Individual contracts and agreements (concept, functions, types, difference from normative contracts and agreements).

The essence of an individual employment contract

Such a contract must be concluded in writing , must indicate responsibilities, provide for the rights of the employee and must contain a clause on the responsibility of both parties in case of its violation.
An individual employment contract can be for both a definite and indefinite period of validity, but not longer than five years.

In addition to the mandatory conditions that must be included in this document, the parties can agree and include additional, specifying conditions, obligations, rights and benefits that are not provided for by current legislation, but do not violate it.

Based on the provisions of Art. Art. 7,8,9, “Labor Law in the Republic of Kazakhstan”, the definition of an individual employment contract can be given as follows - it is a bilateral agreement between an employee and an employer, concluded in writing, according to which the employee undertakes to perform work in a certain specialty, qualification or position with the execution of acts the employer, and the employer undertakes to promptly and in full pay the employee wages and other monetary payments provided for by law and agreement of the parties, and to ensure working conditions provided for by labor legislation and the collective agreement.

An individual employment contract has the following features:

a) the employee undertakes to perform work related to a certain type of activity, a certain labor function;

b) the employee’s personal labor participation in the intended activities of the employer is necessary;

c) the employee must obey the employer’s acts, in particular, the internal labor regulations;

d) the employer is obliged to pay the employee wages according to pre-established standards, in cash, not lower than the minimum amount established by law.

An individual employment contract may contain benefits and benefits for individual employees.

The content of any contract refers to its terms and conditions. They define the rights and obligations of the parties.

There are two groups of conditions of an employment contract: necessary (mandatory).

Necessary conditions are those in the absence of which an employment contract cannot exist, and therefore, a real employment relationship cannot arise. These include the following conditions: 1) about the place of work (enterprise, organization, etc., located on the day of concluding the contract in a certain area); 2) about the employee’s labor function that the employee will perform, i.e. specialties, qualifications, positions; 3) on the amount of the employee’s salary and labor protection; 4) on the duration of the individual employment contract; 5) on the date of commencement of work duties; 6) on the characteristics of working conditions, guarantees and compensation to employees for hard physical work or work in harmful or dangerous working conditions; 7) about working hours and rest periods; about the rights and obligations of the parties; 9) on the procedure for changing, terminating and prolonging an individual employment contract; 10) on the procedure for paying compensation and providing guarantees; 11) on the responsibility of the parties.

The labor function (type of work) is determined by the parties to the contract establishing the profession, specialty, qualifications for the worker or position for the employee in which he will work.

A profession is a type of work activity determined by the nature and purpose of work functions, for example, builder, doctor, teacher, lawyer, etc.

A specialty is a more detailed division of a profession, one of its varieties. The specialty depends on the nature of the skills and knowledge in the given profession. For example: doctor - therapist, surgeon, ophthalmologist; builder - carpenter, mason, painter, etc.

Qualification is the degree and type of professional training, i.e. the level of training, experience, knowledge in a given specialty, determined for workers by the categories of work that they can perform (for example, a mechanic of the 3rd or 5th category), and for employees - by special education, experience, position, rank.

A necessary condition for an individual employment contract is an agreement on the beginning of the working time (month, day, year) and the duration of the contract. This issue is resolved by agreement between the employer and the employee.

The legislation provides for the conclusion of an individual employment contract for:

1) indefinite period;

2) a certain period;

3) the time for performing certain work or for the time of replacing a temporarily absent employee.

Remuneration is an essential condition of an individual employment contract. The state has determined the legal basis for the social protection of workers of the republic in the field of wages and equality of all forms of ownership, as well as guarantees from the state for wages not lower than the established minimum amount.

Additional conditions may be very varied, but they should not contradict current legislation. These include, for example, establishing a probationary period.

What are the main points that should be in an employment contract?

Carefully review the sample document provided to you for signature. An individual employment contract must include the following clauses :

full details of the parties entering into the contract, namely the exact name of the company, the address of the legal entity or individual who is the employer, the date and number of registration of the constituent documents of the enterprise, passport details, SIC, TRN;
labor responsibilities and functions expected for this profession and position;
required level of qualification;
contract start date;
end date if the employment contract is fixed-term;
working conditions and labor protection;
operating mode;
information about the conditions of remuneration of the employee;
provision of guarantees for compensation stipulated by the contract for hard or harmful work;
rights and obligations of the parties entering into an agreement;
procedure for prolongation, modification or termination of the contract.

