Contract with the director. What conditions should be foreseen. (+ Template of a contract with the director of the LLC)

Is it necessary to conclude a contract with the director of the LLC?

The society is managed by its bodies. The governing bodies of the company are the general meeting of its members and the executive body, unless otherwise established by law ( Part 1, 2 of Article 97 of the Civil Code of Ukraine ).

The executive body of the company manages the current activities of the company. The competence of the executive body of the company includes the resolution of all issues related to the management of the current activities of the company, except for issues that belong to the exclusive competence of the general meeting of participants and the supervisory board of the company (in case of formation) ( part 1, 2 of article 39 of the ZU "About limited and additional liability companies" ).

At the same time, the executive body of the company may consist of one or more persons ( Part 2 of Article 99 of the Civil Code of Ukraine ). The executive body of the company is one-person. The name of the sole executive body is "director", if the statute does not provide for another name ( part 4 of article 39 of the ZU "On companies with limited and additional liability" ).

Consider the situation when the executive body consists of one person and is not the owner or founder of the enterprise. Such a body (head) usually has the name director, general director. It should be remembered that the manager is an employee. The labor relations of managers have their own characteristics and this is logical, because the manager acts on behalf of the company, represents the interests of the company in other organizations, resolves issues related to the company's activities in the order determined by the founding documents. Therefore, the specifics of the relationship between owners and managers are regulated by the founding documents. Also, one of the features of labor relations is the conclusion of a written labor agreement (contract) with the manager.

A civil law or labor agreement (contract) is concluded with the individual executive body and each member of the collegial executive body. An agreement (contract) concluded with a sole executive body and a member of a collegial executive body is signed on behalf of the company by a person authorized to do so by the general meeting of participants ( Part 12 of Article 39 of the Law on Limited and Additional Liability Companies) .

In case of employment of the manager of the enterprise, an agreement (contract) is concluded with him, which defines the term of employment, the rights, duties and responsibilities of the manager, the terms of his financial support, the terms of his dismissal from the position, other terms of employment upon agreement of the parties ( Part 4 of Article 65 of the Economic Code of Ukraine ).

A contract is a special form of an employment contract, in which the term of its validity, rights, obligations and responsibilities of the parties (including material), conditions of material support and organization of the employee's work, conditions of termination of the contract, including early termination, can be established by agreement of the parties. The scope of the contract is determined by the laws of Ukraine ( Article 21 of the Labor Code of Ukraine ).

At the same time, the employment contract is concluded, as a rule, in writing. Compliance with the written form is mandatory in a number of cases , which are defined in Art. 24 of the Labor Code of Ukraine , which also states that a written employment contract (contract) is mandatory in cases provided for by law.

So, from the analysis of Art. 24 of the Criminal Code of Ukraine and Part 4 of Art. 65 of the Economic Code of Ukraine , it follows that in the case of hiring a company manager, a written employment contract (contract ) must be concluded with him . At the same time, according to the current legislation, in particular, in view of Part 6 of Art. 39 of the Law "On limited and additional liability companies" , the director is appointed and dismissed by the higher body of the company. Thus, for the appointment of the head of the company, the decision of the highest management body (minutes of the general meeting) is mandatory.

The contract is the basis for issuing an order (order) on the acceptance (hiring) of an employee for work from the day established in the contract by agreement of the parties (clause 9 Regulation on the procedure for concluding contracts for the acceptance (hiring) of employees, approved by the resolution of the Cabinet of Ministers of Ukraine dated March 19, 1994 No. 70 ).

The contract is drawn up in two copies, which have the same legal force and are kept by each of the parties to the contract. ( clause 8 of the Regulation on the procedure for concluding contracts when hiring (hiring) employees, approved by the resolution of the Cabinet of Ministers of Ukraine dated March 19, 1994 No. 70 ).

Consequences of not concluding a contract with the director . In addition to feature risks. mentioned above, which are related to confidential information and the peculiarity of the position of the manager , should be focused on the legal responsibility of the legal entity in the event of not concluding a written employment contract (contract) with the director. Yes, in accordance with Part 2 of Art. 265 of the Labor Code of Ukraine , legal entities and natural persons - entrepreneurs who use hired labor are liable in the form of a fine in the event of actual admission of an employee to work without a labor contract ( contract ), in the amount of ten times the minimum wage established by law at the time of discovery of the violation . for each employee against whom a violation was committed. At the moment, such a fine is UAH 67,000.00.

