The actual admission of the employee to work. We issue the actual admission to work. Registration of the actual admission

Article 61 of the Labor Code states: The employment contract comes into force from the date of its signing by the employee and the employer, unless otherwise provided by this Code, other federal laws, other regulatory legal acts Russian Federation or an employment contract, or from the date of the actual admission of the employee to work with the knowledge or on behalf of the employer or his authorized representative. labor contract?

Answer

Answer to the question:

In practice, first an employment contract is concluded with the employee, then he is allowed to work. But there are times when an employee needs to be allowed to work, but there is no possibility for any reason to sign an employment contract. At this moment, the actual admission to work is carried out.

At the same time, the law does not exempt the employer from the obligation to draw up all Required documents, but only changes the stages of the recruitment procedure and establishes the features.

Part 2 of Art. 67 of the Labor Code of the Russian Federation provides that with the actual admission of the employee to work, the employer must conclude an employment contract with him in writing no later than three working days from the date of the actual admission of the employee to work. There are no exceptions to general rule h. 2 tbsp. 68 of the Labor Code of the Russian Federation: the employer's order for hiring is announced to the employee against signature within three days from the date of the actual start of work.

The situation in which an employee is allowed to work before a written employment contract is drawn up is exceptional. Therefore, in order to protect the rights of the employee, the legislator establishes additional guarantees: even if subsequently the necessary documents are not properly drawn up, the employment contract is considered concluded from the moment the employee is actually admitted to work.

Labor legislation does not regulate the procedure for the actual admission of an employee to work and does not directly provide that in this case any documents must be drawn up. In part 2 of Art. 67 of the Labor Code of the Russian Federation focuses only on the fact that "the employee started work with the knowledge or on behalf of the employer or his representative."

Details in the materials of the System Personnel:

Literature:

Actual tolerance to work: important changes

Do labor relations arise if a person is authorized to work?

- Yes, there are.

Is it possible to bring an employee to disciplinary responsibility for admitting to work without the knowledge of the employer?

- Yes, you can.

Does an employee have to work two weeks if he decides to quit the next day after being admitted to work?

- Yes, I should.

From January 1 of this year, amendments to Labor Code concerning admission to work, in particular, it is specified who has the right to admit individuals to work, what are the consequences of actual admission to work by an unauthorized person (Article 12 of Law No. 421-FZ).

Related articles:

"Material liability of the employee: important recommendations"(No. 11, 2013)

"We allow an employee to work until the conclusion of an employment contract" (No. 12, 2010)

Now, an employer or an authorized representative can admit a citizen to work (part two of article 67 of the Labor Code of the Russian Federation). The authorized representative of the employer can be an employee of the organization who has been empowered by the employer.

The Labor Code does not establish how to authorize an employer's representative to actually admit new employees to work. The employer independently chooses the appropriate way of empowering his representative.

The powers of a representative can be recorded in the constituent documents of the organization, local regulation, employment contract, or job description(Clause 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2). If powers are vested in the head of a separate structural unit (for example, a branch), then his powers are enshrined in the regulation on the unit and in a power of attorney (Article 55 of the Civil Code of the Russian Federation).

You can also empower an employee by issuing an order. Indicate in the order the new rights of the representative and familiarize him with the administrative document (sample below). Since this function will be new for such an employee, it is necessary to obtain his consent.

download sample

Advice

If you want to set an employee probation, conclude an employment contract with a test condition until the employee is actually admitted to work (part two of article 70 of the Labor Code of the Russian Federation)

If the person has started to perform job responsibilities with the knowledge or on behalf of the employer or his authorized representative, an employment contract with a citizen is considered already concluded, even if it is not executed in writing (part two of article 67 of the Labor Code of the Russian Federation). From the moment of admission to work, the employee acquires all the rights and obligations provided for labor legislation... It is necessary to draw up an employment contract in writing within three working days from the day the employee was actually admitted to work. In this case, the employment contract must indicate the date of commencement of work, that is, the date of actual admission to work (part two of article 57 of the Labor Code of the Russian Federation)

The Labor Code now explicitly provides that the actual admission to work without the knowledge or order of the employer or his authorized representative is prohibited (part four of article 16 of the Labor Code of the Russian Federation).

