Article 275. Conclusion of an employment contract with the head of the organization

Urgent or not

As a general rule, employment contracts are concluded for an indefinite period – that is, they are valid until terminated at the request of the employee or employer. A contract for a predetermined period (fixed-term employment contract) can be concluded only if this is provided for in the Labor Code of the Russian Federation.

An employment agreement with the head of an organization may be fixed-term. This is provided for in Art. 59 of the Labor Code. In addition to the manager, a fixed-term contract can be concluded with the deputy manager and chief accountant. This is explained by the important role of the organization’s leaders and the tasks assigned to them - not just to work, but to manage the business so that it makes a profit.

Such an agreement can be concluded with the head of any organization - LLC, JSC, municipal unitary enterprise, cooperative, etc. (Part 2 of Article 59 of the Labor Code of the Russian Federation).

Expert opinion

Labor Lawyer Olga Smirnova

It is not necessary to limit the validity of the agreement to a specific period. You can also conclude an ordinary open-ended employment contract with the director. The decision on whether the contract will be fixed-term or indefinite is made by the founders of the organization.

Executive agency

In the Labor Code, Chapter is devoted to the peculiarities of regulating the labor of managers and members of the collegial executive body . 43 , the provisions of which apply to heads of organizations regardless of their organizational and legal forms and forms of ownership, except in cases where:

• the head of the organization is the only participant (founder), member of the organization, owner of its property;
• The organization is managed under an agreement with another organization (management organization) or an individual entrepreneur (manager).

By virtue of Art. 274 of the Labor Code of the Russian Federation, the rights and obligations of the head of an organization in the field of labor relations are determined by the documents listed in Art. 273 of the Labor Code of the Russian Federation , as well as an employment contract.

Among the most common laws regulating the activities of managers of commercial organizations are federal laws dated 02/08/1998 No. 14-FZ “On Limited Liability Companies” (hereinafter referred to as the LLC Law ), dated 12/26/1995 No. 208-FZ “On Joint-Stock Companies” " (hereinafter referred to as the Law on JSC ).

The head of a commercial organization (director, general director, etc.) is the sole executive body who, without a power of attorney, acts on behalf of the organization, including representing its interests and making transactions, issues powers of attorney for the right of representation on behalf of the organization, issues orders on the appointment to positions of employees, on their transfer and dismissal, applies incentive measures and imposes disciplinary sanctions and exercises other powers that are not within the competence of the general meeting of participants of the company, the board of directors (supervisory board) of the company and the collegial executive body of the company.

of the Law on JSC states that the relations between the company and the sole executive body of the company (director, general director) and (or) members of the collegial executive body of the company (board, directorate) are subject to the Labor Code to the extent that does not contradict the provisions of the Law on JSC _

How to determine the period for which a contract can be concluded

The term of office of the general director is established in the organization's charter. In addition, the period must be specified in the employment contract with the director. Depending on the type of organization, the term of appointment may be set by the founders or the board of directors.

OOO

The founders of a limited liability company elect a general director for the period established by the charter. The appointment may fall within the competence of the board of directors, if there is one in the company (clause 1, article 40 of the Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies”). The decisions made are documented in the minutes of the general meeting of participants. If there is only one participant in the company, instead of the protocol, he can sign the decision (the difference between these documents is that in order to make a written decision, it is not necessary to convene a general meeting of participants according to the procedure established by law).

JSC

Similar rules apply in joint stock companies. The term of office of the general director is determined in the constituent documents. The director is appointed by the general meeting of shareholders, the board of directors or the supervisory board (Article 69 of Federal Law No. 208-FZ of December 26, 1995 “On Joint-Stock Companies”).

State unitary enterprise or municipal unitary enterprise

The head of a unitary enterprise is appointed to the position by the owner of the property of a state unitary enterprise or municipal unitary enterprise (Article 21 of the Federal Law of November 14, 2002 No. 161-FZ “On State and Municipal Unitary Enterprises”. A representative of the state or municipal body to which the unitary enterprise is accountable acts on his behalf.

