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Publication date: 24.04.2024
Legal opinion «Paid certificatePaid or free "labor certificate" for a former employee enterprises, institutions, organizations»
Providing information in written form (certificate, archival certificate, etc.) about work in an institution (another business entity) is not a service.
The current Civil Code of Ukraine (hereinafter - the Civil Code) defines services as an independent object of civil rights (Article 177 of the Civil Code of Ukraine), although unlike other objects (for example, things - Article 179 of the Civil Code of Ukraine, securities - Article 194 of the Civil Code, Article 200 of the Civil Code), does not contain their legal definition. There is no normative definition of services in Chapter 63 of the Civil Code "Services. Terms". Despite the fact that the legislator uses the concept of "services" not only in the Central Committee, but also in a whole series of both legislative and subordinate regulatory legal acts, none of them contains their single definition.
In accordance with Article 901 of the Civil Code, under a contract for the provision of services, one party (the executor) undertakes to provide a service that is consumed in the process of performing a certain action or carrying out a certain activity, at the request of the other party (the customer), and the customer undertakes to pay the executor for the specified service, unless otherwise stipulated by the contract. So, the specified article defines a service, or rather, the subject of a contract for the provision of services, using the categories "action" or "activity" (to provide a service means "to perform an action", "to carry out an activity").That is, a service is a type of good that serves as a means of satisfying needs due to the performance of activities (by performing actions) by one subject, the useful qualities of which contain the subjective interest of another subject, and for which the latter has the right to claim.
Resolution No. 796 of the Cabinet of Ministers of Ukraine dated August 27, 2010 "On approval of the list of paid services that can be provided by educational institutions, other institutions and institutions of the education system belonging to the state and communal form of ownership" approved the list of paid services that can be provided by educational institutions, other institutions and institutions of the education system belonging to the state and communal forms of ownership.
In the "Other services" section there is a subsection. 4 p. 8, which provides for the possibility of providing polygraphic services (editing, translation of scientific, reference, technical, educational, educational and methodological literature, artistic literature, development of polygraphic design); computer typing services, typesetting of texts; advertising services; implementation of own printed products, including informational, advertising and letterhead (except for the publication and sale of educational literature, methodical, scientific-methodical, scientific, scientific-technical publications, printed mass media (newspapers, magazines, almanacs, etc.); publication and placement on websites of banners and other advertising products in electronic form. Also sub-section 4-1) of clause 8 provides for printing, copying, lamination, recording of information on media.
The provision of a printing service is a separate type of activity, the provision of which must be accompanied by the addition of the corresponding KVED (Class 18.13 Production of printing forms and provision of other printing services).
Legal analysis of the situation The document, on the basis of which the cost of the certificate is calculated, namely "Calculation of the cost of preparing the certificate (services of computer typing, turning over texts, printing, copying, scanning), approved by the rector in 2023 (hereinafter - Calculation), compiled based on the sum of such indicators, such as: payment of workers' labor, payroll, purchase of supplies and materials, payment of services and other expenses, payment of utilities and energy carriers, capital expenditures. The specified factors are inherent in the usual work of the employee who issues the certificate. For this, he receives a salary, and the employer provides wages and everything else specified in the Calculation.
It is not possible to indicate in the Calculation that the fee is charged for "printing services" because, as mentioned above, these are not services, firstly, and in the case of the assumption that this is a service, it is not a printing service, secondly.
In accordance with Art. 49 of the Labor Code The owner or the body authorized by him is obliged to issue to the employee, at his request, a certificate about his work at this enterprise, indicating the specialty, qualification, position, working hours and salary.
Lawyer's request - from the cited article, it is clear that regardless of whether a person is working at the time of applying for a work certificate or has worked in the past (an odious "archive" certificate), an educational institution, like any other economic entity, is obliged to issue such information.
Issuance of documents confirming the fact of work is not a service of the business entity, but its duty.
In accordance with the Order of the Ministry of Justice of Ukraine dated 12.04.2012 No. 578/5, the enterprise is entrusted with the obligation to store archival documents that can be used to confirm the legal rights of citizens, in particular for the calculation of pensions, various types of material assistance and compensation, other payments and benefits - for a period of 75 years, and therefore, the employee can apply to the enterprise with a request to issue a certificate of employment and salary during the specified period.
Since the Labor Code does not specify a deadline for issuing a work certificate, you should be guided by Art. 20 of the Law of Ukraine "On Appeals of Citizens".Yes, appeals are considered and resolved within a period of no more than 1 month from the day of their receipt, and those that do not require additional study - immediately, but no later than 15 days from the day of their receipt.