We issue the actual admission to work

In order to formalize an employment relationship with a person admitted to work, an authorized representative of the employer must draw up a memorandum on admission to work addressed to the person responsible for registering the hiring (for example, the head of the personnel department). It is also advisable to notify the accounting department of the actual admission of the employee to work. The memo is drawn up in any form with the indication of the full name and surname. new employee and date of actual start of work (sample below).

download sample

On the basis of this memorandum, an employment contract is concluded with a new employee and an order for employment is issued in accordance with the unified form No. T-1 or another model adopted by the organization (sample below)

download sample

Confirmation of actual admission to work

How can an employee prove that he was actually admitted to work, if an employment contract was not concluded with him and an order for employment was not issued? There is a lot of evidence that an employee can resort to when a dispute arises.

In the section "Personnel documents"

you will find samples: employment contract (), employment order (), work record ()

If the employee has worked with documents, the proof will be that he has copies of documents or reports that he has drawn up for the employer. Perhaps the employee will be able to imagine registration numbers and the names of documents that he prepared for the employer, written instructions or resolutions of the head to the employee.

If an employee in the course of his activity made some products, the numbers or codes of the parts that he made can serve as evidence.

The most difficult thing is to prove the fact of performing work that is not related to material production. This work is performed by consultants, sales representatives etc. They can prove the performance of work in the interests of the employer by presenting photographs or videos from the workplace. Today, almost any phone has photo and video functions. You can also use video surveillance installed by the employer. If an employee declares in court that the employer has video surveillance, the court has the right to request a video from the employer for the days when the employee worked without registration labor relations.

Attention!

The burden of proving the existence of labor relations with the actual admission to work lies with the employee (cassation ruling of the Nizhny Novgorod Regional Court dated December 27, 2011 No. 33-12786 / 2011)

In addition, workers are often given a pass to enter the employer's territory, they can be issued with uniforms containing elements corporate identity employer. Perhaps the employee received the equipment or keys for which he signed in the employer's documents

The proof can be the confirmation by colleagues (witness testimony) of the fact of the employee's stay in the employer's territory and the performance of work for the employer (cassation ruling of the Krasnoyarsk Regional Court dated January 11, 2012 No. 33-77). The presence of the above evidence will help the employee prove in court that he was actually admitted to work and performed work for the employer without concluding an employment contract.

Payment for work performed with actual admission by an unauthorized person

Amendments to the Labor Code provide that if the employer refuses to formalize labor relations with a citizen admitted to work by an unauthorized person, the employer is obliged to pay for the employee's labor (part one of article 67.1 of the Labor Code of the Russian Federation). Payment is made for the time actually worked by him or the work performed.

However, the law does not establish the amount of remuneration without formalizing labor relations. The employer can pay for the work based on the salary of the position in which the person admitted to work actually worked.

In any case, the amount of remuneration must be no less than the federal or regional (if the organization has joined the regional tripartite agreement on the minimum wage) of the minimum wage, calculated in proportion to the hours worked (Articles 133, 133.1 of the Labor Code of the Russian Federation). Please note that if the employee does not agree with the amount of his remuneration, he can go to court.

Advice

Pay for the actual work performed based on the regional minimum wage

Responsibility for admitting a person to work without formalizing an employment relationship

Responsibility for admitting a person to work without formalizing an employment relationship may be borne by the employer, his authorized representative, as well as an employee who allowed an individual to work without being authorized by the employer.

If the employer has not drawn up an employment contract in writing within three days, he may be held administratively liable for violation of labor legislation. In this case, officials face an administrative fine in the amount of 1,000 to 5,000 rubles, legal entities - from 30,000 to 50,000 rubles or an administrative suspension of activities for up to 90 days (Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

Attention!

From the monthly wages an employee can be retained no more than 20 percent (part one of article 138 of the Labor Code of the Russian Federation)

Bringing the employer to administrative responsibility does not relieve him of the obligation to draw up an employment contract with the employee in writing. An unauthorized employee who allowed a person to work without formalizing an employment relationship may be held liable by the employer, including material liability, if the employer does not recognize the employment relationship (part two of article 67.1 of the Labor Code of the Russian Federation).

The rules for attracting an employee to material responsibility provided for by Chapter 39 of the Labor Code. The employee must compensate the employer for the damage caused to him in connection with illegal actions. At the same time, the amount of compensated damage should not exceed the average monthly earnings of the guilty employee (Article 241 of the Labor Code of the Russian Federation).

The employer is obliged to find out the reasons for the damage. For this, it is necessary to request written explanations from the employee. If the employee refuses to give explanations, an appropriate act must be drawn up (part two of article 247 of the Labor Code of the Russian Federation).

