Publication date: 15.05.2024
active and purposeful military lawyer with more than 4 years of experience
Civil contract with a doctor: what is the danger
QUESTION
The employer's representative addressed the labor inspector with the following question: Is it possible to enter into a civil law contract with a therapist (profession code 2221.2 according to the Classifier of Professions DK 003:2010). The reason: there is an acute shortage of specialists with the necessary qualifications, the doctor has to perform part-time work. The employer incurs significant additional costs for paying overtime hours.
According to the employer, since the legislation does not prohibit legal entities from entering into civil law contracts with their employees, concluding a service contract with a doctor could be a real solution, in particular, the employee could work under such a contract without vacation.
When asked by the labor inspector how exactly the doctor's work will be organized in case of concluding a civil law contract, the employer's representative said that, as before, the doctor will work at the workplace designated by the employer during the hours set for him and will perform work according to his position (profession) using medical instruments provided by the company. How to properly document such relations.
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ANSWER
With the clarifications of the state labor inspector that the situation described by her is an attempt to hide labor relations by concluding a contract of a civil law nature, the consequence of which may be the restriction of the labor rights of the employee and the onset of negative consequences for the employer himself, the employer's representative did not agree and asked to provide more reasoned answer.In order to convince and answer the request, the labor inspector gave specific examples from judicial practice for the years 2018-2022.
Examples from court practice
Example 1
A CPC contract was concluded with a medical nurse to conduct pre-flight and post-flight medical examinations of drivers.
State Labor: non-registration of labor relations, imposed a fine in the amount of 30 times the minimum salary (the violation was detected before February 2, 2020).
Arguments: the scope of work is not defined, the work was carried out at a specific time determined by the company, a fixed amount was paid monthly (regardless of the number of medical examinations).
The court's conclusion: a fine in the amount of 30 minimum wages was imposed lawfully (ruling of the Sixth Court of Appeal dated March 20, 2019 in case No. 620/3953/18).
Example 2 In the dental center, they performed the duties of a nurse under the contract of the Central Hospital.
State Labor: non-registration of labor relations, imposed a fine in the amount of 30 times the minimum salary (the violation was detected before February 2, 2020).
Arguments: In accordance with the concluded contract, the dental center provides the necessary means and equipment to perform the medical duties assigned to the nurse and organizes and coordinates her work, must equip the workplace in accordance with the requirements, provide the necessary equipment, work clothes.
Court of first instance: a fine in the amount of 30 minimum wages was imposed lawfully (decision of the Lviv District Administrative Court dated May 14, 2020 in case No. 380/1563/20).
Appellate instance: the decision of the first instance was annulled and adopted in favor of the dental center (decision of the Eighth Administrative Court of Appeal dated November 4, 2020 in case No. 380/1563/20).
The cassation instance came to the following conclusion: the court of first instance made a judgment with the correct application of the norms of substantive law and in compliance with the norms of procedural law, while the court of appeal incorrectly applied the norms of substantive law, in particular, Articles 21 and 24 of the Criminal Code, not taking into account the conclusions of the Supreme Court regarding the application of the rules of law in similar legal relations, in particular, in the decision of July 4, 2018 in case No. 820/1432/17, and the court decision of the court of first instance, which was in accordance with the law, was canceled (the decision of the Supreme Court of March 30, 2021 in case No. 380/1563 /20).Example 3
A CPC contract was concluded with an anesthesiologist (if there is a vacant position of an anesthesiologist).
State Labor: eliminate the detected violation regarding the failure to formalize employment relations within the prescribed period.
Arguments: In accordance with the signed contract of the CPC:
• the subject of the contract is the performance of work in the department of anesthesiology and intensive care as an anesthesiologist;
• defined job duties of a doctor with reference to labor legislation and rules of internal labor regulations;
• for the work performed, the customer pays the executor remuneration for the work performed and actually worked time (there are no specific amounts for a certain amount of work in the contract);
• payment is made according to the list for the payment of wages, the payment of wages is made monthly.
All of the above indicates the presence of signs of an employment contract.
Court decision: in satisfaction of the administrative claim of the Yakymivska Central District Hospital (72503, Zaporizhia Region, Yakymivka Township, Tsentralna St., Building 30, EDRPOU code 01993032) to the Main Department of State Labor in the Zaporizhia Region (69032, Zaporizhzhia City, Severny St. highway, 25, EDRPOU code 39833546) on recognition as illegal and cancellation of the order, - to refuse completely. (decision of the Zaporizhia Administrative District Court dated 14.01.2019 in case No. 0840/3208/18 the decision of the Zaporizhzhya Administrative District Court dated January 14, 2019 in case No. 0840/3208/18).
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Example 4
As established by the court, the labor inspector discovered and recorded during the inspection visit that in the period from October 3 to December 30, 2018, civil law agreements were concluded with employees (a total of 24 agreements):
• with PERSON_7 an ophthalmologist (CPU No. 13/1 dated October 3, 2018 for the period from October 3, 2018 to December 27, 2018);
• with PERSON_8 an ophthalmologist (CPU No. 13/2 dated October 3, 2018 for the period from October 3, 2018 to December 27, 2018);
• with PERSON_9 a gastroenterologist (CPU No. 15/3 dated October 3, 2018 for the period from October 3, 2018 to December 27, 2018);
• with PERSON_10 an endocrinologist (CPU No. 13/4 dated October 3, 2018 for the period from October 3, 2018 to December 27, 2018);
• with PERSON_11 an ophthalmologist (CPU No. 15/1 dated October 9, 2018 for the period from October 9, 2018 to December 27, 2018);
• with PERSON_12 an ophthalmologist (CPU No. 15/4 dated October 9, 2018 for the period from October 9, 2018 to December 27, 2018);
• with PERSON_24, a gynecologist (CPU No. 15/34 dated October 9, 2018 for the period from October 9, 2018 to December 27, 2018) and with other medical professionals.
The subject of the concluded contracts was the provision of medical services, that is, the nature and scope of work correspond to the labor function, which involves the performance of work in the professions of "doctor" and "nurse", defined by the profession classifier DK 003:2010.In addition, the act states that the payroll information for January 2019 for employees (a total of 19 self-employed persons): indicates the position, number of days worked, tariff rates, deductions from wages and the amount of wages. However, applications for employment, orders (employment contracts), entries in the book of accounting for the movement of labor books, notices of the State Fiscal Service on the employment of employees for the specified persons have not been provided, and no evidence of the admission of the specified employees to work without registration of labor relations has been provided.
Authorized persons of the State Labor Service of Ukraine imposed a fine in the amount of UAH 3,004,560 on LLC "Desna" LTD.
