Features of concluding an agreement with the director of the organization

Who is the director

Regardless of what company the director heads - a small company or a large organization - he is the sole executive body of the legal entity . The position may be called differently, but this does not change the essence. A small company is headed by a director or CEO, while a corporation may have a president. Moreover, there may be several directors: financial, commercial, and so on. But there is always one main person to whom all other leaders report. Most often this is the CEO.

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.

Nuances of the agreement with the manager

Whatever the name of the position, from the employer’s point of view, the manager is the same hired person as other employees. Therefore, the provisions of the employment contract with the director, in general, do not differ too much from the agreement with persons occupying other positions. But still there are some peculiarities.

Only an organization can enter into an agreement with the director . This means that an individual cannot hire a director. That is, there is no such thing as “director of an individual entrepreneur,” since this is not a form of organization, but the status of an individual. The main manager and responsible person in his business is the entrepreneur himself.

When drawing up an agreement with the director, you should be guided by the norms of the Labor Code, legislative acts of the Russian Federation and your region, as well as internal documents of the company. The agreement is drawn up in writing and signed on the part of the employer by the founder (if there is one) or the head of the general meeting of shareholders (owners).

Like any employment contract, the agreement with the director must include a number of mandatory provisions :

• date and place of his imprisonment;
• job title;
• job description;
• information about wages and compensation due to the manager;
• information about the probationary period;
• details of the employing organization and passport details of the director.

Note! A probationary period is applied only if the condition for its existence is specified in the employment contract.

But there are special clauses that should appear in the contract with the director, unlike other employees:

• provision on trade secrets and what penalties will arise if they are disclosed;
• provision for compensation in the event of termination of employment relations with the manager (this amount cannot be less than 3 months’ earnings);
• if the director's salary exceeds a quarter of the value of the organization's assets, the contract must be approved by the advisory body.

But the provision that the director bears financial responsibility is not at all necessary in the contract. The fact is that this responsibility arises by force of law, regardless of whether these provisions are spelled out in the contract or not.

Content

Despite the fact that the position of general director has a special status and provides for some privileges and increased responsibility for this employee, this is little reflected in the form and content of the agreement. This document must be concluded, as in other cases, in writing and in two copies - one for each party to the transaction.

The form and content of the standard document are discussed in Art. 57 and 67 Labor Code of the Russian Federation

mandatory must be indicated :

• Full name of the employee;
• employer's name;
• information about documents that identify the employee;
• employer's tax identification number;
• information about the representative of the employer who signs, the grounds for his having such authority;
• place of signing;
• date of conclusion of the transaction.

also required :

• place of work - that is, the name of a specific enterprise and its legal address;
• work start date.

Labor function - this item covers the following data:

• exact job title (General Director, Director, President);
• education and qualification requirements;
• specific functions of the employee.

hours :

• duration of the working day;
• length of the working week;
• presence and duration of breaks;
• number of vacation days, etc.

Conditions regarding remuneration :

• salary size;
• frequency and method of transferring funds;
• Availability of additional payments and compensations, conditions for receiving them.

period (if the document provides for its establishment):

• specific period;
• grounds for establishing such a period of validity (decision of the meeting, provisions of labor legislation).

And the last is the provision on compulsory social insurance of the employee.

Other points can be added to this document by agreement of the parties, for example:

• the rights and obligations of the general director, his responsibility for violation of legislation (including internal legislation that applies to a particular enterprise);
• confidentiality requirements . Most often, it contains provisions regarding compliance with the enterprise’s trade secrets and non-disclosure of secret information to third parties;
• rights and obligations of the employer , his responsibility to the employee for violation of these provisions.

In general, the content is not much different from those concluded with other employees.

Sample employment contract with the general director of an LLC.

The difference is permissible only if additional provisions are added at the initiative of the parties . In this case, the conditions may differ significantly from the standard ones, which is due to the specifics of the position itself .

But at the same time they should not in any way contradict current labor legislation.

Who chooses the director

A candidate for the position of director is selected or appointed depending on the form of ownership of the legal entity. The Labor Code provides several methods for electing/appointing a manager:

1. Conducting a competition . This option is mandatory for state and municipal unitary enterprises.
2. Election at a meeting of members or the Board of Directors. Suitable for commercial organizations where there are several participants or a collegial board.
3. Appointment by the founder. This is how the candidacy of a director in an LLC with one participant is determined. Quite often in this case, the founder appoints himself as director, but another person can also be hired.

At the same time, the Code does not contain a closed list of procedures, that is, the director can be appointed in some other way.

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).

For what period is the contract concluded?