HOA and TSN

According to Article 149 of the Housing Code of the Russian Federation, the chairman of the board of a homeowners' association is elected by the members of the board. The term of his office is determined by the charter of the HOA. Similar rules for appointing a manager for a certain period of time apply in real estate owners' partnerships (TSN).

Production cooperative

In a production cooperative, the term of office of the manager (chairman) is established by the charter of the cooperative. A director can be appointed by both the general meeting of members of the cooperative and the supervisory board, depending on what is provided for in the charter (Article 17 of Federal Law No. 41-FZ of May 8, 1996 “On Production Cooperatives”).

Agricultural cooperative

The chairman of an agricultural cooperative is elected for a term of no more than five years by the general meeting of members of the cooperative (Article 26 of the Federal Law of December 8, 1995 No. 193-FZ “On Agricultural Cooperation”).

Comments to Art. 275 Labor Code of the Russian Federation

1. Article 59 of the Labor Code provides for the possibility of concluding fixed-term employment contracts with the heads of organizations, regardless of their organizational and legal forms and forms of ownership.

The commented article, which is a special norm, regulates what should be followed when determining the term of the employment contract with the manager. These may be the constituent documents of the organization or an agreement of the parties.

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At the same time, these norms do not allow us to assert that an employment contract should be concluded with the heads of organizations exclusively for a certain period.

Changes made to Art. 59 of the Labor Code, allow us to unequivocally state that the conclusion of a fixed-term employment contract with the head of an organization is carried out by agreement of the parties, which does not exclude the possibility of concluding an open-ended employment contract with the head of an organization.

The ability of the parties to choose the validity period of the employment contract concluded with the head of the organization makes it possible to provide in the constituent documents of the organization a provision on what type of employment contract will be concluded.

If this rule is enshrined in the constituent documents of the organization, this becomes mandatory.

According to Art. 40 of the Law “On Limited Liability Companies” the sole executive body of the company (general director, president, etc.) is elected by the general meeting of the company’s participants for the period determined by the company’s charter. According to paragraph 2 of Art. 13 of the Federal Law of July 19, 1998 N 115-FZ “On the peculiarities of the legal status of joint-stock companies of employees (national enterprises)”, the general director of a national enterprise is elected for a period determined by the charter of the enterprise, but not more than 5 years.

Expert opinion

Lebedev Sergey Fedorovich

Practitioner lawyer with 7 years of experience. Specialization: civil law. Extensive experience in defense in court.

The rule according to which only a fixed-term employment contract can be concluded with the head of an organization can be enshrined in legislative and other regulatory legal acts containing labor law norms.

According to clause 60 of the Model Regulations on an educational institution of higher professional education (higher educational institution) of the Russian Federation, approved. By Decree of the Government of the Russian Federation of February 14, 2008 N 71, the rector of a higher educational institution can be elected to office for a term of up to 5 years. Approval of a candidate elected to the position of rector is carried out by the executive body in charge of the higher education institution.

In some cases, legislation may determine the minimum duration of an employment contract with the head of an organization. Thus, in accordance with the provisions of paragraph 2 of Decree of the President of the Russian Federation of June 10, 1994 N 1200, the duration of an employment contract with the heads of federal state enterprises cannot be less than 3 years.

2. According to Part 2 of the commented article, the conclusion of an employment contract may be preceded by special procedures, some of which are directly provided for by the article.

Thus, Federal Law No. 41-FZ of May 8, 1996 “On Production Cooperatives” provides that the chairman of the cooperative is elected by the general meeting from among the members of the cooperative.

In accordance with the Decree of the Government of the Russian Federation of March 16, 2000 N 234 “On the procedure for concluding contracts and certifying heads of federal state unitary enterprises,” the hiring of a head of a state unitary enterprise may be preceded by a competition.

The list of procedures preceding the conclusion of an employment contract, which is given in the article (conducting a competition, election or appointment to a position), is not exhaustive.

Other procedures preceding the conclusion of an employment contract include the following:

confirmation in position;

election by the team with subsequent approval by the founder;

appointment by founder, etc.