In connection with the specified feature of this type of employment contract, it is necessary to understand what mandatory conditions the contract should contain, what conditions should be included in it in order to avoid risks, who should conclude such a contract and other accompanying nuances.

What conditions are stipulated in the contract with the director

Being a special form of an employment contract, the contract regulates both labor and other closely related social relations. This applies, in particular, to housing rights, social security, personal transport and other issues that are provided at the expense of employers' profits.

Essential (mandatory ) terms and conditions of the contract:

- parties to the contract

- the term of the contract, the term of employment

- the rights and duties of the manager

- manager's responsibility (including material)

- conditions of financial support of the manager (salary, social security, etc.)

- conditions of work organization (including working time and rest time regimes of the employee)

- terms of dismissal

- conditions for terminating the contract, including early termination

- details of the parties

Other terms of the contract (optional , recommended):

- establishment of a trial period and terms of labor organization and material support during the trial period

- scope of the proposed work and requirements for quality and terms of its execution

- additional benefits, guarantees and compensations, not established by the current legislation, at the expense of the employer

- conditions for using one's own or company car

- provisions on non-disclosure of commercial secrets and confidential information

- conditions regarding incompatibility

- force majeure conditions

- procedure for payment of severance pay

- change of contract conditions

- reporting procedure before the general meeting of participants/owner

- special working conditions for certain professions and types of work, taking into account their specifics, professional features.

- other conditions necessary for the fulfillment of the obligations assumed by the parties, taking into account the specifics of the work, professional characteristics and financial capabilities of the enterprise, institution, organization or employer.

Some features of the contract with the director

According to Clause 20 of the Regulation on the procedure for concluding contracts for hiring (hiring) employees, approved by Resolution No. 70 of the Cabinet of Ministers of Ukraine dated March 19, 1994 , a contract cannot be :

• the procedure for consideration of individual labor disputes has been changed;
• full financial responsibility is introduced for the employee, except for the cases provided for by Article 134 of the Labor Code of Ukraine.

In detail, it is necessary to dwell on some terms of the contract, which differ significantly from the terms of an ordinary employment contract, either legally or from the practice of business turnover.

Yes, the amount of payments cannot be less than what is stipulated by the current legislation, agreements and collective agreement, and depends on the fulfillment of the terms of the contract. The contract may also determine the conditions for increasing or decreasing the amount of wages stipulated by the parties, establishing additional payments and allowances, bonuses, rewards based on the results of work for a year or another period, participation in the profits of the enterprise, institution, organization (if this is provided for by the current legislation and their statutes). or a citizen-entrepreneur ( clause 11 of the Regulation on the procedure for concluding contracts when accepting (hiring) employees, approved by the resolution of the Cabinet of Ministers of Ukraine dated March 19, 1994 No. 70).

Responsibility . For damage caused to an enterprise, institution or organization in the performance of work duties, employees, except for employees who are officials, due to whose fault the damage was caused, bear material responsibility in the amount of direct actual damage, but not more than their average monthly earnings ( art . 132 of the Criminal Code of Ukraine ).

The head of an enterprise, institution, organization of all forms of ownership is guilty of late payment of wages for more than one month , which led to the payment of compensation for violation of the terms of its payment, and on the condition that the State Budget of Ukraine and local budgets, legal entities of the state form of ownership do not have debtors to this enterprise are financially responsible for the full amount of damage caused to the enterprise, institution, organization due to their fault ( clause 9 part 1 of article 134 of the Criminal Code of Ukraine ).

Privacy . On the one hand , the employer is obliged to ensure the confidentiality of the terms of the contract. Persons who, by virtue of their official duties, have access to the information recorded in the contract, are not entitled to disclose it. Confidentiality requirements do not apply to the terms of the contract regulated by current legislation, and in relation to the bodies that monitor their compliance (clause 6 of the Regulation on the procedure for concluding contracts when accepting (hiring) employees, approved by the resolution of the Cabinet of Ministers of Ukraine dated 19 March 1994 No. 70 ). On the other hand , managers, by virtue of their position, have access to certain information, the distribution of which is inadmissible to preserve the interests of the enterprise, therefore, the contract should separately specify such conditions, the period during which, from the moment of termination of the employment relationship, the person does not have the right to distribute certain information, to separately provide for responsibility for the disclosure of such information.

