As a general rule, in order to conclude a civil contract with a foreigner, the customer of work (services) must obtain permission to attract and use foreign workers.
The customer of work (services) must notify the territorial body of the Ministry of Internal Affairs of Russia about the conclusion of a civil contract with this citizen.
The customer of works (services) has the right to attract and use foreign workers if he has permission to attract and use foreign workers, and a foreign citizen has the right to carry out labor activities if he has reached the age of 18 years, with a work permit or patent (clause 4, Article 13 of Federal Law No. 115-FZ of July 25, 2002 “On the Legal Status of Foreign Citizens in the Russian Federation” (hereinafter referred to as Law No. 115-FZ)). This rule does not apply to foreign citizens temporarily or permanently residing in the Russian Federation.
Temporarily staying foreign worker under the GPA
The procedure for concluding a GPA with a foreign citizen temporarily staying in the Russian Federation depends on the order in which he arrived on the territory of the Russian Federation (requiring a visa and in a visa-free manner). A foreigner who arrived in the Russian Federation with a visa must have a work permit. A work permit is a document that confirms the right of a foreign citizen to temporarily carry out labor activities on the territory of the Russian Federation (paragraph 16, paragraph 1, article 2 of Law No. 115-FZ).
Taking into account the above, if a foreign citizen has a work permit obtained in the prescribed manner and complies with the conditions for its application, the conclusion of a GPA with him will be legal. According to the general rule, in order to carry out labor activities in the Russian Federation, such visa-free foreigners must obtain a patent (paragraph 17, paragraph 1, article 2, paragraph 1, paragraph 4, article 13, paragraph 1, 2, paragraph 1, article 13.3 of Law No. 115 -FZ).
A patent is a document confirming the right of a foreign citizen who arrived in the Russian Federation in a manner that does not require a visa to temporarily carry out labor activities on the territory of a constituent entity of the Russian Federation (Article 2 of Law No. 115-FZ).
A foreign worker applies for a patent to the migration department of the territorial body of the Ministry of Internal Affairs of Russia at the regional level in person or through an organization authorized by a constituent entity of the Russian Federation (paragraph 1, clause 2, article 13.3 of Law No. 115-FZ).
If a foreign worker has a patent obtained in the prescribed manner, applied in accordance with the legislation of the Russian Federation, the conclusion of a GPA with the foreign worker will be legal.
In general, a work permit/patent is not required for foreign citizens listed in paragraphs. 1 - 12 p. 4 tbsp. 13 of Law No. 115-FZ (clause 4 of Article 13 of Law No. 115-FZ).
The information specified in the permit must correspond to the information contained in the identity document of the foreign citizen. The labor activity of the attracted foreign worker must correspond to the profession (specialty, position, type of work activity) specified in the work permit / patent, and be carried out within the constituent entity of the Russian Federation where such a permit was issued.
IMPORTANT! If the regulatory authorities identify inconsistencies in the information in the documents, the customer of the work or services may be held liable under Part 1, 4 of Art. 18.15 Code of Administrative Offenses of the Russian Federation.
How to correctly draw up a civil contract with a foreigner
A civil contract, as well as an employment contract, must reflect the following points:
| Employer information | The full name of the organization that enters into the contract is indicated, indicating the last name, first name and patronymic of the head of the organization, as well as registration data |
| Employee information | Last name, first name and patronymic of the foreign citizen, identification document details |
| Subject of the agreement | This paragraph specifies the work that the employee must perform and for how long. |
| Working condition | The main workplace and daily routine are prescribed |
| Salary | The amount of remuneration for the work performed, as well as the calculation procedure, is indicated. |
| Contract term | The start date of the contract and the end date of the contract must be indicated. |
| Details of the parties | This paragraph specifies the legal address of the employer and the employee’s passport details, as well as his place of registration. |
The agreement is drawn up in two copies and signed by both parties.
When concluding a GPC agreement with a foreign citizen, you need to take into account the fact that he will not bear either financial or disciplinary liability, and will not be subject to internal regulations. In this case, the foreign citizen does not have the right to disability payments and reimbursement of travel expenses.
Contents of the GAP on the performance of work (provision of services)
Contractual relations with an individual when performing work are regulated by Ch. 37 “Contract” of the Civil Code of the Russian Federation. Under such an agreement, an individual (contractor) is obliged to perform certain work on the customer’s instructions and deliver the result to the customer, and the customer undertakes to accept the result of the work and pay for it (Clause 1, Article 702 of the Civil Code of the Russian Federation).
When concluding a contract with an individual, it is important to remember the essential terms of such an agreement (Clause 1, Article 432, Articles 702, 708 of the Civil Code of the Russian Federation):
- subject of the contract (content, scope of work performed and their result);
- initial and final deadlines for the work.
By the way, the price of work under a work contract is not an essential condition of the contract in the general case (clause 3 of Article 424, Article 709 of the Civil Code of the Russian Federation).
And the provision of services under the GPA is carried out in accordance with the norms of Chapter. 39 “Paid provision of services” of the Civil Code of the Russian Federation. In accordance with such an agreement, the contractor undertakes, on the instructions of the customer, to provide services (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services (clause 1 of Article 779 of the Civil Code of the Russian Federation). Contracts for the provision of paid services include contracts for the provision of communication services, medical, veterinary, auditing, consulting, information services, training services, tourist services and others (clause 2 of Article 779 of the Civil Code of the Russian Federation). At the same time, an essential condition for any contract for the provision of services for a fee is the subject of the contract (the type and scope of actions or activities of the performer). Other conditions may be significant if they are recognized as such in accordance with legal requirements.