If the amount of damage does not exceed the employee's average monthly earnings, the damage caused can be recovered from the employee by order of the employer. This must be done no later than one month from the date of the final determination of the amount of damage (Article 248 of the Labor Code of the Russian Federation).

Also, the harm-giver can compensate the damage on a voluntary basis. If the guilty employee has agreed to voluntarily compensate for the damage caused, he must submit a written commitment to the employer.

If the monthly period from the date of the final determination of the amount of damage has expired or the employee does not agree to voluntarily compensate for the damage, the amount of which exceeds his average monthly earnings, the employer must go to court to recover the damage (part two of Article 248 of the Labor Code of the Russian Federation).

Also, an unauthorized employee may be held accountable for other types of liability - disciplinary or administrative. In particular, an administrative fine may be imposed on officials for violation of labor legislation in the amount of 1,000–5,000 rubles (Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

Remember the main thing

The experts who took part in the preparation of the material note:

Tatiana VASILIEVA,

lawyer, leading expert of the "Personnel business" magazine:

- The employer or his authorized representative has the right to admit a person to work. The employer must specifically give his representative the authority to admit new employees to work. Actual admission to work without the knowledge or instructions of the employer or his authorized representative is prohibited (part four of article 16 of the Labor Code of the Russian Federation).

Margarita ERMOLAEVA,

lawyer, consultant, independent expert (Moscow):

- If someone is admitted to work by an unauthorized employee, the employer is obliged to pay for the work of the actually admitted person. Payment is made for hours worked or work performed. In this case, an unauthorized employee may be held liable by the employer, including material liability.

Related documents

Document	Will help you
Article 12. Federal law dated December 28, 2013 No. 421-FZ "On Amendments to Certain Legislative Acts of the Russian Federation in Connection with the Adoption of the Federal Law" On special assessment working conditions "" (hereinafter - Law No. 421-FZ)	Find out what changes have been made to the Labor Code regarding the actual admission of workers to work
Articles 57, 67 of the Labor Code of the Russian Federation	Recall the requirements for the content and form of an employment contract
Article 5.27 of the Administrative Code of the Russian Federation	Learn about liability for violation of labor laws

The material was prepared by Irina PODLESNYKH, head of the personnel department of CJSC "Agency for Quality Supervision" (Moscow)

Best regards and wishes for a comfortable work, Ekaterina Zaitseva,

Expert Systems Personnel

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If you pay vacation pay a day later, the company will be fined 50,000 rubles. Reduce the period of notice of the reduction by at least a day - the court will reinstate the employee at work. We have studied the jurisprudence and prepared safe recommendations for you.

“The basis for the establishment of an employment relationship, the Code allows for the factual admission to work with the knowledge or on behalf of the employer or his representative, regardless of whether the employment contract was duly executed. It should be borne in mind that this legal fact will give rise to an employment relationship if the employee starts to perform the job function without a written employment contract. In this case, the employer must, within three days from the date of commencement of work, draw up a contract in writing ”Commentary to the Labor Code of the Russian Federation / Ed. K.N. Gusov. - M .: OOO "Prospect Publishing House". 2003 - S. 59.

According to par. 7 tbsp. 16 of the Labor Code of the Russian Federation - “In cases and in the procedure established by law, other regulatory legal acts or the charter (regulation) of the organization, labor relations arise on the basis of an employment contract as a result of: actual admission to work with the knowledge or on behalf of the employer or his representative, independently on whether the employment contract was duly executed ”.

Factual approval to work represents the presence of the following circumstances:

a) the employee actually started work (that is, he began to perform a labor function, which he should have performed under an employment contract that had not yet been duly executed);
b) it happened with the knowledge of the employer (if his representative). It doesn't matter that the latter does not directly give permission: the main thing is that he did not forbid starting work. Thus, along with the written form, the contract of Art. 67 of the Labor Code distinguishes between another form of an employment contract, namely "by way of actual admission to work";
3) upon "actual admission to work", the employer is obliged (and not only entitled) to conclude an employment contract with the employee in writing. At the same time, the term for registration of an employment contract: cannot exceed three calendar days.

With the actual admission of the employee to work, the employer is obliged to conclude an employment contract with him in writing no later than three days from the date of the actual admission of the employee to work. Circumstances indicating the actual admission of the employee to performance job responsibilities, can serve: registration of a pass to enter the building occupied by the employer; performing certain work on behalf of the management (any written orders, documents addressed to the employee) indicating the name of the employee, written materials made by the employee depending on the nature of the specific work, payment of wages.

