How to properly hire a person to perform a specific job and protect yourself from Gostrud's fines. When hiring workers for one-time work, for example, during the harvest, the employer faces the problem of their registration. It is inefficient to enroll such employees in the company's staff. But if they are not employed, the employer faces a fine of 125 thousand. hryvnia from Gostruda. The way out of this situation is to conclude civil law agreements (GPA) with such employees.
Since under such a contract the company does not employ a person, but hires him to perform a specific job, it is not necessary to make entries in the employment record book and notify the tax office. At the same time, taxes are paid not from the minimum wage, but from the amount of remuneration under the contract.
Civil contracts should not contain signs of employment. This is working time, subordination, wages, leave, etc. The GPA must define a specific list of work and a specific result. Payment for these works should not be made monthly, but for a specific job.
Do not agree with the sanctions? Judge!
The current legislation does not specify which works can be performed under the GPA. However, when appealing to Gostrud's fines, the court will analyze the evidence and the subject of each contract in each specific situation.
One of the agricultural enterprises in the Sumy region was fined almost 2,500,000 hryvnias for undocumented workers. Gostruda did not take into account the civil law contracts of the company and noted that the relationship between the company and employees is labor. The company filed a lawsuit, and the Sumy District Administrative Court sided with the farm and overturned the fine.
In its decision of 05.12.2018, the court noted that the subject of the GPA is the repair of drinking troughs, sawing firewood, cleaning the area, hay, load and hay, that is the end result.
In GPA it is specified, what result of work the executor should transfer to the customer, the list of tasks of work, its types and so forth is defined. Therefore, the court concluded that the detainees at the GPA enterprise did not contain signs of an employment relationship.
In the Ternopil region, the company has entered into contracts for loading, unloading and deployment of grain on the current and in the pantry. However, Gostruda recognized these contracts as employment contracts and imposed a fine on the company. The Ternopil District Administrative Court with its decision of 12/20/2018 overturned Gostrud's fine. In the decision, the court noted that the company's GPA does not contain signs of employment contracts, in particular, these agreements do not specify the obligation of the executor to be present at the company during certain working hours, the obligation to comply with internal labor regulations, labor process and working hours.
Fines are not always canceled
However, the courts do not always cancel Gostrud's fines, even if there are civil contracts. In particular, the third administrative court of appeal (Dnipropetrovsk region) in its decision of 04.12.2018 took the side of Gostrud. In its decision, the court noted that the subject of the contract is the cleaning of the warehouse and field work. However, the payment made by the enterprise did not depend on the type and actual volume of work performed by it, payment was made systematically (monthly) and in a fixed amount. In addition, the contract does not specify what results the company expects from the worker, the labor process does not provide the final result. That is why the court concluded that the relationship between the parties contains signs of an employment relationship.
As we can see, the existence of a civil contract does not save Gostrud from a fine. And if this contract is registered incorrectly, then the court will not be able to appeal the fine. Therefore, it is important that the relationship with the GPA does not resemble labor, and the employee receives a REMUNERATION (not to be confused with wages).
What are the employees talking about?
It is very important that the workers hired by the company for one-time work understand the essence of civil law relations. People need to understand that they have been hired to do a specific job with a certain result and understand why they will be paid a fixed amount. They do not have a manager, but there is a customer, there is no approved schedule, and there is only the amount of work. And it is important that they confirm this information to the labor inspector during the inspection.
For example, the Kirovohrad District Administrative Court sided with Gostrud in its case and by its decision of January 23, 2019 denied the farm a claim for cancellation of the fine. FH concluded with workers contracts for performance of various works on an economy, however during check in the explanation (the letter-interrogation of the hired worker) the worker noted that he works in a farm work schedule from 8-00 till 17-00, a break for lunch from 12 -00 to 13-00, day off - Sunday, and receives a salary once a month in cash. Therefore, the court concluded that the relationship between the parties contained signs of an employment relationship, and Gostruda rightly imposed a fine.
At the same time, the Cherkasy District Administrative Court overturned Gostrud's fine with its decision of September 6, 2018. In the decision the court specified that the subject of civil law contracts are works on grain transfer by the ZM-60 remote control unit on the car. In addition, the workers provided explanations stating that they had performed work for which they had received monetary remuneration in accordance with the civil contract, and that they were not and had never been in an employment relationship with the plaintiff, the partnership had not organized their employment process. activities. Therefore, the court concluded that the relationship between workers and the company does not contain signs of labor.
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As we can see, civil law contracts are a good alternative to labor relations.
In order for Gostrud not to be recognized as a GPA employment relationship, the contract must be drawn up correctly. In particular, it is necessary to clearly define the result of work, and to pay for this result, and not monthly or weekly. The contract should not have a work schedule, the work should be performed at your own risk and during certain working hours. To avoid misunderstandings with the potential employee, he should explain the essence of the contractual relationship with the employer.
If you follow these simple rules, the risks of getting Gostrud's fine are reduced, and the fines can be successfully overturned in court.
Andrey Gevko,
lawyer, partner of the law firm BARGEN
AgroMarket newspaper, May 2019
(Number of ratings: 19 average: 4.95 of 5)
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