We recommend including the following in the content of the GPA with a foreign citizen on the performance of work/provision of services:
- name and details of the parties to the contract - the customer and the performer (contractor);
- subject of the contract: scope of work or provision of services, terms and conditions of work, etc.;
- the amount of remuneration or the procedure for its calculation;
- rights, duties and responsibilities of the customer and the performer (contractor);
- dispute resolution regulations;
- grounds for termination of the contract, etc.
Documents required for drawing up a GPC agreement with foreigners
A civil contract is a written agreement on the provision of services or performance of work; in this case, this agreement is signed with a citizen of another country.
The need for this document appears to formalize the labor relationship so that the Migration Service does not have any claims against the employer.
When using the labor of foreigners, one should take into account the status of their stay in Russia, since in different cases a different package of papers is required from a given citizen.
For example, if this is a foreigner temporarily staying in the Russian Federation, then it is necessary:
- Identification;
- Migration card for citizens of neighboring countries or visa for others;
- Work patent;
- Diploma;
- Qualification papers, if necessary.
Important: the employer must also have permission to employ certain categories of non-residents of the country.
For example, they do not need to have a patent, but they do need pension insurance.
To enter into an agreement with a foreigner you need to:
- Prepare a package of documents;
- Obtain permission to employ a foreigner and a patent to perform work;
- Negotiate all the details of the contract;
- Enter data into the agreement;
- If necessary, draw up an additional agreement;
- Sign;
- Notify internal affairs authorities within 3 days.
The document must be signed by both parties indicating the details.
If a foreign citizen is hired by an enterprise, the document is registered in accordance with the rules for maintaining and recording documents and filed in a separate file.
Legal entities, individuals and citizens of foreign countries registered in Russia as individual entrepreneurs can hire foreigners for available vacancies.
Procedure
The employer’s algorithm of actions when concluding an employment contract with a foreigner depends on the latter’s status in Russia. Without unnecessary actions, an employer can hire a foreign citizen who has a residence permit or permanent residence permit.
Everything you need to formalize bilateral relations:
- Accept the package of documents in the same set as a Russian would submit. Additionally, evidence of a temporary/permanent residence permit must be provided (Article 327.3 of the Labor Code of the Russian Federation);
- Check the current terms of residence permit or permanent residence.
The employer will face additional actions when hiring a temporary visitor on a visa.
From the very beginning, the employer's action plan looks like this:
- Contact the employment service, where within a month the center’s employees will look for Russian citizens for the requested vacancy. If a candidate is not proposed, the employer boldly goes to the local unit of the Main Directorate for Migration of the Ministry of Internal Affairs;
- Applying to the migration department of the Ministry of Internal Affairs to obtain permission to hire a foreign resident to work in your organization;
- Registration of a work permit for a directly hired foreigner. This is mainly done by the employer in the local migration department;
- Issuing an invitation to a future employee located abroad;
- Upon arrival in a subject of the Russian Federation, a potential employee is registered with the migration authorities;
- The TD is concluded;
- The territorial body of the Main Directorate for Migration Affairs of the Ministry of Internal Affairs is notified about the hiring of a foreigner.
The employer sends an extract from the Unified State Register of Legal Entities (USRIP) and other documentation to the organization to obtain accreditation from the Ministry of Internal Affairs. Next, an application for permission is submitted on the form of the Main Directorate for Migration Affairs of the Ministry of Internal Affairs, and a state fee of 10,000 rubles is paid. for each person hired.
Having received all the permits, the employer applies to the Main Department of Migration Affairs of the Ministry of Internal Affairs for an invitation, according to which the future employee will apply for a work visa.
Russian legislation does not establish a special form of agreement with a foreigner. The main content of the document is the same as when employing a Russian citizen, indicating all the data, in accordance with Art. 57 Labor Code of the Russian Federation:
- Full name of the employee;
- All employer details;
- Payment;
- Mode;
- Place of work, etc.
The agreement is written in Russian, but at the request of the other party it can be translated into the employee’s native language and notarized.
Below are examples of different contracts.
Registration of labor relations with a candidate from abroad who has a residence permit is no different from a standard contract when hiring a Russian. The additional clause only indicates the number, validity period and other details of the residence permit.
You can also take as a basis a standard TD concluded with a domestic employee, entering passport data and permanent residence address into it.
When drawing up an agreement with a citizen of another country who is temporarily staying in a constituent entity of the Russian Federation without a visa with a patent, all information about the patent is entered into the document, and the details of the medical policy or the contract concluded by the employer with the medical institution regarding the employee are required (Article 327.2 of the Labor Code of the Russian Federation).
We invite you to familiarize yourself with the Fixed-term employment contract - 2020 - SKB Kontur
It is issued based on the status of a foreigner in Russia. The beginning and end of the employee’s work period must be indicated and an additional justification for the urgency of the contract must be included. When choosing a basis, you should rely on the points included in Article 59 of the Labor Code of the Russian Federation.
Terms of agreement
The subject is what the parties agree on: what exactly the contractor must do and for what result or service the customer must pay.
The GPC agreement specifies the cost of the contractor’s work. They also describe how the procedure for handing over and accepting a work or service takes place and what consequences await the contractor if the work or service turns out to be of poor quality. You can agree on an advance payment or staged payment and indicate in the contract the amounts for each stage. If the cost of work is not specified in the contract, the customer pays the average market price for similar work or service.
In the GPC agreement, you can specify the place of work of the contractor: the accountant performs tasks in the customer’s office, and the lawyer provides consultations only in his office. It is also important to indicate whether the contractor can entrust the work to third parties or must complete it himself.
