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.

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.

Is it necessary to take the SZV-TD when hiring and dismissing a director - the only participant?

Information in the SZV-TD form is submitted from January 1, 2021 within the following deadlines:

no later than the next working day - after issuing an order to hire or dismiss an employee;
monthly, no later than the 15th day of the month following the reporting month - for other personnel changes (transfer, advanced training, etc.).

If there is no employment contract with the general director, then there is no need to submit a SZV-TD for him (see Letter of the Ministry of Labor dated March 24, 2020 No. 14-2/B-293).

To substantiate its position, the Ministry of Labor cites the following argument: according to Part 2 of Art. 273 of the Labor Code of the Russian Federation, labor relations do not include those that arise between an organization and its director, if the latter is at the same time the sole founder of the legal entity.

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:

Conducting a competition . This option is mandatory for state and municipal unitary enterprises.
Election at a meeting of members or the Board of Directors. Suitable for commercial organizations where there are several participants or a collegial board.
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.

Formalize labor relations for the founding general director

The norms of Chapter 43 of the Labor Code of the Russian Federation on the peculiarities of the work of managers do not apply to the head of an LLC, who is its sole founder. Including from the point of view of drawing up a written employment contract. In this situation, according to the Ministry of Finance, it is not needed. Labor relations are formalized by a written order of the founder to assume the labor function of a manager.

Labor function of a manager

The head of the organization is an employee of the organization who, in accordance with the employment contract concluded with him, performs a special labor function (part 1 of article 15, part 2 of article 57 of the Labor Code of the Russian Federation). This labor function consists of exercising management of the organization, including performing the function of its sole executive body (Article 273 of the Labor Code of the Russian Federation) to carry out actions on behalf of the organization to implement its rights and obligations arising from civil, labor, tax and other legal relations. That is, to act without a power of attorney:

in the scope of the owner’s powers to own, use and dispose of the company’s property;
in the field of rights of the copyright holder of exclusive rights to the results of intellectual activity and means of individualization equivalent to them;
in the area of the rights and obligations of the employer in labor relations with other employees of the organization, etc.

Appointment of a manager

The manager is appointed to the position (as well as dismissed), as a rule, by the general meeting of participants (shareholders). In a number of cases, if the issue of appointment or dismissal of a manager (sole executive body) is within the competence of the board of directors, the board of directors.

The founders can appoint a person from among themselves or from outside to fill this position of CEO. The employer in relation to the employee - general director is the organization represented by one of its participants (founders).

First, the corresponding decision (minutes) of the general meeting of participants or the board of directors is drawn up. Then an employment contract, usually a fixed-term one, is signed with the manager.

It includes all the mandatory and additional conditions provided for by the Labor Code of the Russian Federation when drawing up an employment contract - taking into account the peculiarities of the work of managers provided for by Chapter 43 of the Labor Code of the Russian Federation.

In an LLC, an employment contract with the manager can be signed by:

the person presiding over the general meeting of the company's participants at which the manager was elected;
a member of the company authorized by the decision of such a meeting;
Chairman of the Board of Directors (Supervisory Board);
a person authorized by a decision of the board of directors (supervisory board) of the company (Clause 1, Article 40 of Federal Law No. 14-FZ dated 02/08/1998, hereinafter referred to as Law No. 14-FZ).

On behalf of the JSC, the employment contract is signed by the chairman of the board of directors (supervisory board) or a person authorized by this board (clause 3 of article 69 of the Federal Law of December 26, 1995 No. 208-FZ).

The validity period of the employment contract with the manager is determined by the constituent documents of the organization or by agreement of the parties (Part 1 of Article 275 of the Labor Code of the Russian Federation).

Based on the decision of the authorized body and the employment contract, the head (or other authorized person from among the participants, board of directors) issues an order to take office.

An entry about the appointment is made in the manager’s work book. Column 4 makes reference to the decision of the general meeting or to the order to take office (letter of Rostrud dated September 22, 2010 No. 2894-6-1). They even issue a personal card for the elected manager, just like for other employees of the company.

If in an LLC the director is the only founder

One person has the right to establish a limited liability company (Article 11 of Law No. 14-FZ). Therefore, he has the right to unilaterally decide who will manage the company. The law does not prohibit him from assigning these responsibilities to himself.

But the norms of Chapter 43 of the Labor Code do not apply to the head of an organization (LLC), who is its sole founder (Article 273 of the Labor Code of the Russian Federation).

The main feature of this situation is that if the sole owner and manager are the same person, a paper employment contract is not drawn up, since there cannot be the same signature on both sides of the contract. It turns out to be a situation of an agreement “with oneself”. But there are no other owners who could sign it for the employer.

Therefore, in this case we are talking about the assignment of responsibilities, when the only participant in the company, by his own decision, assumes the functions of the sole executive body. This could be a director, general director, president, etc. - as you like.

The absence of a “paper” employment contract does not mean the absence of an employment relationship.