So, in the case of I., who went to court with a claim against OJSC "Tekstilstroy" for reinstatement at work, collection of wages for the time forced absenteeism, compensation for moral harm, payment of wage arrears Materials of judicial practice of the Sosnovsky District Court of the Chelyabinsk Region were used., as evidence of I.'s actual admission to work, the following facts and documents were taken:

“The court established that I. was allowed to work as a security guard at OJSC“ Teksistroy ”from September 28, 1997. This circumstance is confirmed by:

The testimony of witness L., who explained to the court that he worked in this organization from July 1, 1997 to April 1998. In the fall of 1997, a place was vacated for them, and he invited I. to talk to the chief. I. called the chief and was accepted. After working for a little over a month, I. fell ill, and his boss fired him as if for absenteeism. Claims that I. worked with him as a security guard in October-November 1997. The mode of operation was a day after three. When hiring, an employment contract was drawn up, no entry was made in the work book. I received my salary once a week on a cash invoice. When accepting a shift, he walked around the territory with the person passing the shift, checked the locks, glass, transport. They signed in a notebook about the delivery and acceptance of duty, and then they started a magazine. When the magazine became dilapidated, it was replaced with a student's notebook. The register of reception and delivery of duty and vehicles, in which there are entries from April 17, 1996 to October 20, 1997. From January 23 to June 29, 1997, the journal contains records of the acceptance and delivery of the shifts of I. It is noteworthy that when taking the shift, I., unlike other guards, always made comments on the state of the protected area, as evidenced by his entries in the journal ... I.'s signature and his notes appear again in the journal since September 28, 1997. The testimony of the witness L., who confirmed that it was this magazine that he filled out during the period of his work in this organization. Witness L. identified both the signature and the notes of I. by the conclusion of a handwriting examination dated January 19, 2000, according to which “The signatures made in the register of reception and delivery of duty and vehicles for the period from September to October 20, 1997 belong to I., L., M. , G., and not to others. The handwritten texts in the register of reception and delivery of duty for the period from September to 20 November 1997 on behalf of I. were made by I. himself, and not by another person, on behalf of L. made by L. himself, and not by another person ”.

Analyzing the norms of the Labor Code of the Russian Federation, A. Kurennoy points out: “In some detail, the Labor Code of the Russian Federation spelled out the mechanism for the entry into force of an employment contract (Article 61 of the Labor Code of the Russian Federation). An employment contract begins to operate from the day it is signed by the employee and the employer, unless otherwise established by federal laws, other regulatory legal acts 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. The provision has been practically preserved according to which the actual admission to work is considered to be the conclusion of an employment contract, regardless of whether the employment was properly formalized ... In this regard, the case of Kirichenko is of interest, who filed a lawsuit against AOZT Areopag EKS LTD. "on the entry in the work book of entries on the hiring as a chief specialist and on the dismissal for the reduction of staff, as well as on the collection of wages and a two-month severance pay for the reduction of staff. The case turned out to be under consideration by the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, which satisfied the protest of the Deputy Chairman of the Supreme Court of the Russian Federation and indicated the following. Refusing to satisfy the claims, the court proceeded from the fact that the fact of the conclusion labor agreement between the plaintiff and the defendant at the hearing did not find his confirmation. However, one cannot agree with this conclusion. An employment contract is concluded in writing. Hiring is formalized by an order (decree) of the administration, and the actual admission to work is considered the conclusion of an employment contract, regardless of whether the hiring was properly formalized. In this regard, an employment contract is considered concluded if the performance of work without issuing an order is entrusted to an official who has the right to hire, or when the work was performed with his knowledge. From the attached file of the Presnensky Intermunicipal Court of the Central Administrative District of Moscow, it appears that the plaintiff was actually admitted to work, carried out the instructions of the vice-president of AOZT Areopag EKS LTD and received a salary for two months. Refusing to satisfy the requirements for making an entry in the work book for employment and dismissal due to staff reduction, the court referred to the absence of an approved staffing table chief specialist. However, this does not indicate that the plaintiff was not hired and did not perform it. The absence of an appropriate position in the staffing table is the basis for the dismissal of an employee to reduce staff. The court did not take into account the circumstances testifying to the factual admission of the plaintiff to work by a person who has the right to hire, about the fulfillment of his tasks, the payment of wages (which was not contested by the defendant at the hearing), about the presence of a pass to enter the building occupied by the defendant, therefore unreasonably refused to satisfy the claims and did not apply the norms of substantive law corresponding to these legal relations ”Kurennoy A.M. Legal regulation conclusion of an employment contract and transfers to another job. // Legislation. 2002. No. 11.P. 27.