Typically, an employment contract is for an indefinite period - this applies not only to the director. Only employment agreements that are temporary in nature have a term. For example, when a specialist is hired to replace an employee who has been absent for a long time. In this case, the period is determined by agreement of the parties and in accordance with the constituent documents of the employer. The contract must indicate why it is urgent. The maximum period for which a fixed-term employment contract can be concluded is 5 years.

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;

Responsibility

The director, as a person making management decisions, bears financial responsibility. This is regulated by Article 277 of the Labor Code of the Russian Federation. There are no requirements to specify the corresponding provisions in the contract, but for information they can be included in it. Liability arises regardless of the presence of such provisions in the employment contract or the conclusion of an additional agreement on financial liability with the director. It occurs for damage or theft, as well as for losses caused by the actions or inaction of the manager.

Can the founder enter into an agreement with himself?

Very often the question arises of how to formalize the appointment of a director if he is the only founder. The legislation does not give a clear answer. There are no rules that would allow or prohibit this approach, so the issue is decided by the founder himself.

Let us note that the Ministry of Finance considers concluding an agreement with oneself to be unlawful (letter dated March 15, 2016 No. 03-11-11/14234). Officials explain that if the director and the founder are the same person, the fact of appointment must be formalized by the decision of the sole founder. But letters from the Ministry of Finance, as is known, are not legal acts, so the department’s opinion cannot be recognized as the unequivocally correct answer.

There are two points of view:

1. The Labor Code does not say that labor legislation does not apply to relationships with the head of the organization. This means that an employment contract must be concluded with the director. After all, for an employer, a director is almost the same employee as everyone else. This means that a fine may be imposed for the lack of agreement during labor inspections. Conclusion: despite the opinion of the Ministry of Finance, it is safer to enter into an agreement with yourself . In this case, the person signs both on behalf of the founder and on behalf of the director.
2. A contract with oneself has no meaning and is invalid. If the founder and director are the same person, then there is no need to conclude an employment contract. Moreover, payment of wages in accordance with such an agreement may be regarded as unreasonable expenses.

What to do? The safest option is to enter into an agreement with the director, but not include the costs of his salary in the income tax base.

Categories

Everyone knows that the head of an organization has a special status. However, when registering labor relations, it is necessary to comply with the requirements of the Labor Code of the Russian Federation, which apply to all employees, regardless of position. How to apply for a job as a general director?

CONCLUSION OF AN EMPLOYMENT CONTRACT

Appointment to the position of general director occurs on the basis of a decision of the participants (shareholders) of a legal entity at a general meeting. As soon as the decision of the general meeting of participants (shareholders) on the election or appointment of the head of the organization is adopted and enshrined in the minutes, it is necessary to conclude an employment contract with the head (director, general director, chairman of the cooperative), since, in accordance with Art. 16 of the Labor Code of the Russian Federation, labor relations between an employee and an employer arise on the basis of such an agreement.

The employment contract with the manager is drawn up in writing in two copies.

(one for the employee, the other for the employer) (Part 1 of Article 67 of the Labor Code of the Russian Federation).

In general, the parties develop the form of the employment contract independently, taking into account the requirements of Art. 57 and ch. 43 Labor Code of the Russian Federation. Note that on January 1, 2013, changes to the Labor Code of the Russian Federation came into force, according to which the Government of the Russian Federation is empowered to approve the standard form of an employment contract with the head of a state (municipal) institution

(Part 3 of Article 275 of the Labor Code of the Russian Federation). Resolution of the Government of the Russian Federation dated April 12, 2013 No. 329 “On the standard form of an employment contract with the head of a state (municipal) institution” approved this form and explanations for its application.

Who signs the employment contract?

According to Art. 40 of Federal Law No. 14-FZ dated 02/08/1998 “On Limited Liability Companies” (as amended on 12/29/2012; hereinafter referred to as Federal Law No. 14-FZ) in limited liability companies

an employment contract on behalf of the company can be signed:

• the person who chaired the general meeting of the company's participants, at which the sole executive body of the company was elected;
• a company participant authorized by a decision of the general meeting of company participants;
• the chairman of the board of directors (supervisory board) of the company (if the resolution of these issues falls within the competence of the board of directors) or a person authorized by a decision of the board of directors (supervisory board).

In joint stock companies

the employment contract with the elected manager on behalf of the company is signed by the chairman of the board of directors (supervisory board) or a person authorized by the board of directors (supervisory board) of the company (clause 3 of article 69 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint-Stock Companies”, as amended on 04/05/2013).

In accordance with sub. 7 clause 1 art. 20 of the Federal Law of November 14, 2002 No. 161-FZ “On State and Municipal Unitary Enterprises” (as amended on December 3, 2012) employment contract with the head of the unitary enterprise

is concluded by the owner of the property of such an enterprise.

What if the director is the only participant?

