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Publication date: 17.05.2024
active and purposeful military lawyer with more than 4 years of experience
QUESTION
The employee will be accepted at the enterprise in the order of transfer from another enterprise. Is it necessary to submit a report to the DPS in this case?
ANSWER
Yes, it is necessary.
First of all, we will remind employers of the main points related to the submission of a notice of employment/conclusion of a gig contract (hereinafter — Notice).
Notification of acceptance
According to the third part of Article 24 of the Labor Code of Ukraine (hereinafter - the Labor Code), an employee cannot be allowed to work without:
1) conclusion of an employment contract drawn up by order (order) of the employer;
2) notification of the tax authority on hiring an employee.
The Notification form was approved by the Resolution of the Cabinet of Ministers of Ukraine dated June 17, 2015 No. 413 "On the procedure for notifying the State Tax Service and its territorial bodies about hiring an employee/concluding a gig contract."
Regular employers inform tax officials about the hiring of employees under employment contracts (contracts). And Diya City residents — about hiring employees and concluding gig contracts with gig specialists. Since our question concerns employees of a regular enterprise, we will continue to talk about regular employers.
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During martial law, employers are not exempt from the obligation to submit a Notice
We submit the notification to the territorial bodies of the State Tax Service (SST) at the place of registration of the employer as a tax payer. At the same time, DPS only accepts Notifications from the insured.Further, the information contained in it is transferred to the register of insured persons and the register of insured persons of the State Register of Social Insurance.
Ways and deadline for submission
The notification is submitted by means of electronic communication with the use of a qualified electronic signature (KEP) of the responsible persons.
If it is not technically possible to submit the Notice using the KEP, it can be submitted in the form of a paper document together with a copy in electronic form. But, unfortunately, the possibility of submitting the Notice exclusively on paper is not provided.
Employers are required to submit the Notice after the hiring order is issued, but before the employee is actually admitted to work.
Can it be submitted on the day the employee is admitted to work? Yes, if the employee starts work later than the Notification is submitted. For example, if an employee starts work at 4:00 p.m., and the Notice is given at 9:00 a.m., the provisions of Article 24 of the Labor Code will not be violated.
However, in order to avoid possible misunderstandings with labor inspectors, we still recommend submitting the Notice on the eve of the employee's first working day.
Employee transfer
Transfer to another position. It is not necessary to inform the tax authorities about the transfer to another position within the limits of the previously concluded employment contract. Therefore, in case of transfer or transfer of an employee to another job (position) with the same employer, we do not submit a Notice. And this is logical, because as a result of such actions, the employment relationship between the employee and the employer is not terminated, and a new employment contract is not concluded.
Transfer to another company. If the transfer of an employee from one enterprise to another is realized by dismissal on the basis of paragraph 5 of the first part of Article 36 of the Labor Code, then a Notice cannot be dispensed with.
The fact is that the peculiarity of such a transfer is that the employee moves from one employer to another, and at the same time his position may change or may remain the same. At the same time, the work will be carried out in the future under a new employment contract, and therefore a new Notice is needed.
So let's summarize: in the situation under consideration, before admitting an employee to work, the employer must send a Notice to the DPS authorities.
Conclusions. In the case of transfer of an employee to another position at the same employer, the employment relationship between them does not terminate, so there is no need to submit a Notice to the DPS.
If an employee is accepted at the enterprise by transfer, then before admitting him to work, it is necessary to submit a Notice to the DPS in the general manner.