Thus, the actual admission to work is the basis for the emergence of labor legal relations between the employee and the employer. The actual admission of the employee to work is confirmed by any written documents of the employer addressed to the employee, the issuance of wages to the employee, testimony and other evidence.

People very often face a de facto admission to work (de facto admission), which is an improper registration of labor relations. That is, people get a job without concluding an employment contract, with the knowledge or on behalf of the employer. In other words, a person performs the work that was entrusted to him, entrusted to him. However, in the legal plan, these relations are not fixed in any way, neither the labor contract, nor the order for employment, the employee was not familiarized with the internal documents, which include the internal labor regulations, the collective agreement, etc.

In this case, the person begins to think about what will happen if after some time they say goodbye to me and do not even pay? Or will they say that I have not passed the test? Many issues are resolved by the Labor Code, according to which an employment contract that is not executed in writing is considered concluded if the employee starts work with the knowledge or on behalf of the employer or his representative. That is, there is an actual approval for work (actual tolerance).

Here it must be borne in mind that the actual admission (actual admission to work) must be carried out directly by the employer or his representative. The representative must have the appropriate authority to hire employees. These powers should be enshrined in constituent documents or local regulations (for example, orders). Only in this case can the employer be obliged to conclude an employment contract with you in a proper form.

However, a problem arises when an employee, starting work on behalf of the employer's representative or with his knowledge, as a rule, does not know about the powers of the official who is hiring. Therefore, it is desirable that, when considering such cases, the courts were on the side of the employee, unless the employer's representatives prove that the employee knew about the valid powers of the person employing him.

It should also be remembered that an employment contract with the actual admission to work must be drawn up within three days. If the employer violates this norm, then he can be brought to administrative responsibility.

In the event the employer refuses to issue employment in accordance with the Labor Code of the Russian Federation, the employee has the right to apply to the court with a claim to conclude an employment contract. You can also contact us first, tell the whole situation, and we will tell you what to do best for you.

For employees who work on the basis of an actual admission (actual admission to work), I can say the following: pay attention to the documents that you sign. In court, if the employer is caught not very decent, you will have to prove the existence of an employment relationship. And this can help:

material liability agreement (there were cases when there was no employment contract, but there is this agreement and the courts recognized the existence of an employment relationship)
audio recordings of conversations with the employer, from which it is clear that you are given assignments, you are doing a certain job.
witnesses (your friends can come to your work and take a photo against the background of the company logo).
other evidence.

Unfortunately, very often people leave their previous place of work, “having previously agreed” that after being fired they will immediately be hired. However, there are times when an employment contract for new job not issued and there is an actual admission. Moreover, later the employer offers an employment contract on different terms than those that were previously agreed. And the comic nature of the situation is that it is almost impossible to prove that an employment contract should be concluded with you on other terms. It turns out a situation when a person quit his previous job in the hope for the best, but did not wait for the best, or rather hastened. To avoid such situations, I recommend concluding employment contracts indicating the date from which you plan to start work (for example, in a month or two). During this time, you will have time to terminate the employment relationship at the previous place of work and leave with peace of mind to a new place of work, where they will be waiting for you with the salary you agreed on.

Personnel officer. Labor law for a personnel officer ", 2008, N 6 Actual admission to work In accordance with Art. 67 of the Labor Code, when a person starts work with the knowledge or on behalf of the employer or his representative, the employment contract is considered concluded, even if it is not executed in writing. This situation is called the actual admission to work. The actual admission is considered an improper procedure for concluding an employment contract, but, despite this circumstance, it is directly provided for by Art. Art. 61 and 67 of the Labor Code as the basis for the emergence of labor relations. Currently, at enterprises, especially in medium and small businesses, people who are hired are organizing the so-called internship. Its duration is set from two to five days, but it happens that the very next day a person is suspended from work.

Actual admission to work = conclusion of an employment contract?

The actual admission is considered an improper procedure for concluding an employment contract, but, despite this fact, it is directly provided for in Art. Art. 61 and 67 of the Labor Code as the basis for the emergence of labor relations. In this situation, the employer is obliged to draw up an employment contract in writing and submit it to the employee for signature no later than 3 working days from the moment he started to perform his job duties. During the same 3 days, the employer is obliged to prepare an order for hiring, declare the employee against signature, and issue a copy of the said order to the employee at his request.