When concluding an employment contract with a manager, its party may be the owner of the organization’s property, a person authorized by the owner of the property, or a body entrusted by current legislation with coordinating and regulating activities in the relevant industry (field of management).

Employment contracts are concluded with the heads of federal state unitary enterprises in agreement with the federal executive body responsible for managing federal property.

As a rule, employment contracts are concluded with the heads of unitary enterprises owned by constituent entities of the Russian Federation by executive authorities of constituent entities of the Russian Federation and persons authorized by them.

3. In some cases, the owner of the organization’s property may decide to extend a fixed-term employment contract with the head of the organization. It seems that in such cases (using the example of LLC - limited liability company) one should be guided by the following.

This is important to know: How does a collective agreement differ from an employment contract?

According to Art. 58 of the Labor Code, in the case where neither party requested termination of a fixed-term employment contract due to its expiration and the employee continues to work after the expiration of the employment contract, the condition on the fixed-term nature of the employment contract loses force and the employment contract is considered concluded for an indefinite period . This provision is common for employees entering into fixed-term employment contracts.

At the same time, Ch. 43 of the Labor Code provides for the specifics of regulating the work of the head of an organization - norms that partially limit the application of general rules on the same issues or provide additional rules for this category.

Thus, in accordance with the commented article, an employment contract with the head of an organization is concluded for a period established by the constituent documents of the organization or by agreement of the parties. One of the constituent documents of an LLC is the charter. The requirements for the content of the company's charter are determined by clause 2 of Art. 12 of the Law “On Limited Liability Companies”. The company's charter must not contain provisions that contradict this Law and other federal laws. According to Art. 40 of the said Law, the sole executive body of the company is elected by the general meeting of the company's participants for a period determined by the company's charter.

Thus, the conclusion of an employment contract with the head of the company must be preceded by the procedure for his election. At the same time, the Law does not provide for any exemptions or exceptions in the event that the same individual, after the expiration of his term of office, again claims to be elected as the sole executive body.

In addition, the Labor Code does not contain the concept of “extension of a fixed-term employment contract.”

Based on the above, it seems that if the term of the employment contract with the head of the company expires, his election as the sole executive body of the company for a new term should be carried out according to the general rules, i.e. in compliance with the procedure preceding the conclusion of an employment contract.

4. In the case of concluding a fixed-term employment contract, it must indicate both the period of its validity and the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract in accordance with the Labor Code and other federal laws (Article 57 of the Labor Code).

5. The assumption of the position of the head of the organization is formalized by an order (instruction), issued, as a rule, by the head himself.

6. The provisions of the commented article do not apply to heads of branches, representative offices, and other separate structural divisions of the organization. According to Art. 59 of the Labor Code, a fixed-term employment contract can be concluded with the heads of organizations, regardless of their organizational, legal forms and forms of ownership.

Expert opinion

Lebedev Sergey Fedorovich

Practitioner lawyer with 7 years of experience. Specialization: civil law. Extensive experience in defense in court.

In accordance with Art. 55 of the Civil Code, branches are separate divisions of an organization (legal entity) located outside its location, and are not legal entities in themselves.

Thus, the grounds for concluding a fixed-term employment contract at the initiative of the employer with the head of the branch in accordance with Art. 59 of the Labor Code, which provides for the possibility of concluding a fixed-term employment contract with the head of an organization, is generally not available. A fixed-term employment contract can be concluded with these persons according to the general rules established by Art. 58 TK.

7. Considering that the conclusion of an employment contract with the head of an organization in some cases is preceded by certain procedures (election by a general meeting of participants), it is advisable to associate the expiration date of the employment contract with the timing of the general meeting of participants. In this case, it will be possible to avoid unwanted interruptions in the management of the organization by the sole executive body.

Maximum term

Labor Code in Part 1 of Art. 58 establishes that a fixed-term employment contract can be concluded for no more than 5 years (except for those cases when otherwise provided by a special law). For the head of an organization, none of the laws directly states the possibility of concluding an employment contract for a period of more than 5 years.