Additional conditions included in the contract

Additional terms, which are sometimes included in the contract, are information that does not directly relate to the procedure and related aspects. Such conditions may include data on the provision of housing to employees, an indication of additional payments due to certain employees, etc.

In this case, an important nuance is the fact that all additional conditions should never worsen the employee’s current situation or violate his legal rights.

Other important conditions that should also be specified in the contract include the following:

complete information about the employee - his full name, residential address, as well as about the employer - his full name, residential address, the grounds for his appropriate authority;
the place where the employment contract was signed, as well as the date of its signing.

The last stage of the contract is always the signing of both parties. Without this step, the document will not have full legal force.

What additional clauses may an individual employment contract contain?

Also, by mutual agreement of the parties, the concluded employment contract may include the following additional clauses :

the possibility of combining professions and specialties;
additional training or retraining in a related specialty;
mandatory regular improvement of the employee’s qualifications;
the right to additional leave and its duration;
additional benefits beyond those provided for by the legislation of the country;
agreement on non-standard working hours;
a certain probationary period.

It is important to remember that the employer does not have the right to indicate in the sample employment contract grounds for disciplinary action or dismissal of an employee that are not provided for by the current legislation of the country. The same applies to full financial liability.

Rights and responsibilities of employees that cannot be neglected

The Labor Code of the Russian Federation provides the text of the mandatory duties of employees, the level of which cannot be reduced under any working conditions and employment conditions. It also lists the rights of employees, which are guaranteed unconditionally. Such rights and responsibilities are called fundamental . They cannot be reduced by the employer - neither unilaterally, nor even by mutual consent, since they are strictly declared by law, and the direct responsibility of the employer is to ensure them. Neglect of this rule of law is fraught with liability.

Main responsibilities of hired personnel

As part of his individual employment contract, the employee is obliged to comply with the following obligations.

The labor functions assigned by the contract to the hired employee are subject to strict performance to the extent specified in the contract.
The internal regulations adopted by the local act of the enterprise become the norm for the employee, which he is obliged to adhere to.
Any employee is subject to the requirements of labor discipline.
Labor safety and protection, expressed in the rules adopted by the organization, is also a strict guide to compliance.
In the process of work, the employee must achieve compliance with accepted labor standards.
The property fund of the enterprise, material assets belonging to the employer or accepted by him for safekeeping from other persons, require careful treatment and safety on the part of the staff.
If circumstances arise that may threaten the life, health or safety of property of personnel, the employer or third parties located at the enterprise, the employee’s duty is to inform his immediate supervisor about this as soon as possible.
Recognize the significance of the concept of “trade secret” and, in general, any information data related to the work:
do not use information about the company for personal purposes and do not transfer it without the consent of the employer;
if cooperation is terminated, all information media must be returned if they contain trade secrets, or such information must be destroyed in front of the employer.

NOTE! These obligations, given in the Labor Code in a general form, are specified or extended in specific cooperation agreements, additional agreements thereto, regulations, and instructions.

Legislative regulation

All labor relations are subject to the jurisdiction of the Labor Code of the Russian Federation. The rights and obligations of the employer, as a party to labor relations, include the materials of Art.

22. The text of the article contains a list of the employer’s powers, which is very convenient for use in practice.

And in case of violation of rights or failure to fulfill prescribed obligations, it is easy to trace the legislative basis for protecting your interests.

IMPORTANT! The list is quite complete, but not exhaustive; the article explains within the framework of which the employer’s responsibilities arise and how his rights are limited.

Responsibility of the parties

Various situations may occur in the course of business activities. Some of them happen due to the fault of the employee, others are the fault of the employer, and others occur as a result of force majeure events. Both parties must understand that misconduct may result in a degree of liability. In some situations, the financial liability of the parties to the employment contract is sufficient, while others will require the intervention of law enforcement authorities.