In conclusion, I would like to remind you that labor relations, in accordance with the law, arise from the first day of the so-called internship. A person admitted to such a test of professional suitability is recognized as an employee, i.e.

What threatens the employer with the actual admission of the employee to work

An agreement specifying the test period is drawn up in writing in duplicate before the start of work. Each copy must be signed by the head of the organization or another authorized representative of the employer and the person admitted to work. Execution of an employment contract As mentioned above, an employment contract must be drawn up in writing no later than three working days from the date of actual admission of the employee to work (p.
2 tbsp. 67 of the Labor Code of the Russian Federation). According to Part 2 of Art. 57 of the Labor Code of the Russian Federation required condition for inclusion in an employment contract - the date of commencement of work, therefore, the actual date of commencement of work, preceding the date of the conclusion of the employment contract, is indicated in the employment contract with an approved employee. If the parties have entered into an agreement on the establishment of a trial before starting work, this condition should also be reflected in the employment contract (Appendix 4).

Actual admission to work

It is impossible to issue a copy of SZV-M to a resigning employee. According to the law on recruitment, an employer upon dismissal of an employee is obliged to give him copies of personalized reports (in particular, SZV-M and SZV-STAZh). However, these reporting forms are listed, i.e. contain data about all employees. This means that the transfer of a copy of such a report to one employee is the disclosure of personal data of other employees.
< … Компенсация за unused vacation: ten and a half months go in a year When an employee who has worked in the organization for 11 months is dismissed, compensation for unused leave must be paid to him as for a full working year (clause 28 of the Rules, approved by the NKT of the USSR on April 30, 1930, No. 169). But sometimes these 11 months are not so worked up.< …

Actual admission to work

Important

However, in the future, they will help to confirm the legality of the employment relationship: if necessary, it is the written order for admission that will be proof that the three-day deadline for concluding the employment contract has been met. In addition, written documents confirm (or deny) the fact of admission of an employee to work by an authorized person. Registration of documents As a rule, the need for the actual admission of an employee to work is recorded in a memorandum (Appendix 1) addressed to the head of the organization or another person authorized to do so.

The memo also indicates the reasons why the employee should actually be admitted to work, and determines the date of entry to work.

We issue the actual admission to work

The main document confirming the employee's labor activity is, in accordance with Art. 50 TC labor book established sample... And although admission can be made by verbal order of an authorized official, we recommend that you formalize the actual admission to work in writing, for example, a memorandum, an order on the actual admission to work. Such documents will be a confirmation of the start of work and will consolidate the fact of the emergence of labor legal relations.

Registration of the actual admission Let us consider the registration of the actual admission to work step by step. Option 1 Step 1. We receive from the person admitted to work, documents obligatory for hiring (Article 26 of the Labor Code). Step 2. Introduce the employee against signature with the assigned work, conditions and wages and explain his rights and obligations.
Step 3.

Is the actual admission of an employee to work considered to be the conclusion of an employment contract?

The applicant is given overalls, and during the working day he demonstrates his professional suitability. The next day, an unforeseen circumstance occurs. The applicant is denied employment, explaining that the director did not sign an employment contract and an order for employment.

The applicant is given overalls, and he demonstrates his professional suitability during the working day. The next day, an unforeseen circumstance occurs. The applicant is denied employment, explaining that the director did not sign an employment contract and an order for employment.
In the course of resolving a labor dispute, given the absence of a written employment contract and an order for employment, it is concluded that labor relations with this employee did not arise. But it turns out not so simple. In accordance with Art. 67 of the Labor Code, when a person starts work with the knowledge or on behalf of the employer or his representative, the employment contract is considered concluded, even if it is not executed in writing. This situation is called the actual admission to work.

Is the actual admission to work considered to be the conclusion of an employment contract?

On this page:

What does it mean "admitted to work in fact"
Lines from the Labor Code of the Russian Federation
Employment contract = actual admission
How is the actual admission to work drawn up
Evidence of actual admission to work
Actual admission and probationary period
Consequences of admission to work in fact

The Labor Code aims to streamline the relationship between the labor parties, therefore, the positions enshrined in it have legal implications... This also applies to the grounds for the emergence of these relations, one of which is the actual admission to work. Let us analyze how this can manifest itself in practice, what bears the employee and employers, and what may be fraught with in the event of unfair fulfillment of their legal duties.

