cost of tickets, accommodation for a representative, travel expenses). Moreover, reinstatement in a position is often impossible, since it never existed.
Meanwhile, this situation can be avoided quite easily if the relationship between the organization and the future employee is formalized agency agreement, defining in it the scope of actions to prepare for the creation of a separate division and indicating, among other things, the amount of remuneration to the agent. And only after completing the preparatory procedures and formally creating a separate unit, conclude an agreement.
The head of an organization, when choosing the method of creating a branch (representative office) according to the rules of civil law or the method of creating a separate division in the context of tax legislation, must take into account that the regulation of labor relations within each of them has its own characteristics.
Thus, the head of a branch (representative office) can be dismissed for a number of special reasons. For example, when making an unjustified decision that resulted in a violation of the safety of property, its unlawful use or other damage to the property of the organization (clause 9 of Article 81 of the Labor Code of the Russian Federation), or in the event of a single gross violation by the head of a branch (representative office) of his labor duties (clause 10 Article 81 of the Labor Code of the Russian Federation).
It is impossible to dismiss the head of a separate division on these grounds.
It seems that this approach of the legislator is a little inconsistent, since in a fairly large number of legal relations, a branch (representative office) and separate divisions are equalized. So, probation in both cases it can be up to six months (paragraph 13 of article 70 of the Labor Code of the Russian Federation). The collective agreement is adopted and a strike is declared in the same manner. But it is precisely these examples that allow us to assert that the legislator in a number of legal relations draws a clear line between them. It can be assumed that these differences in the regulation of labor of managers of branches (representative offices) and other separate divisions are a consequence of differences in their creation and, accordingly, in the procedure for appointing managers to these positions.
Problems of personnel records management in separate departments
After the formal creation of a separate division and the conclusion of an employment contract with the manager, the next stage is the recruitment of personnel. In this case, the conclusion of an employment contract can be carried out either by the head of a separate representative office, subject to the delegation of these powers to him, or by the sole executive body. It must be remembered that in accordance with Art. 20 of the Labor Code of the Russian Federation, the employer is the organization itself.
Therefore, the statements found in the legal literature that “not only organizations - legal entities, but also their separate structural divisions can act as an employer” 7 seem to be completely inconsistent with the current legislation. The rights and obligations of the employer in labor relations are exercised by the management bodies of the organization or persons authorized by them in the manner established by the current labor legislation, the constituent documents of the legal entity and local regulations.
Labor legislation does not know such a thing as a “power of attorney” 8. Accordingly, the powers of the head of the branch must be enshrined in the internal administrative document of the organization. Such documents include local regulations containing broad-based rules that apply to an indefinite number of persons. Such documents may be permanent or temporary. It doesn’t really matter how they are named. Thus, if the employer’s authorized body issues a document called “Order” (an administrative order of the employer directed to a specific person), which has the characteristics of a local regulatory act, its effect will be equivalent to issuing a document called “Regulation” containing the same rules. But, as a rule, the right to conclude employment contracts with branch employees within the approved staffing table is fixed in the regulations on the branch (representative office). Such provisions can be both general (extending their effect to all separate divisions of the organization) and individual (relating only to a specific division).
In practice, both situations are quite common. And when the right to conclude an employment contract is delegated to the head of a separate division, and when only the head or employee of the company’s central office has it. Each of them has both its pros and cons. Let's look at them in more detail.
The first situation is when the conclusion of an employment contract is carried out by the sole executive body of a legal entity, and personnel records are carried out at the head office. This situation is fraught with massive violations of labor legislation. Moreover, the further the branch is removed from the center of implementation of personnel policy, the more of them. Problems begin from the moment the employment contract is concluded. Let us remind you that in accordance with Art. 65 of the Labor Code of the Russian Federation, when concluding an employment contract, a person applying for work presents to the employer:
passport or other identity document; work book, with the exception of cases when an employment contract is concluded for the first time or the employee starts working on a part-time basis; state insurance certificate pension insurance; military registration documents - for those liable for military service and persons subject to conscription for military service; document on education, qualifications or special knowledge.
Due to the remote location of the personnel records management center, these documents are sent from the branch in copies, and their comparison with the originals is carried out on site. Accordingly, the employer is not immune from abuse by the management of a separate division.
In addition, according to Art. 66 of the Labor Code of the Russian Federation, the work book remains with the employer throughout the entire employment contract. At the same time, since the person authorized to maintain work records is located in the central office, there is a need to forward them. In some cases, this can lead to its loss and often a delay in issuing it to the employee in the event of dismissal. This is especially true in cases where the employer, by virtue of Part 3 of Art. 80 of the Labor Code of the Russian Federation is obliged to terminate the employment contract from the date specified by the employee. In addition, with this mode of operation, delays regularly arise in familiarizing workers with orders and local regulations of the organization.