But everything is not so simple with concluding an employment relationship with a director if he is at the same time the only participant in the organization. In this case, an employment contract with such a director can also be concluded: there are no regulations containing a ban or restriction on concluding contracts with this category of employees.

In the established part 8 of Art. 11 of the Labor Code of the Russian Federation, the list of persons who are not covered by labor legislation does not indicate the head of the organization - the only participant in the company. Thus, the activity of the sole participant as the head of the organization is labor and is subject to formalization by an appropriate agreement. However, in Part 2 of Art. 273 of the Labor Code of the Russian Federation, such an exception is established.

SCIENTIFIC EDITOR'S NOTE. There is no clear requirement to conclude an employment contract with the head of the organization - the sole owner of the property of this organization. In any case, in Part 2 of Art. 273 of the Labor Code of the Russian Federation states that the provisions of Ch. 43 of the Labor Code of the Russian Federation do not apply to heads of organizations who are the only participants (founders), members of the organization, owners of its property. Consequently, the provisions on concluding an employment contract do not apply to them.

The Ministry of Health and Social Development of Russia[1] expressed the opinion that an employment contract cannot be concluded with the head of an organization, who is the only founder (participant), member of the organization, owner of its property. A similar opinion was expressed by Rostrud[2].

Arbitration courts say the opposite: the only participant in the company has the right to receive benefits and other labor guarantees and benefits[3].

SCIENTIFIC EDITOR'S NOTE. The Ministry of Health and Social Development of Russia nevertheless recognized the legality of such employment contracts in an explanation of compulsory insurance coverage for compulsory social insurance in case of temporary disability and in connection with maternity of the heads of organizations who are their only founders (participants), members of the organization and owners of its property (approved by Order dated 08.06 .2010 No. 428n).

In this case, the employer is a legal entity or organization (Article 20 of the Labor Code of the Russian Federation). And an individual endowed with appropriate authority enters into (signs) an employment contract with the manager.

An example is the following entry in an employment contract:

“Limited Liability Company “Turin”, hereinafter referred to as “Employer”, represented by the founder of LLC “Turin” Ivan Mikhailovich Perov, acting on the basis of the Charter and the decision of the sole founder dated April 23, 2011 No. 1, on the one hand, and Ivan Mikhailovich Perov , hereinafter referred to as the “Employee”, on the other hand, have entered into this employment contract as follows:

An employee is hired for the position of director..."

TERM OF THE EMPLOYMENT CONTRACT

An employment contract can be concluded with the general director, in accordance with the Labor Code of the Russian Federation, by agreement of the parties, both for a certain period and for an indefinite period. In this case, a fixed-term employment contract can be concluded regardless of the organizational and legal form and form of ownership of the organization (paragraph 8, part 2, article 59 of the Labor Code of the Russian Federation).

For example,

in limited liability companies, the director is elected or appointed for a period determined by the charter or board of directors (supervisory board) of the company, if the resolution of this issue falls within the competence of the board (clause 1 of article 40 of Federal Law No. 14-FZ). The chairman of an agricultural cooperative is elected for a term of no more than five years (clause 2 of article 26 of the Federal Law of December 8, 1995 No. 193-FZ “On Agricultural Cooperation,” as amended on December 3, 2011).

It should be taken into account that the validity period of a fixed-term employment contract is determined by the organization’s charter or agreement of the parties (Part 1 of Article 275 of the Labor Code of the Russian Federation). This period, as well as the circumstances (reasons) that are the basis for concluding an agreement for a certain period, must be indicated in the employment contract (Part 2 of Article 57 of the Labor Code of the Russian Federation).

MORE ABOUT DOCUMENTS

Hiring is formalized by order

according to the unified form No. T-1 (approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1). In this case, the form can be supplemented with a line indicating the name of the document on the basis of which the leader was appointed (elected)[4].

Please note that the basis for issuing an employment order is a concluded employment contract. The protocol (decision, order of the owner of the organization’s property) on the election or appointment of a person as the head of the organization is the basis for concluding an employment contract[5].

The addition of unified forms in budgetary organizations is carried out in accordance with the Procedure for the use of unified forms of primary accounting documentation (approved by Resolution of the State Statistics Committee of Russia dated March 24, 1999 No. 20). Adding details to forms without issuing an administrative document of the manager is not allowed[6].

NOTE! From January 1, 2013, the use of unified forms approved by the State Statistics Committee of Russia is mandatory only for government organizations. Non-governmental organizations are required to approve local unified forms of primary accounting documents. Of course, you can continue to use the previous unified forms in their original or improved form, having approved their use by order of the head of the organization.

The order for the appointment of the head of the organization is signed by the newly elected/appointed head himself as the sole executive body. As a general rule, the employee must be familiarized with this document within three days from the date of actual start of work[7].

