The general director of a company is its first person and a direct representative of interests before a wide range of people. He is vested with special powers and responsibilities. Therefore, in practice, it is important not only to choose a professional for this position, but also to properly formalize the labor relationship with him.
Due to serious differences in the competence of the general director from other employees of the company, there is a certain difference in concluding an employment contract with him. Moreover, this fact is established by law and is mandatory for use by all Russian companies. In addition, information about senior management must be reported to government authorities.
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Due to the performance of special functions, the general director also has some privileges. They must be enshrined both in the charter of the enterprise and in the employment contract. Special differences are inherent in the design of the general director - the sole founder of the company. Therefore, when opening an enterprise, it would be a good idea to use a sample employment contract with the general director.
Normative base
Federal Law No. 208 establishes the requirement that before the appointment of a general director, a meeting must be held at which a decision will be made on the selection of the applicant.
Federal Law of December 26, 1995 N 208-FZ (as amended on July 3, 2016) On Joint Stock Companies (as amended and supplemented, entered into force on January 1, 2017)
The right to choose the General Director is available to:
- the board of directors, if the company's charter provides for such authority;
- meeting of shareholders of the company.
Federal Law No. 14 establishes the requirement to elect the sole owner of an LLC as its leader.
Important to remember! When concluding an agreement with the general director, one must not allow violations not only in the text, but also in the design.
Russian law allows the general director to be an individual entrepreneur.
general information
You can often see a situation where a person registers his own company and, being its sole owner, takes over management. That is, he occupies a certain leadership position, for example, general director. But when it comes to working in your own company, many questions arise about the design. Since he is working, he must go through a certain registration procedure. And first of all, this is the conclusion of an employment agreement.
Is it necessary to conclude an employment contract with the general director? After all, if you don’t formalize it, how can you calculate wages and pay taxes? According to labor law, the question of whether a contract should be concluded should not arise. An employment contract with the director of the LLC is drawn up, even if he is its only founder.
Despite this, the debate among experts does not stop. Several years ago, Rostrud issued a document which stated that since in this situation there is no employer, an employment contract with the director, the sole founder, is not signed. This decision was supported by the Ministry of Health and Social Development of the Russian Federation in 2009. The officials justify their position by the fact that the performance of work by the boss is regulated by Chapter 43 of the Labor Code of the Russian Federation.
But the provisions of this chapter do not affect a person if he is a director and founder in one person. Disputes also concern who signs the employment contract. The employment contract with the founding director is signed by him himself for both the employee and the employer. And this does not contradict the norms of labor legislation. In civil law, it is prohibited to formalize transactions if both parties are the same person. But this rule of law does not apply to labor relations (Article 2 of the Civil Code of the Russian Federation).
Reference: many are of the opinion that the employer in such a situation is a legal entity, for example, a limited liability company.
Recruitment procedure
If the applicant for the position of General Director is not a disqualified person and meets all the requirements, registration is carried out in the following order:
- The founders of the company draw up a protocol or make a decision on appointment to a position.
- All necessary information about the candidate is checked.
- An employment contract is concluded.
- An order to take office is issued and signed.
- A regular order for admission to the organization is issued, reflecting the working conditions and remuneration.
- The Federal Tax Service is notified of the appointment of the general director.
Structure and sample of an employment contract with the general director
The law does not provide for a unified form of agreement. It is compiled arbitrarily.
It is enough to use the company’s letterhead with the inclusion of the main provisions:
- Title of the document;
- the locality where it was signed and the date of conclusion;
- interested parties: name of the legal entity, full name of its representative, grounds for representing the enterprise;
- general provisions of the contract: working conditions and the fact of transfer of powers to manage the organization;
- rights and obligations of the parties (for example, full representation of interests and signing of contracts);
- imposed liability (indicating the amount of material compensation in case of damage to the enterprise);
- conditions for early termination of the contract;
- validity period of the document (start and end);
- list of factors for termination of the contract;
- information on wages and social security (for example, opportunities for salary increases);
- final provisions on the date of entry into force of the agreement and the specifics of its amendment.