Therefore, it would be correct to limit the term of office of the general director to 5 years, and to appoint him to this position for the same period. If an employment contract is concluded for a period of more than 5 years, there is a risk that the court will recognize it as concluded for an indefinite period.

If appointed for a period other than that specified in the charter

The company's charter may determine the director's term of office in different ways:

• The General Director is appointed for a period of no more than 2 years.

In this case, the exact period is determined in the decision on the appointment of the general director to the position. It can be equal to two or one and a half years, a year, etc.

• The General Director is elected for a term of 2 years.

If there is such wording in the constituent documents, the director must be appointed for two years. The law does not provide for any fines or sanctions for his appointment for a period other than that established by the charter. However, such a discrepancy in terms will raise questions among the company’s counterparties about the legality of the director’s powers.

• The General Director is appointed for an indefinite period.

If the charter contains such a provision, a fixed-term employment contract cannot be concluded with the director. But owners or shareholders can change the charter and provide for a certain term of office. After this, it will be possible to conclude a fixed-term employment contract with the director.

Position of director of the organization

A director is the head of a small company or a huge corporation. This is an individual who assumes the powers of the executive body of an organization, regardless of its size. The position of a manager is not always called “director”. The agreement may include other titles: president of the company, head of the corporation, general director. It is important that the name in the contract sounds the same as in the company’s constituent documents. The number of executives employed by the organization and responsible for various technical and production areas may consist of two or three persons. In this case, managers of narrower areas obey the orders of higher management (usually the general manager).

Preparation of other documents

Enrollment in labor

The head of the organization, like any other employee, provides the employer with a work book for making entries about work, incentives, penalties, etc. Entries are made in the usual manner, with one exception. In the fourth column of the work book, “Name, date and number of the document on the basis of which the entry was made,” you must indicate the basis for hiring. In the case of the general director, you can enter in this column:

• the name, date and number of the decision, protocol or other similar document by which the director was appointed to the position; or
• date and number of the employment order.

This filling procedure is confirmed by Letter of Rostrud dated September 22, 2010 No. 2894-6-1, as well as clause 3.1. Instructions for filling out work books, approved by Resolution of the Ministry of Labor of October 10, 2003 No. 69.

The order of acceptance to work

An order for hiring a manager under a fixed-term employment contract is drawn up according to a unified form No. T-1, approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1, or according to another form that the organization has developed itself.

The order specifies:

• name, date and number of the decision on the appointment of the manager;
• date and number of the contract;
• FULL NAME. hired general director;
• the name of the structural unit established in accordance with the organizational structure - “directorate”, “head office”, etc.;
• job title – “General Director”, “President”, “Director”, “Head of the organization”;
• salary;
• probationary period, if established.

The appointed general director signs the employment order:

• and on behalf of the employer;
• and for himself personally (he signs that he is familiar with the contents of the order).

Entering information into the Unified State Register of Legal Entities

Within 3 days after the decision on appointment to the position is made, information about the new general director must be submitted to the Unified State Register of Legal Entities through the tax authority that registers organizations in a particular region, or through the MFC.

Brief content of the employment contract with the manager (important lines)

The contract first of all contains the following data (in the example given, the most important lines are underlined):

• city ​​in which the company is registered;
• Date of preparation;
• company name;
• FULL NAME. employee and employer representative;
• number and date of adoption of the protocol or decision, on the basis of which the founder or his representative receives the right to sign.

When describing the subject of the contract, if the main job is in the position of a manager of the Company, indicate whether the employee has the right to work part-time in other companies or cannot hold other positions. The sample shows how permission or a ban on holding other positions can be formulated: the permission in the sample is underlined in green, the ban in red.

A clause on non-disclosure of commercial or other protected secrets is also necessary (underlined in red in the sample).

Responsibilities and rights of the parties.

Pay attention to the indication of the employee’s subordination: to which body he is obliged to report.