In accordance with Art. 21 of the Law of Ukraine "On Appeals of Citizens", state authorities, local self-government bodies, enterprises, institutions, organizations regardless of the form of ownership, associations of citizens, officials consider appeals from citizens without charging fees.
Lawyer's opinion there is an explanation of the specialist of the Eastern Interregional Department of the State Service of Ukraine on Labor Issues regarding the legality of the manager's refusal to provide certificates of work experience at the enterprise and the amount of wages upon a verbal request. The explanation was provided by labor inspector Yana Kovalova on 23.11.2022, which is as follows: "According to Art. 49 of the Labor Code of Ukraine (hereinafter - the Labor Code of Ukraine), the owner or a body authorized by him is obliged to issue to the employee, at his request, a certificate about his work at this enterprise, institution, organization, indicating the specialty, qualification, position, working hours and salary amount pay The Labor Code of Ukraine does not specify a deadline for issuing a certificate, so you should be guided by Art. 20 of the Law "On appeals by citizens". Yes, appeals are considered and resolved within a period of no more than 1 month from the day of their receipt, and those that do not require additional study - immediately, but no later than 15 days from the day of their receipt.If it is impossible to resolve the issues raised in the appeal within a month, the head of the relevant body, enterprise, institution, organization or his deputy shall set the necessary deadline for its consideration, which shall be notified to the person who submitted the appeal. At the same time, the total term for solving the issues raised in the appeal cannot exceed 45 days. At the well-founded written request of a citizen, the review period may be shortened from the period established by this article. Appeals from citizens who have benefits established by law are considered on a priority basis. Bodies of state power, local self-government, enterprises, institutions, organizations regardless of the form of ownership, associations of citizens, officials consider appeals from citizens without charging fees. Taking into account the above, in order to obtain certificates about the length of service and salary, it is necessary to contact the company with a written application."
Analysis of the situation by a lawyer in addition, if the enterprise does not provide a certificate of employment and salary, the citizen has the right to apply to the relevant supervisory bodies (State Labor), law enforcement agencies (with appropriate consequences of response), the court.
A question regarding the provision of a "paid service" may trigger an application to the tax inspectorate.Such a statement may serve as a basis for a tax inspection to conduct a chamber audit.
Special attention should be paid to the systematic receipt of money by the university for the issuance of "archival certificates" to an account not intended for
Receipt of funds by a non-profit institution for services that do not belong to the list of paid services according to the Decree of the CMU is the receipt of profit, which is the basis for losing the signs of non-profitability.
The implementation of economic activity aimed at obtaining profit is classified as entrepreneurship (Article 42 of the Civil Code of Ukraine) and does not correspond to the essence of the concept of "non-commercial activity" of non-profit institutions. Thus, a non-profit organization that carries out economic activity on a commercial basis acquires the character of entrepreneurial activity and the provisions of the Civil Code of Ukraine and other laws regulating entrepreneurship are applied to it. Such an organization does not fall under the definition of a non-profit organization and is subject to exclusion from the Register of non-profit institutions and organizations.
Specialists of the State Financial Inspection summarized violations of the formation and use of own revenues of budget institutions. Attention is also devoted to the question of Enrollment in the special fund of the estimate of incomes that do not belong to the specified fund. The consultation states the following.
"According to Art. 2 BKU own revenues of budgetary institutions are funds received in accordance with the established procedure by budgetary institutions as fees for the provision of services, performance of works, grants, gifts and charitable contributions, as well as funds from the sale of products or property and other activities in the prescribed manner.Types of income to the special budget fund are clearly regulated. They are listed in Clause 4 of Art. 13 of the BKU, which was already mentioned earlier.
In the case of receipt of funds to the account of a budget institution, which are not provided for in the relevant list of paid services allowed by this institution, such funds must be transferred to the revenues of the budget from which the institution is maintained, according to the budget income classification code 24060300 "Other receipts" . The State Treasury Service drew attention to this in letter No. 2970.
Analysis of the situation by a lawyer. Providing information to a former employee about work in the institution in the past period with the provision of a certificate (archival certificate) is the institution's obligation and is free of charge.
Receiving a fee for providing the specified information, for which any form and justification (calculations, calculations, etc.) is provided, is illegal and may have consequences in the form of deprivation of the non-profit status and provoke inspections, the result of which will be the application of financial and economic sanctions.
