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Publication date: 26.04.2024
active and purposeful military lawyer with more than 4 years of experience
About registration of labor relations with security guards
SITUATION
An employee of one of the enterprises in the city of Svitlovodsk appealed to the Department of Inspection Activities in the Kirovohrad region regarding the violation of his rights in formalized labor relations. The applicant reported that he performed the work of a security guard at the enterprise in accordance with the concluded contract, whether labor or civil law, he did not know.
COMMENT
According to the results of the inspection, it was established that the enterprise violates the provisions of the Law of Ukraine dated March 15, 2022 No. 2136-IX "On the Organization of Labor Relations during Martial Law" (hereinafter - Law No. 2136), the Code of Labor Laws of Ukraine (hereinafter - Labor Code) regarding terms of concluding an employment contract.
According to the information of the Pension Fund of Ukraine, the company where the applicant worked, according to the submitted report from the State Security Service, had no data on labor or civil legal relations with him.
In the explanations, the director of the enterprise informed that the applicant is not and was not in employment with him, performing security services on the basis of a contract for the provision of services.
According to the Unified State Register of Legal Entities, Individual Entrepreneurs and Public Organizations, the main type of economic activity of the enterprise is the activity of private security services.
In accordance with the Law of Ukraine of March 2, 2015 No. 222-VIII "On Licensing of Types of Economic Activities" (hereinafter - Law No. 222), Resolution of the Cabinet of Ministers of Ukraine No. 960 of November 18, 2015, the Licensing conditions for conducting security activities (hereinafter - Licensing conditions).They provide that security guards must be part of the staff of the subject of security activity and, depending on the object being protected, meet the qualification requirements specified by the order of the Ministry of Labor of December 29, 2004 No. 336 "On approval of Issue 1 "Professions of employees who are common to all types of economic activity" of the Handbook of qualification characteristics of workers' professions". The level of compliance with qualification requirements is documented in accordance with legislation.
Clause 17 of the License Terms stipulates that able-bodied citizens of Ukraine who have reached the age of 18, have completed appropriate education or professional training, have entered into an employment contract with a subject of security activities (are part of the staff of a subject of security activities) can be security personnel.
In accordance with the Law of Ukraine dated March 22, 2012 No. 4616-VI "On Security Activities" (hereinafter - Law No. 4616), it is prohibited to involve in security measures persons who have not submitted the documents necessary for employment, or who do not meet the qualification requirements.
From the above norms, it can be seen that security activity is a type of activity that is carried out exclusively on the basis of a license issued only to a business entity (FOP or legal entity) and subject to the mandatory fulfillment of organizational, personnel and technological requirements by business entities, provided for in the License Terms, or by concluding an employment contract with an employee in oral or written form in accordance with Law No. 2136 and the Labor Code.Therefore, the possibility of providing security services by an individual under the terms of a civil law contract is not provided for by Law No. 4616, Law No. 222, and the License Terms.
Based on the results of the inspection, an order was made to prevent further detected violations, and the issue of bringing the company manager to justice is being resolved.
