Activities for the provision of personnel (Mitrich O.). Prohibition of agency labor or new regulation of activities for the provision of personnel Federal Law on the provision of personnel
In Russia, the concept of “outstaffing” does not appear in legal acts, however, provisions regulating hired labor are still present in the legislation.
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Since 2019, outstaffing services can only be provided by companies that meet a number of requirements. The innovations are enshrined in Federal Law No. 116-FZ, which provides for amendments to the law on employment, and came into force in 2019.
What do you need to know?
Outstaffing is a form of labor widely used by many Russian and foreign companies and individual entrepreneurs.
This is the attraction of hired workers from a third-party organization for a certain period of time.
The conditions for the provision of such a service are specified in the outstaffing agreement.
Concept
Outstaffing is nothing more than attracting third-party personnel through a specialized company. In other words, this is the so-called. "rent" of employees.
The essence of the service is that one company (contractor) transfers a certain number of employees to another (customer). The employer in this case is the contractor, despite the fact that the people work for the customer.
Labor contracts are concluded by the executing company, which also calculates and pays wages to employees, conducts personnel records, etc.
It turns out that the staff actually works for a company with which they are not bound by civil and labor relations.
Purpose
This form of work as outstaffing has a number of advantages:
- Preservation of the conditions of the simplified tax system. This is relevant for dynamically developing companies where the staff is constantly growing. If a company employs more than 100 people, it is impossible to work on a simplified taxation system. The solution is to turn to outstaffers.
- Attracting personnel not on a “permanent” basis, but on a temporary basis. Many organizations need to hire workers for short-term work: seasonal, temporary or as part of a project. Registration and subsequent dismissal of a large number of people is impractical, since it is associated with considerable costs.
- Optimization of the company structure. Involving HR management specialists minimizes the risks associated with high-quality office work. Outstaffing allows a company to organize work rationally and efficiently.
Normative base
The term “outstaffing” does not exist in Russian legislation.
Personnel transferred to third-party organizations by an outstaffer are officially assigned to the performing company. There is a contract between this company and each employee.
Therefore, the main document on which you should rely is the Labor Code.
Not so long ago, outstaffing services could be provided by a variety of companies. Since 2019, the requirements have become more stringent: now only companies that meet certain requirements can engage in this activity.
What changes have taken effect?
In January 2019, Law No. 116-FZ came into force. The document lists the conditions for attracting employees from third-party employers.
The Labor Code of the Russian Federation now has Chapter 56.1, which contains the concept of agency labor. This is work performed by an employee at the order of the employer in the interests and under the control of an institution or individual that is not the employer of this employee.
So, agency labor involves the transfer of employees to individual entrepreneurs or firms. Essentially, this is the same thing that is used in outstaffing.
The main innovation is that agency work is now prohibited. But this does not mean at all that such a form of activity as outstaffing will be abolished from 2019.
The legislator introduces another type of activity: “activities for the provision of personnel.”
Based on this, Article 18.1 was added to the employment law (No. 1032-1). It specifies the conditions for carrying out this activity.
As for the Labor Code, it now contains Chapter 53.1 - “Features of the regulation of labor of employees temporarily assigned by the employer to other individuals or organizations.”
Who can provide staff?
Based on the provisions of the Labor Code, we can draw the following conclusion: an agreement on the transfer of personnel differs from agency labor in that it represents an agreement of the parties, and not a unilateral order.
The consent of the employees is required for its conclusion.
According to the law, such agreements may be concluded by:
- private companies that have been accredited by the Federal Labor and Employment Service and have the appropriate documentation;
- other organizations, if employees, with their consent, are temporarily transferred to a company that is an affiliate of the contractor or a company that is a party to a shareholder agreement with the contractor.
According to the agreement on the provision of personnel, the contractor (for example, a private company) temporarily transfers its specialists to the customer to perform labor functions under the management of the customer company.
The receiving party is obliged to pay for the service and use the labor of the involved employees in accordance with the labor functions specified in their employment contracts (clause 2 of Article 18.1).
Who doesn't benefit?
Innovations are not beneficial, first of all, to companies that apply special tax regimes.
In accordance with paragraph 6 of Article 18.1, these organizations cannot be private employment agencies.