The job responsibilities of a manager can include many points, while ensuring the legality of the company’s activities when carrying out business relations is one of the primary tasks.

The employee's rights are also listed in the agreement. Basic:

• the right to represent the interests of the company and sign documents without a power of attorney;
• dispose of the company’s property within the limits established by the Charter;
• open bank accounts and make transactions.

This is important to know: Work under a fixed-term employment contract

Don't forget to include in the contract the employee's obligation to comply with discipline and safety rules. The employer's responsibilities to familiarize the employee with labor protection requirements and ensure production safety are also prescribed.

The main right of the employer remains the opportunity to terminate the contract with the general director in cases provided for by law.

Insurance and guarantees.

The document includes information about social insurance, guarantees and compensation for the employee.

Expert opinion

Lebedev Sergey Fedorovich

Practitioner lawyer with 7 years of experience. Specialization: civil law. Extensive experience in defense in court.

The terms of remuneration are an important information block of the agreement. Set your salary, bonus, and additional payment for additional workload. Please indicate how the salary is paid - in cash at the cash desk or by transfer to a bank account.

Work and rest schedule.

Information about working hours, rest, provision of vacation and the number of days thereof.

In the final part, indicate the confidential nature of the terms of the agreement and the moment of entry into force.

How to fire a CEO after his term expires

Despite the limited term of office of a fixed-term employment contract, after its expiration the dismissal of the general director does not occur automatically. In order to correctly terminate a fixed-term contract, the following steps must be taken:

• a notice is issued to the director about the termination of a fixed-term employment contract due to the expiration of its term, which is handed over against signature;
• An entry is made in the work book about the dismissal from the position of the General Director and his new appointment. The basis is the decision of the founder or participant of the organization;
• an order is issued to dismiss the general director due to the expiration of the term of office (you can use form T-8, which was approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1, or the organization’s own form;

How to renew an agreement with a director

The extension of the employment relationship with the manager is carried out by appointing him for a new term. Simply extending a fixed-term employment contract is incorrect, since the organization’s charter provides for a limited term of office for the general director (otherwise such a fixed-term employment contract would not have been concluded).

When extending an agreement, it may be recognized as indefinite if the extension was carried out several times and the total term of the employment relationship exceeded 5 years (clause 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”).

To extend the powers of a director for a new term, a decision by the sole participant on reappointment to the position is required. Based on it:

• documents on termination of powers are drawn up as in the case of a change of general director;
• then an order for new employment must be issued (see above), and a new fixed-term or indefinite agreement must be concluded.

If the same general director remains for a new term, information about this does not need to be submitted to the tax authority. In accordance with the law, it is necessary to update the Unified State Register of Legal Entities data only when the general director is replaced by a new person.

If the deadline has expired and a new director has not been appointed

Corporate law establishes that the powers of the CEO continue until a new person is appointed to this position, so as not to leave the organization without leadership. For joint stock companies, this rule is established by Art. 69 of the Federal Law “On Joint Stock Companies”, for other legal entities it can be applied by analogy.

But from the point of view of labor legislation, such a situation may mean extending the employment relationship with the general director for an unlimited period. According to Art. 58 of the Labor Code, if the employee continues to work after the expiration of the term, the agreement with him can be recognized as unlimited. Therefore, it is necessary to prepare documents for the reappointment of the general director under a fixed-term employment contract in a timely manner.

Conditions for termination of the contract

The grounds for terminating a contract with the general director are expressly stated in the Labor Code. There are universal reasons or specific ones. The most common are:

• On personal initiative (must notify 30 days in advance).
• The end of the contract period determined by the parties before signing.
• Mutual consent of the parties (payment of benefits is carried out only if such a clause is in the contract).
• At the initiative of the company: in connection with the adoption of unreasonable decisions that caused damage to property or health of employees.
• When the owner of a commercial organization changes.
• Bankruptcy or complete liquidation of a joint-stock company or legal entity.