Work book

The manager is filled out by the person responsible for working with work books no later than a week from the date of hiring. The responsible person is appointed by order of the head of the organization[8].

All entries about the work performed are entered into the work book on the basis of the relevant order (instruction) of the employer[9].

The work book is filled out in accordance with clause 3.1 of the Instructions for filling out work books[10]. According to this paragraph, the name, date and number of the order (instruction) or other decision of the employer are entered in column 4 of the work book.

It is worth noting that when filling out the manager’s work book, you can additionally enter the details of the protocol (or decision, if the manager is the only founder) in the specified column.

NOT FORGET!

The company is obliged to report the appointment of the general director to the tax authorities. In accordance with paragraph 5 of Art. 5 of the Federal Law of 08.08.2001 No. 129-FZ “On state registration of legal entities and individual entrepreneurs” (as amended on 29.12.2012), a legal entity is obliged to inform the registration authority at its location about changes in information about a person who has the right to power of attorney to act on behalf of a legal entity, within three days from the date of change of this information according to Form P14001[11] (state duty is not paid).

Let us also recall that the general director has the right of first signature on the organization’s documents, therefore, from the moment the director is appointed, it is necessary to replace the bank card with sample signatures and a seal. This is stated in clause 7.14 of Bank of Russia Instruction No. 28-I dated September 14, 2006 “On opening and closing bank accounts and deposit accounts” (as amended on August 28, 2012). The form of the bank card is given in the Appendix to the specified Instructions of the Bank of Russia.

The organization must submit to the bank:

• a bank card indicating the name of the new manager. The authenticity of the signature must be certified either by a notary or an authorized representative of the bank;
• documents confirming the powers of the new director;
• identification document of the new director (for example, passport).

Thus, the process of hiring the head of an organization is in many ways similar to similar procedures for other employees, but personnel officers should not forget about the features associated with his special status.

[1] Letter 08/18/2009 No. 22-2-3199.

[2] Letter dated December 28, 2006 No. 2262-6-1.

[3] Resolutions of the FAS of the West Siberian District dated November 9, 2010 in case No. A45-6721/2010, FAS of the Far Eastern District dated October 19, 2010 No. F03-6886/2010 in case No. A73-2821/2010, etc.

[4] At the same time, the new manager signs his first order on the main activity: that he assumes responsibilities. — Note. scientific ed.

[5] Note scientific ed.

[6] The inclusion of additional lines in the “Text” attribute does not require approval by an administrative document. — Note. scientific ed.

[7] The need for the head of the organization to familiarize himself with his own order is not unconditional. — Note. scientific ed.

[8] Clause 45 of the Rules for maintaining and storing work books, producing work book forms and providing them to employers (approved by Decree of the Government of the Russian Federation dated 04/16/2003 No. 225 “On work books”, as amended on 03/25/2013; hereinafter referred to as the Rules for maintaining work records books).

[9] Clause 10 of the Rules for maintaining work books.

[10] Approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 No. 69.

[11] Approved by Decree of the Government of the Russian Federation dated June 19, 2002 No. 439 (as amended on March 9, 2010).

Features of an agreement with a director in a state organization

When applying for a job as a director of a government institution, he, like any employee, must

• obtain a passport, work book and tax identification number. In addition, he must submit: a certificate of his own income and property;
• a similar certificate regarding the income and property of the spouse and minor children.

Certificates are submitted at the time of hiring and are updated annually.

You should know that a contract with the head of a state organization must be concluded according to the standard form from Government Decree No. 329 of April 12, 2013. But an employment agreement with the director of a commercial company can be developed independently - there is no standard form provided.

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.

Dismissal of the director

So, the director is a difficult worker. Moreover, the company cannot function without it. However, he can be dismissed on general grounds, like any other employee of the organization. Moreover, Article 278 of the Labor Code of the Russian Federation provides additional grounds for dismissal of a director :

• in accordance with the requirements of bankruptcy legislation (the director is dismissed due to removal from office);
• in accordance with the decision of the owners or authorized body of the organization; on other grounds specified in the employment contract.

However, there are cases when a director cannot be fired . However, this applies to any employee of the organization. All such situations are somehow related to children. You cannot fire:

• a woman during pregnancy;
• a woman with a child under three years of age;
• single mother of a child under 14 years of age or a disabled child under 18 years of age;
• another person who is raising a child under 14 years of age or a disabled child under 18 years of age without a mother;
• a person who is the sole breadwinner of a child under 3 years of age, if there are three or more children in the family, or a disabled person under 18 years of age.

This does not mean that the persons mentioned cannot be fired. For this, there are special grounds for their dismissal, provided for in Articles 81 and 336 of the Labor Code of the Russian Federation.

An employment contract cannot be terminated if the employee is on vacation or sick leave. The exception is the liquidation of the company.

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.