Publication date: 15.04.2024
active and purposeful military lawyer with more than 4 years of experience
The right to work in Ukraine is realized mainly by concluding an employment contract between the employee and the employer. At the same time, the employment contract must be distinguished from civil law contracts.
First of all, it should be noted that the conclusion, performance and termination of civil law contracts, the most common of which are subcontracting and service contracts, is regulated by civil law, and the conclusion, performance and termination of employment contracts is regulated by labor law. Norms governing another type cannot be applied to one type of contract.
What is an employment contract
According to the Code of Labor Laws of Ukraine (hereinafter referred to as the Labor Code), an employment contract is an agreement between an employee and an employer, under which the employee undertakes to perform the work specified in this agreement, and the employer undertakes to pay the employee wages and provide working conditions necessary to perform the work provided for by the labor legislation, the collective agreement and the agreement of the parties.
An employment contract is an agreement regarding the implementation and provision of a labor function. According to the employment contract, the employee is obliged to perform not some individually defined work, but work from one or more professions, specialties, positions with appropriate qualifications, a defined labor function in the company's activities. Labor activity does not stop after the completion of the specified task.
What is a civil contract
According to the Civil Code of Ukraine, a civil contract is an agreement between two or more parties aimed at establishing, changing or terminating civil rights and obligations.Its participants are the customer and the executor. It can be concluded in the form of a contract or a contract for the provision of services.
Civil - legal contracts are used, as a rule, to perform one-time specific work aimed at obtaining labor results, and in case of achieving this goal, the contract is considered fulfilled and its effect is terminated. The civil law contract should define not what the employee will do, but what he must do. According to civil law contracts, only the deadline for the completion of the task is established.
The subject of the employment contract
The subject of the employment contract is the work process, namely: the performance of work in a certain specialty, qualification, position, that is, the employee's performance of a certain labor function. According to the civil law contract, the subject is the final result, that is, the execution by the executor of the stipulated work aimed at achieving the final result. In this case, the result of the work is important, not the method of achieving it.
Characteristic features of labor relations are:
• systematic payment of wages for the labor process (and not its result); compliance with the rules of internal labor regulations;
• performing work according to the profession (position) defined by the National Classifier of Ukraine DK 003:2010 "Profession Classifier";
• the employer's obligation to provide a workplace;
• compliance with labor protection rules at the enterprise;
• work is not legally independent, takes place within a certain enterprise (legal entity) or with a natural person;
• by following the employer's instructions and orders; performance of a certain type of work (job function);
• the employment contract, as a rule, is concluded for an indefinite period;
• fulfillment of certain labor standards during the established working hours;
• establishment of special conditions of material responsibility;
• application of disciplinary measures;
• the right to guarantees, benefits, compensations, etc. established by labor legislation, the provision of which is the employer's responsibility.
Before starting work under an employment contract
Before starting work under the concluded employment contract, the employer is obliged to:
• determine the employee's workplace;
• explain to the employee his rights and responsibilities and inform the employee about working conditions, the presence of harmful and dangerous production factors at the workplace where he must work, inform about his rights to benefits and compensation for working in such conditions;
• to acquaint the employee with the rules of internal labor regulations;
• provide him with the means necessary for work;
• conduct training and briefings on occupational health and safety issues.Performance of work under a civil law contract
Signs of a relationship under a civil law contract:
• the person, in accordance with the customer's task, independently organizes the performance of the work at his own peril and risk;
• the employee is not included in the company's staff;
• no entry is made in the labor book;
• a regulatory document on employment for a certain position is not issued;
• the performer does not obey the rules of internal labor regulations;
• no benefits, compensations and guarantees established by labor legislation are provided for, except for mandatory state social insurance;
• the results of the work, as a rule, are recorded in the acts of acceptance of the completed works;
• remuneration is paid for the work performed.
The main feature that distinguishes civil-law relations from labor relations is that labor legislation regulates the process of organizing labor activities. According to the civil law contract, the process of organizing labor activity remains outside its boundaries, the purpose of the contract is to obtain a certain material result.
A citizen who performs work under a civil law contract does not obey orders and orders, but he must comply with the rules of performance of work stipulated by the contract. In certain cases, for example, when an employee comes to work under the influence of alcohol or drugs, he may be dismissed from work (Article 46 of the Labor Code). In order to prevent a citizen, who has entered into a civil law contract, from the place of execution of works or to remove him from the execution of works, such possibility must be provided for in the contract.