Dismissal is carried out in the form of an order, with which the employee must be familiarized. In the case of the general director, dismissal from office occurs in compliance with the established procedure. If damage caused to the organization by actions or inactions is subject to compensation on the basis of Art. 277 of the Labor Code of the Russian Federation, the company collects it through the court.

Acting – is it possible to conclude a fixed-term contract?

A fixed-term employment contract with the acting general director is not provided for by law. Therefore, if there is no confidence that the candidate will cope with the management of the organization, you can set him on a probationary period or appoint him to the position of manager and release him from it if problems arise. The right of the founder to terminate the employment contract with the head of the organization early is provided for in paragraphs. 2 p. 1 art. 278 Labor Code of the Russian Federation.

Expert opinion

Labor Lawyer Olga Smirnova

It is wrong to appoint an acting CEO for a period before the appointment of the “main” CEO. The courts recognize the period established in this way as inconsistent with the Labor Code, as ending with the occurrence of an event (Article 58 of the Labor Code of the Russian Federation). As a result, the VRIO will be recognized as appointed for an indefinite period (see, for example, Determination of the Moscow City Court dated June 7, 2012 No. 4g/8-4383).

Features of labor relations with the director

When concluding an employment contract with the general director of an LLC (see sample employment contract below), it is important to consider the following features:

• before the signing of the employment contract, the director must be elected to this position by a decision of the general meeting of the LLC or, if established by the charter of the LLC, by the board of directors/supervisory board of the LLC (Article 275 of the Labor Code of the Russian Federation);
• for damage caused to the enterprise, the director may be held fully financially liable (Article 277 of the Labor Code of the Russian Federation);
• by virtue of Article 70 of the Labor Code of the Russian Federation, the probationary period for a director can be up to six months;
• the director can be dismissed: 1) by the new owner of the organization’s property within 3 months from the date of acquisition of ownership rights in relation to the organization’s property with payment of appropriate compensation (Article 75, paragraph 4 of part 1 of Article 81, Article 181 of the Labor Code of the Russian Federation); 2) when the director makes an unfounded decision that results in failure to preserve/illegally use or damage to the employer’s property (clause 9 of part 1 of Article 81 of the Labor Code of the Russian Federation); 3) in case of a single gross violation of official duties by the director (clause 10 of part 1 of Article 81 of the Labor Code of the Russian Federation); 4) in other cases established by the parties in the employment contract (clause 13 of part 1 of article 81, article 278 of the Labor Code of the Russian Federation); 5) when the general meeting of the LLC makes a decision to terminate the contract with the director (Articles 278, 279 of the Labor Code of the Russian Federation).

employment contract with the general director of the LLC

Fixed-term contract with the head of the branch

In accordance with the Labor Code, fixed-term employment contracts can be concluded only in cases provided for by law. This opportunity is established for heads of legal entities and some government agencies that have the status of a legal entity.

If an employee does not manage the organization as a whole, but a separate division - a branch, representative office, department, workshop - a fixed-term employment contract cannot be concluded. Management of a legal entity is an independent function that differs from the management of individual divisions. Therefore, from the point of view of labor legislation, the heads of branches and other structural divisions are not recognized as the heads of the organization, and the conclusion of fixed-term employment contracts with them is not provided for by the Labor Code of the Russian Federation.

Labor relations with the head of the organization

The head of the organization, on the one hand, is the same employee as everyone else, and he is subject to the norms of the Labor Code. On the other hand, the manager belongs to a separate category of workers and labor relations with him have their own characteristics. They mainly relate to issues of registration and termination of employment relationships, part-time work, provision of guarantees upon dismissal, as well as measures of liability for violations of labor legislation. What these features are, we will consider in this article.

Fixed-term contract with deputy general director or chief accountant

Fixed-term employment contracts can be concluded with employees hired for these positions. This possibility is provided for in Article 58 of the Labor Code. However, setting a deadline is a right, not an obligation of the employer. Agreements with the Deputy General Director and Chief Accountant can be either fixed-term or indefinite.

We hope you found this article helpful. But remember that it contains only a description of the current rules of law. To take into account the specifics of each specific case, you need to consult with a lawyer.