A fixed-term employment contract was concluded with him, which indicated that he was accepted for a while labor leave the main employee (Article 293 of the Labor Code of the Republic of Belarus (hereinafter referred to as the Labor Code)). At the end of the term, the employment contract was terminated under paragraph 2 of Art. 35 of the Labor Code, the employee was issued a work book and the final payment was made. A month later, without having passed the competition to the university, the young man returned to the organization and was admitted by the foreman to the previously performed work without paperwork.

Can the actual admission to work be considered the beginning of the employment contract? Legal fact establishing employment relationship The procedure for hiring in accordance with the current labor legislation looks like this: 1) the conclusion of an employment agreement (contract); 2) the publication of an order (decree) on hiring (part four of Art. 25 of the Labor Code).
It also happens: the employer gives verbal consent to the heads of structural units to hire employees, and then the head of the structural unit makes a decision on admitting the employee to work without proper registration, and then notifies the HR specialist. For reference: labor legislation does not provide for an employee to write an application when applying for a job, however, the application form is provided for by the Unified System of Organizational and Administrative Documentation (USORD), approved by order of the Director of the Archives and Records Management Department of the Ministry of Justice of the Republic of Belarus No. 25 dated May 14, 2007. The employment contract is not executed , but it is considered concluded It should be remembered that the actual admission to work is the beginning of the employment contract, regardless of whether the employment was properly formalized (part two of Art.
As a rule, hiring consists of the following stages: we conclude and sign an employment contract with a future employee, where a specific date for starting work is determined, and we are allowed to work. This is a standard and familiar scheme for all personnel officers. But life makes its own adjustments: for example, there is no employee of the personnel department responsible for the preparation of employment contracts, or the head of the organization urgently went on a business trip and therefore cannot sign an employment contract, and the new employee had to start work already "yesterday", since under the threat of failure is an urgent project that promises a good profit. In this case, the actual admission to work comes to the rescue, and the future employee can start performing his duties even without an employment contract signed by the parties.

Legal requirements

Indeed, labor law allows starting work without an employment contract signed by the parties. According to Part 2 of Art. 67 of the Labor Code of the Russian Federation, an employment contract that is not executed in writing is considered concluded if the employee started work with the knowledge or on behalf of the employer or his authorized representative.

At the same time, the law does not at all exempt the employer from the requirement to sign with the employee all the documents necessary for applying for a job, but only gives a short delay: with the actual admission to work, the employer is obliged to draw up an employment contract with the employee in writing no later than three working days from the date of the actual permission of the employee to work. In addition, within three days from the date of the actual start of work, the employee must be familiarized with signature and with the order (decree) for employment, which is established by Part 2 of Art. 68 of the Labor Code of the Russian Federation.

The procedure for issuing the actual admission of an employee to work is not regulated by labor legislation

The procedure for formalizing the actual admission of an employee to work is not regulated by labor legislation, and neither the Labor Code nor any other normative acts indicate the need for additional documents.

The situation under consideration is an exception to the generally accepted rule: “first - the contract, after - work”. And even if in the future the employer does not draw up an employment contract and does not publish all the documents necessary for hiring, the “offended” employee will be able to defend and defend his rights, since the labor legislation considers these labor relations to be established.

However, the person who makes the decision on the actual admission of the employee to work must be endowed with appropriate powers. Only in this case can the employment relationship be recognized as actually established. On the basis of clause 12 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", the representative of the employer in the event of the actual admission of the employee to work is a person empowered to hire employees in accordance with the law, other regulatory legal acts, constituent documents legal entity(organizations) or local regulations or by virtue of an employment contract concluded with this person. Otherwise, the relationship may not be recognized as labor, the employer has the right to refuse and not to conclude an employment contract with an employee who was previously actually admitted to work.

At the end of 2013, Federal Law No. 421-FZ of December 28, 2013 introduced Article 67.1 into the Labor Code, establishing the consequences of the actual admission to work by an unauthorized person.

According to this article, if an individual was actually admitted to work by an employee who is not authorized by the employer to give such admission, and the employer or his authorized representative refuses to recognize the relationship that arose between the person actually admitted to work and this employer, labor relations ( conclude an employment contract with a person actually admitted to work), the employer, in whose interests the work was performed, is obliged to pay such an individual the time actually worked (work performed).

In this case, a person who has allowed the actual admission to work, but does not have the right to do so, is held liable, including material, in the manner prescribed by labor legislation and other federal laws.