Incompatibility Terms. A member of the executive body of the company cannot, without the consent of the general meeting of participants or the supervisory board of the company ( Part 5 of Article 40 of the Law on Limited and Additional Liability Companies) :

1) to carry out economic activity as an individual entrepreneur in the sphere of activity of the company;

2) be a member of a general partnership or a full member of a limited partnership carrying out activities in the sphere of activity of the partnership;

3) to be a member of the executive body or the supervisory board of another economic entity, which carries out activities in the sphere of activity of the company.

The contract may provide for additional benefits, guarantees and compensations , not established by current legislation, at the expense of the employer. If the terms of the contract provide for the employee to move to work in another area, the parties shall determine in the contract the conditions, guarantees and compensation for such a move and the conditions for providing the employee (and, if necessary, members of his family) with living space or paying the costs of renting (subleasing) living space premises or use of the hotel. If the employee will use his own car for business trips, the parties shall stipulate the terms of payment of the corresponding compensation. By agreement of the parties, the contract may specify other terms of labor organization necessary to fulfill the obligations assumed by the parties ( paragraphs 13, 14, 16 of the Regulation on the procedure for concluding contracts when hiring (hiring) employees) , approved by the resolution of the Cabinet of Ministers of Ukraine dated March 19, 1994 No. 70 ).

The dismissal of the head of the enterprise may take place on the following grounds:

– in connection with the expiration of the contract ( clause 2 of article 36 of the Labor Code );

- on the grounds stipulated in the contract ( clause 8 of article 36 of the Labor Code );

- at the initiative of the employee ( Articles 38 , 39 of the Labor Code);

- by agreement of the parties ( clause 1 of article 36 of the Code of Criminal Procedure );

- at the initiative of the owner or an authorized body (Articles 40 , 41 of the Code of Civil Procedure);

- at the request of a trade union organization ( Article 45 of the Labor Code )

- implementation of activities or membership, participation in certain bodies, societies without the consent of the general meeting of participants ( Part 5, 6 of Article 40 of the Law on Limited and Additional Liability Companies) .

In particular , Art. 41 of the Labor Code of Ukraine provides for additional grounds for terminating an employment contract with a manager:

1) one-time gross violation of labor duties by the head of an enterprise, institution, organization of all forms of ownership (branch, representative office, branch, and other separate subdivision), his deputies, the chief accountant of the enterprise, institution, organization, his deputies, as well as officials of revenue authorities and assemblies, which have been assigned special titles, and officials of central executive bodies implementing state policy in the spheres of state financial control and price control;

1 ¹ ) culpable actions of the head of the enterprise, institution, organization, as a result of which wages were paid late or in amounts below the minimum wage established by law.

Upon termination of the employment contract on the grounds specified in Clause 6 of Article 36 and Clauses 1, 2 and 6 of Article 40 of this Code, the employee shall be paid severance pay in the amount of at least the average monthly salary; in case of conscription or entry into military service, referral to alternative (non-military) service (Clause 3 of Article 36 ) - in the amount of two minimum wages; as a result of violation by the owner or a body authorized by him of labor legislation, a collective or labor agreement (Articles 38 and 39 ) - in the amount stipulated by the collective agreement, but not less than three months' average earnings; in case of termination of the employment contract on the grounds specified in Clause 5 of the first part of Article 41 , - in the amount of not less than six months' average earnings ( Article 44 of the Labor Code of Ukraine of Ukraine ) .

At the same time, it should not be forgotten that the terms of the contract, which worsen the position of the employee compared to the current legislation, agreements and the collective agreement, are considered invalid (clause 5 of the Regulation on the procedure for concluding contracts when accepting (hiring) employees, approved by the resolution of the Cabinet of Ministers of Ukraine dated 19 March 1994 No. 70 ).

You can create a contract with the director of the LLC in the Instaco constructor by following the link . To create, you only need to enter the necessary data in the designer.