To simplify things, you can take a standard sample employment contract with the general director of an enterprise, changing it in accordance with the specifics of the company. The agreement with the general director must be signed by the interested parties indicating their details and certified with the seal of the enterprise.
Detailed contents of the agreement with the general director of the LLC
The main thing is that this agreement does not contradict current legislation.
The following information must be present:
- Validity period of the document.
- The exact address of the workplace.
- List of responsibilities of the director.
- Date and place of execution of the contract.
- Information about those authorized to sign. Indication of details from the certificate, which grants the corresponding rights.
- TIN of the company acting as the employer.
- Full name of the company, full name of the employee with whom the contract is concluded.
Before starting work, you need to additionally agree on the time when the employee can begin duties; about payment terms; regarding social insurance.
You can include other conditions that are not required.
Order of appointment
The appointment of a new employee to the position of general director of the enterprise is carried out by its founders:
- general meeting of participants;
- general meeting of shareholders;
- board of directors.
The appointment of the general director is formalized by protocol or decision. The choice of document depends on the number of participants making the decision. Typically, one act reflects information about the dismissal of one employee and the appointment of a new one to the position.
Subsequent personnel orders on hiring and dismissal are drawn up on the basis of the initial minutes or decision and signed by the founder or directors.
Federal legislation establishes the requirement for notification of the appointment of the general director of the tax authority at the location of the legal entity. The notification period is 3 days from the date of adoption of the decision (protocol) on acceptance to the position.
About responsibility
Legal entities are subject to fines consisting of two parts - one for the organization as a whole, the other for a specific manager. For example, a minimum of 10 thousand rubles is the penalty for refusing to use cash registers. For legal entities, a fine of 30 thousand rubles is provided.
Penalties are not mandatory for contracts. Sanctions are automatically applied to the director if a violation is committed.
Article 277 of the Labor Code of the Russian Federation establishes requirements for full financial liability.
Find out the specifics of hiring a CEO in this video:
https://youtu.be/vTzaWOrwv0Q
If the only founder
The situation of appointing the sole founder of an organization to the position of general director looks individual. The law does not provide for restrictions on such combinations. The owners of the enterprise may well manage it and manage its work.
The task of appointing a general director should be resolved at the stage of creating an enterprise. If the company is organized by one founder, then the fact of his appointment as head must be reflected in the decision of the sole participant.
During the registration of a company with the tax office, information about the appointed manager is entered into the Unified State Register of Legal Entities.
Employment contract with the general director of the LLC (temporary sample, without probationary period)
The General Director – the sole founder – is appointed to the position as follows:
- A decision is made to approve the founder as the general director of the created enterprise.
- Information about the executive body (director) is sent to the Federal Tax Service;
- An order to take office is issued.
- An employment contract is concluded.
Attention! By signing an agreement on behalf of the employer, an individual acts on behalf of the enterprise as its highest official. Therefore, the signature of one person is not a coincidence between the parties to the contract.
The date of immediate assumption of the position of the General Director is reflected in the order of appointment to the position. Therefore, the responsibility for its publication, as well as for drawing up an employment contract, can be assigned to the subsequently created personnel department.
Employment contract with the general director of the LLC (temporary sample, with a probationary period)
An employment contract is not concluded if the relationship is not employment
This unchanged position was taken by Rostrud (letters of Rostrud dated 03/06/2013 No. 177-6-1, dated 12/28/2006 No. 2262-6-1).
He pointed out that it is impossible to conclude an agreement with oneself, since the signing of an employment contract by the same person on behalf of the employee and on behalf of the employer is not allowed. It was also stated that the parties to the labor relationship are the employee and the employer. An employee is an individual who has entered into an employment relationship with an employer. An employer is an individual or legal entity (organization) that has entered into an employment relationship with an employee. An employment contract is an agreement between an employer and an employee, that is, a bilateral act. If one of the parties to the employment contract is absent, it cannot be concluded. Thus, labor legislation does not apply to the relations of the sole participant of the company with the company established by him. As Rostrud points out, the only participant in the company in this situation must, by his decision, assume the functions of the sole executive body - director, general director, president, etc. Management activities in this case are carried out without concluding any contract, including an employment contract.