So, for example, in accordance with Art. 11 of the Federal Law of 28.12.2013 No. 421-FZ "On Amendments to Certain Legislative Acts of the Russian Federation in Connection with the Adoption of the Federal Law" On Special Assessment of Working Conditions " On January 1, 2015, administrative liability in the form of a fine will be provided for the actual admission to work by an inappropriate person: for citizens in the amount of three thousand to five thousand rubles; for officials - from ten thousand to twenty thousand rubles.

Orally or in writing?

As noted above, the procedure for formalizing the actual admission of an employee to work is not regulated by labor legislation. Part 2 of Art. 67 of the Labor Code of the Russian Federation only established that, with the actual assumption, the employee starts work with the knowledge or on behalf of the employer or his representative.

What should be the order of the authorized person - oral or written?

Of course, an oral order on the actual admission of an employee to work will not contradict the legislation, but it is more expedient to issue this admission in writing.

Of course, the preparation of additional documents (including a memorandum, an order on the actual admission to work, etc.) is a rather laborious process and will increase the time required to formalize the hiring of a new employee. However, in the future, they will help to confirm the legality of the employment relationship: if necessary, it is the written order for admission that will be proof that the three-day deadline for concluding the employment contract has been met.

In addition, written documents confirm (or deny) the fact of admission of an employee to work by an authorized person.

Paperwork

As a rule, the need for the actual permission of the employee to work is recorded in Memorandum (Appendix 1) addressed to the head of the organization or another person authorized to do so.

The memo also indicates the reasons why the employee should actually be admitted to work, and determines the date of entry to work.

The head of the organization or other authorized official puts a resolution on the memo indicating the measures necessary to formalize the actual admission to work.

The memo is the basis for the publication of the order on the actual admission to work (Appendix 2), with which the employee gets acquainted with the signature. This order is an order for personnel, in the text of which it is necessary to indicate the date from which the employee is allowed to work. The order is signed by the head of the organization or other authorized person.

If necessary, in the cases provided for by law (Article 69 of the Labor Code of the Russian Federation), after the signing of the order on the actual admission to work, the future employee should be sent for a mandatory preliminary medical examination / examination. Before starting work, admitted to work in accordance with Part 3 of Art. 68 of the Labor Code of the Russian Federation, you need to familiarize yourself with the internal labor regulations, other local regulations of the organization related to the upcoming labor activity, the collective agreement, as well as, in accordance with Part 2 of Art. 225 of the Labor Code of the Russian Federation, instruct on labor protection. In addition, from the person admitted to work, it is necessary to obtain the documents listed in Art. 65 of the Labor Code of the Russian Federation for the subsequent conclusion of an employment contract.

Establishment of the test

The condition on the establishment of a test for a person allowed to work must be recorded in a separate test agreement (Appendix 3). This requirement specified in Part 2 of Art. 70 of the Labor Code of the Russian Federation. If an employee is actually admitted to work without drawing up an employment contract, then, according to this norm, a test condition can be included in an employment contract only if the parties have drawn up it as a separate agreement before starting work.

An agreement specifying the test period is drawn up in writing in two copies before the start of work. Each copy must be signed by the head of the organization or another authorized representative of the employer and the person admitted to work.

An employment contract must be drawn up in writing no later than three working days from the date of actual admission of the employee to work

Registration of an employment contract

As mentioned above, an employment contract must be drawn up in writing no later than three working days from the date of actual admission of the employee to work (part 2 of article 67 of the Labor Code of the Russian Federation).

According to Part 2 of Art. 57 of the Labor Code of the Russian Federation, a prerequisite for inclusion in an employment contract is the date of commencement of work, therefore, an employment contract with an employee admitted to work indicates actual start date preceding the date of the conclusion of the employment contract.

If the parties concluded an agreement on the establishment of a trial before starting work, this condition should also be reflected in the employment contract ( Appendix 4).

An employment contract is the basis for issuing an order for employment, which also indicates the actual date of commencement of work.

The work book, with the actual admission of the employee to work, is drawn up and filled in according to the general rules provided for by the Decree of the Government of the Russian Federation of 04.16.2003 No. 225 "On work books" and the Instruction for filling out work books, approved. Resolution of the Ministry of Labor of the Russian Federation of 10.10.2003 No. 69.

In this case, the date of hiring, put down in column 2 of the section "Information on work" work book employee, will also be ahead of the date of the order-basis for hiring, indicated in column 4.