Labor relations take place both on the basis of an employment contract concluded in the prescribed manner, and on the basis of the actual admission of the employee to work with the knowledge or on behalf of the employer. This is stated in Article 16 of the Labor Code of the Russian Federation. Even if there is no employment contract in writing, it is considered concluded from the moment the employee begins to perform his job duties (Part 3 of Article 16 of the Labor Code of the Russian Federation).

The situation with the combination of the sole founder and director of the company in one person was considered by the Supreme Arbitration Court of the Russian Federation. The Determination of 06/05/2009 No. 6362/09 (hereinafter referred to as the Determination) sets out the position according to which labor relations with a person performing the functions of the sole executive body of the company as a general director, as with an employee, are formalized not by an employment contract, but by the decision of a single participant.

This position is confirmed by the courts, which expressed themselves even more bluntly. The labor relations that arise as a result of the appointment of a director to this position are characterized precisely as labor relations on the basis of an employment contract (see the resolutions of the Federal Antimonopoly Service of the North-Western District dated June 10, 2010 in case No. A21-8374/2009, the Federal Antimonopoly Service of the West Siberian District dated 06.08.2008 No. F04-4841/2008(9485-A45-41), etc.).

Payments to the manager who is the sole founder

Note that the existence of an employment relationship obliges the employer to pay wages to the employee (Article 21, 56 of the Labor Code of the Russian Federation). The condition of remuneration is a mandatory condition of the employment contract (Article 57 of the Labor Code of the Russian Federation).

As stated in the commentary letter, the absence of a concluded employment contract with the head of the organization does not mean the absence of an employment relationship. Confirmation of this statement is also contained in the Definition. Payments in favor of the head of the organization, including the sole founder (participant) of the organization, are considered as payments made within the framework of labor relations.

At the same time, it is necessary to pay wages for the work of the founding director. The fact is that the founder of a company has the right to dividends regardless of whether he manages the company or not (clause 1 of article 8, clause 2 of article 28 of Law No. 14-FZ). This means that dividends cannot be a substitute for wages. In addition, dividends can be paid once a quarter and only if there is net profit.

Of course, the director, who is the sole founder, can receive both wages and dividends.

The amount of wages, especially in the absence of an employment contract, should be established in the staffing table.

In conclusion, we would like to remind you that the salary of the director, the sole founder, is generally subject to insurance contributions. Therefore, he has the right to all types of social insurance benefits - temporary disability, maternity and child benefits - on an equal basis with all other employees (Clause 5, Article 2 of Federal Law No. 255-FZ of December 29, 2006).

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.

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:

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.
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.

Should the sole founder director be included in SZV-M?

Since May 2021, a new form and rules for filling out SZV-M information have been approved (see Resolution of the Board of the Pension Fund of the Russian Federation dated April 15, 2021 No. 103p).

The Pension Fund made it clear to all companies: the report must include all information about the insured persons who are subject to mandatory pension insurance, including directors who are the sole owner of the business.

Namely: the said resolution makes reference to Art. 7 of the Law of December 15, 2001 No. 167 “On compulsory pension insurance in the Russian Federation”, this norm contains an indication of managers - the only founders. Thus, now it will not be possible to challenge the position on the inclusion of the general director in SZV-M.

Sample SZV-M, which will be accepted by the Pension Fund for June 2021.

Form SZV-M is submitted to the Pension Fund monthly, no later than the 15th day of the month following the reporting month. If the deadline falls on a weekend or non-working holiday, then policyholders have the right to report on the next working day.

Preparation of electronic reports according to the requirements of the Pension Fund of Russia, automatic checking for errors, round-the-clock support and consultations - an online service for reporting to the Pension Fund of Russia through Online Sprinter from Taxcom.

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.

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.

Is it necessary to submit the DAM for the sole founder manager?

The director, who is the only participant in the company, belongs to the category of insured persons under compulsory social insurance (see Order of the Ministry of Social Development dated 06/08/2010 No. 428n). In case of temporary disability and in connection with maternity, it applies to employees working under an employment contract. That is, we charge insurance premiums for payments in his favor in the general manner.

Accordingly, such a manager is included in the calculation of insurance premiums (DAM). This document is sent to the Federal Tax Service quarterly, before the 30th day of the month following the reporting period.

Important: the presence or absence of payments in favor of the director does not in any way affect the obligation to submit reports. If the manager did not receive remuneration during the reporting period, a calculation with zero indicators should be submitted.

Here's what filling out the “zero” RSV looks like (see Letter of the Ministry of Finance dated August 18, 2020 No. 03-15-05/72515):

title page;
Section 1. - without attachments;
in line 001 “Payer type” - code “2” - for payers who did not actually make payments in favor of the employee in the last reporting period;
in all lines where amounts must be indicated - “0”;
subsection 3.1. — dash in line 010;
subsection 3.2. - dash in terms 120-210.