In some cases this can be critical.
For example, for bringing to disciplinary liability the Labor Code of the Russian Federation has established quite strict deadlines, and if they are missed, the imposition of penalties is impossible. Some of the problems can be solved by using modern means of communication, but it is not able to eliminate it completely.
Delegating the authority to conclude employment contracts and conduct personnel records to the management of the branch makes a certain sense only if the separate division is large enough. As practice shows, it is difficult to ensure effective office management in small departments. In addition, in these cases, there is a possibility of serious abuses on the part of the branch management when hiring employees. Starting from the usual protectionism for relatives and ending with the hiring of employees in excess of the established ones staffing table units. Moreover, since the head of a separate division has the right to conclude employment contracts, they will be completely legitimate and, accordingly, will lead to the obligation to pay wages and provide the necessary conditions labor.
In conclusion, I would like to note that the regulation of labor relations in separate divisions requires special attention from both the head of the organization and the employees of its personnel services. Understanding the features of such regulation will certainly help to avoid serious violations of the employment contract and conflicts with employees. However, with due attention to this problem, ensuring compliance with current labor legislation does not present serious difficulties.
Legal subtlety
Definition of the concepts “branch” and “representative office”
In accordance with paragraph 1 of Art. 55 of the Civil Code of the Russian Federation, a representative office is understood as a separate division of a legal entity, located outside its location, which represents the interests of the legal entity and protects them. According to paragraph 2 of this article, a branch is understood as a separate division of a legal entity located outside its location and performing all or part of its functions, including the functions of a representative office. These formulations are quite vague and require serious clarification. However, based on them, some basic criteria can be established.
Firstly, a branch and a representative office are organizationally separate units from the main organization. Secondly, they are located outside the location of the parent organization. At the same time, a branch has broader powers than a representative office. As Professor Erdelevsky notes: “The difference between a branch and a representative office lies in the broader functions of the first compared to the second. If a representative office is created for the purpose of carrying out only legal actions that boil down to representing and protecting the interests of a legal entity, then the activities of a branch consist of carrying out both legal and actual actions through which all or part of the functions of a legal entity can be performed” 4 . However, due to the fact that representation of interests is a very broad concept, in practice, when choosing in what form to create a separate division, they usually do not think about the differences between a branch and a representative office.
The civil legislation of the Russian Federation provides for only two types of separate divisions. Moreover, information about them must be clearly recorded in the constituent documents and state accounting registers (USRLE). Established order registration proved to be quite cumbersome and not always convenient, especially for large organizations. In addition, if in civil legal relations the issue of registering a separate division is not key 5, then in tax legal relations it is more acute, since the place of jurisdiction commercial activities determines the place of payment of taxes and fees.
We believe that this is why Art. 11 of the Tax Code of the Russian Federation considers a separate division of an organization as any territorially separate division from it, at the location of which stationary workplaces are equipped. Recognition of a separate division of an organization as such is carried out regardless of whether its creation is reflected or not reflected in the constituent or other organizational and administrative documents of the organization, and on the powers vested in the specified division. In this case, a workplace is considered stationary if it is created for a period of more than one month. Let us note that separate divisions, expressed in the definitions of tax legal relations, do not require amendments to the constituent documents, but are subject to registration with the tax authorities at the place of tax registration.
1 Extensive (from Late Latin extensivus - expansive, tensile) - associated with quantitative increase, distribution.
2 Federal Law No. 14-FZ dated 02/08/98 “On Limited Liability Companies” as amended. dated 04/29/2008 as amended on 10/27/2008.
3 Subclause 14 clause 1 art. 65 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint-Stock Companies” as amended. dated 04/29/2008 as amended on 10/27/2008.
4 Erdelevsky A. M. Civil legal status of branches and representative offices. Moscow, 2001.
5 The head of the branch in all cases acts by power of attorney, and it is this power of attorney that determines his status. In most cases, this removes all questions about the legitimacy of the activities of separate units.
6 See: Letter of the Federal Tax Service of the Russian Federation dated December 29, 2006 No. ШТ-6-09/1275@ “On sending clarifications”, Letter of the Ministry of Taxes of the Russian Federation dated April 29, 2004 No. 09-3-02/1912 “On recognizing one workplace as a separate unit” , Letter of the Ministry of Taxes of the Russian Federation dated February 24, 2004 No. 09-3-02/755 “On registering an organization with the tax authority at the location of separate divisions,” etc.
7 Boykova O. S., Filippova M. V. Newest arbitrage practice on labor legislation with comments: a practical guide. M.: GrossMedia, ROSBUKH, 2008.
8 A provisions of Ch. 10 of the Civil Code of the Russian Federation cannot be applied either directly or by analogy due to the direct instructions of Art. 1, 2 and art. 6 of the Civil Code of the Russian Federation (Author's note).