In this regard, changes will also affect the Tax Code.
In paragraph 3 of paragraph 346.12 of the article it is now stated that private employment agencies engaged in the provision of personnel cannot work on a “simplified” basis.
Services for the provision of employees are subject to value added tax (subparagraph 1 of paragraph 1 of Article 146 of the Tax Code of the Russian Federation, paragraph 6, paragraph 4 of subparagraph 1 of paragraph 148 of Article as amended by Law No. 116-FZ).
Outsourcing instead of outstaffing
If the outstaffing company wants to work as before, you just need to convert the outstaffing agreement into an outsourcing contract.
Outstaffing is the rental of personnel, and the provision of specific services.
Example:
The company does not have a full-time accountant, and the specialist was provided by an outstaffer. According to the new rules, he will only be able to work for 9 months and only on condition that the company is accredited.
It is easier to transfer to a third-party company the management of accounting in general or a separate area (for example, payroll). Then there is a purchase of a service that has nothing to do with outstaffing.
A simple contract for the provision of services on a paid basis is drawn up, which is regulated by the Civil Code of the Russian Federation. In this case, an employment contract is not concluded.
Comparative characteristics of outsourcing and outstaffing are presented in the table:
| Contract clauses | Outstaffing | Outsourcing |
| Item | Transfer of personnel for rent with registration as a contractor | Transfer of a specific function to a specialized company |
| Contract term | 9 months | No limits |
| Salary | Minimum – the same as for full-time employees in the same position | By agreement |
| Decor | , | Agreement for the provision of services on a paid basis |
| Responsibility | Subsidiary | Responsible for the performer |
Accreditation and licensing
Since 2019, private agencies engaged in the provision of personnel labor are required to undergo a mandatory accreditation procedure. Without this, they have no right to engage in this type of activity.
Why is it needed?
The company is accredited and can operate as a private agency that provides agency labor on the basis of a personnel supply agreement.
In 2019, the activities of outstaffing companies are not prohibited, but rather legalized. Companies that have passed accreditation can continue to work in this direction, only with greater responsibility.
If accreditation is revoked or suspended, the firm cannot enter into staffing agreements. At the same time, all rights and obligations under previously signed contracts are retained (clause 9 of Article 18.1).
Conducted by whom?
To undergo accreditation, you need to contact the Federal Labor and Employment Service with an application and the necessary documents.
Passing accreditation means for a company that from the moment the procedure is completed, it becomes responsible for paying staff salaries and calculating taxes on them.
Documentation
Documents for accreditation:
- statement;
- a photocopy of the constituent document certified by a notary;
- confirmation of authorized capital over 1 million rubles;
- passport of the head of the company;
- document on the appointment of the manager (with stamp and signature);
- document on higher education of the manager;
- a copy of the labor manager (with stamp and signature);
- a certificate confirming that the manager has no criminal record for an economic crime or a crime against the person.
Subtleties of receiving
Mandatory conditions for accreditation:
- authorized capital over one million rubles;
- The manager has: higher education, work experience in the field of employment of at least two years;
- the company has no debts to the Federal Tax Service and other services;
- the manager has no criminal record for economic crimes or crimes against the person.
Among other things, the company must operate on a general taxation system, since special regimes for engaging in such activities are prohibited.
Responsibility
The purpose of innovation is to protect the interests of personnel. Now the customer bears greater responsibility compared to before.
Administrative
Violation of the rules, including ignoring the ban on outstaffing in Russia, entails administrative liability (Part 1 of Article 5.27 of the Administrative Code):
- for companies – a fine from 30,000 to 50,000 rubles;
- for individual entrepreneurs – a fine of 1000-5000 rubles;
- for officials - a fine of 1000-5000 rubles or a warning.
Penalty for a second violation within a year:
- for companies - a fine of 50,000-70,000 rubles;
- for individual entrepreneurs – 10,000-20,000 rubles;
- for officials – 10,000-20,000 rubles or disqualification for 1-3 years.
Subsidiary
For the employer’s obligations, including those related to the payment of wages, the customer bears subsidiary liability.
This means that if the agency incurs a debt to employees, funds can be recovered from the receiving party.