An employee can get away with a fine, reprimand or, finally, dismissal for the following violations:

violation of labor regulations, discipline, chronic tardiness and absenteeism;
violation of safety and fire safety regulations without causing harm to the health and property of other people;
failure to perform or improper performance of one's direct job duties;
attending work while under the influence of alcohol or drugs.

The following list presents situations in which authorities and courts are involved:

theft, theft of organization property;
damage to property;
Negligence in the workplace resulting in harm to the health of others.

The employer, in turn, is also responsible to the employee: for the timely payment of wages, compliance with labor standards, ensuring safety, changing the employment contract by a party without agreement and other issues, depending on the specifics of the work. In order to hold the employer accountable, the employee must contact the labor protection inspectorate, trade union or arbitration court.

Responsibilities of the employer

The employer's responsibilities can be divided into groups depending on to whom these obligations arise.

What is the employer obliged to do as a subject of legal relations?

As a party to labor law, the employer must comply with and fulfill the following obligations:

Strictly follow the labor laws currently in force in the country.
Comply with the standards prescribed in various regulatory documents on labor legislation:
local documents;
federal laws, regional and municipal regulations;
collective agreements;
individual employment contracts;
additional agreements.

Responsibilities of the employer to state regulatory authorities

These responsibilities cannot be attributed to those that arise directly before employees, however, their compliance is aimed at organizing favorable work for hired personnel. So, the employer, in relation to management and control bodies, is obliged to comply with all instructions issued by the federal executive authorities exercising state supervision and control over the proper implementation of the norms of the Labor Code of the Russian Federation.

Responsibilities of an employer to its employees

By hiring employees, the employer takes on a fairly large number of obligations. There are many of them for the reason that they must guarantee respect for the rights of employees, which are also enshrined in the Labor Code of the Russian Federation (Article 21). They can be reduced to several groups, differing in the principle of actions taken:

responsibilities related to compliance with Labor Code standards in relation to employees;
responsibilities related to the organization, protection and remuneration of labor;
responsibilities regulating the preparation of working documentation;
Responsibilities for providing work with everything necessary.

Let's consider some of the obligations of the person providing the work, listed in the corresponding list from Art. 22 Labor Code of the Russian Federation.

The employer must provide the hired employees with the work specified in the agreements.
By providing the opportunity to work, the employer is obliged to provide a workplace, equipment, materials, raw materials, special documentation, tools and other factors that will be necessary for full-fledged activities within the framework of the employment agreement.
The organized conditions and principles of compliance with labor safety must meet the requirements established in labor legislation for this industry.
Remuneration for work of equal value should be equal.
Differences in pay must be determined by objective factors provided for by the Labor Code of the Russian Federation: qualifications, length of service of the employee, level of job responsibilities, their number, etc.
Payment of remuneration for labor must be made within the terms established by the collective agreement or individual contracts, if they do not contradict the requirements of the Labor Code of the Russian Federation.
Employees must be provided with rest as a break for meals, days off in accordance with regulations, annual leave, etc.
For categories of workers provided for by law, a special labor regime must be provided: for example, reduced working hours, light work, etc.
Local regulations adopted at the enterprise must be brought to the attention of personnel, which is confirmed by the personal signature of each employee confirming familiarization with them.
The employee must be registered in accordance with the requirements of the law, therefore the employer’s responsibility is to conclude an employment contract with him.
The conclusion of a collective agreement and the conduct of collective bargaining also lies on the shoulders of the employer.
If violations of labor organization and safety are identified, or the employee has reported such violations, the employer must consider these problems and take the necessary measures to eliminate them.
If an employee is harmed due to the fault of the employer, the latter is obligated to compensate for treatment, as well as compensation for moral damage (within the scope of the Labor Code of the Russian Federation).
An employer must provide social insurance for all its employees.

This is important to know: Employment contract for individual entrepreneurs

NOTE! Failure to comply with its obligations for the employer is fraught with administrative punishment - a fine. Penalties are provided for by the Labor Code of the Russian Federation, as well as the Tax Code and sometimes the Civil Code of the Russian Federation.

Expert opinion

Lebedev Sergey Fedorovich

Practitioner lawyer with 7 years of experience. Specialization: civil law. Extensive experience in defense in court.

The most serious violations of their duties may deprive the employer of the right to operate and occupy certain positions for a given period.