Activities to provide labor to workers (personnel)
Relations related to the provision of services by the contractor providing his employees (personnel) to work on behalf and under the control of the customer of such services have existed in civil circulation for quite a long time. These legal relationships have received such names as “outsourcing”, “outstaffing”, “personnel leasing”, “personnel rental”. Their essence lies in the fact that the service provider grants the customer the right, for a certain period, to dispose of the labor of the contractor’s employees within the limits of the labor function specified in the employment contracts between the contractor and his employees, that is, to use the labor of these workers in his own interests, giving them appropriate instructions.
Until 2016, there were no special rules regulating such legal relations in the legislation. Since 01/01/2016, the law has regulated relations regarding the provision of labor to employees (personnel) to persons who are not employers in relation to these workers, at the same time, significantly reducing the possibility of such use of hired labor. If previously the list of cases when an employer could send his employees to work in the interests and under the control of another person was unlimited, now such use of employee labor is possible only in strictly defined cases by law and only by certain categories of employers. Corresponding changes to the legislation were introduced by Federal Law No. 116-FZ of 05/05/2014, which came into force on 01/01/2016.
From this date, agency work is generally prohibited. At the same time, agency labor is understood as work performed by an employee at the order of the employer in the interests, under the management and control of an individual or legal entity that is not the employer of this employee (Article 56.1 of the Labor Code of the Russian Federation).
In some cases, the law allows employers to temporarily assign their employees to work for another person who is not their employer, for the benefit, direction and control of that person. Such assignment of workers is the subject of an agreement on the provision of labor for workers (personnel) (hereinafter also referred to as the agreement on the provision of personnel). The previously used terms “outsourcing”, “outstaffing”, etc. are not mentioned in the law, although in essence we are talking about the same legal relations.
Under a contract for the provision of personnel, the contractor temporarily sends his workers, with their consent, to the customer to perform by these workers the labor functions specified in their employment contracts in the interests, under the management and control of the customer, and the customer undertakes to pay for services for the provision of labor of workers (personnel) and to use the labor of those sent workers to it in accordance with the labor functions determined by the employment contracts concluded by these workers with the contractor (clauses 1, 2 of Article 18.1 of the Law of the Russian Federation of April 19, 1991 N 1032-1 “On Employment of the Population in the Russian Federation”, hereinafter - Law N 1032-1).
As follows from the above norm, the parties to the contract for the provision of personnel are the customer (receiving party) and the contractor (sending party). As a rule, the contractor under such an agreement can only be a private employment agency - a legal entity registered on the territory of the Russian Federation and accredited for the right to carry out activities to provide labor for workers (personnel) (clause 1, clause 3, article 18.1 of Law N 1032-1 ). Requirements for private employment agencies are provided for in paragraphs. 6 and 8 art. 18.1 of Law N 1032-1. Thus, to obtain the status of a private employment agency, a legal entity must have an authorized capital of at least 1 million rubles, it must not have arrears in paying taxes, fees and other obligatory payments; a number of requirements have also been established for the head of such an organization. In addition, a private employment agency cannot apply special tax regimes *(1).
Other legal entities, including foreign legal entities and their affiliates (except for individuals), may provide services for the provision of labor for employees (personnel) (hereinafter referred to as services for the provision of labor for personnel) only in the following cases:
The customer of such services is an affiliate of the sending party;
The customer of the services is a joint-stock company, and the sending party is a party to the shareholder agreement on the exercise of rights certified by the shares of such a company;
The customer of services is a party to the shareholder agreement concluded with the sending party (clause 2, clause 3, article 18.1 of Law No. 1032-1).
In all cases, workers are sent to the customer on a temporary basis and only with their consent (see also part one of Article 341.1 of the Labor Code of the Russian Federation). Regardless of whether the sending party is a private employment agency or another person, the basis for the employment of employees of such an organization with the receiving party is always a contract for the provision of personnel.
The customer of services for the provision of personnel (receiving party) can, in principle, be any individual or legal entity. However, the very possibility of providing personnel labor (and, accordingly, using such services) is associated with certain restrictions. Thus, sending workers to work for the receiving party in the provision of services for the provision of personnel labor is not allowed in the following cases:
In order to replace the workers of the host country participating in the strike;
To perform work in the event of downtime (temporary suspension of work by the receiving party), bankruptcy proceedings of the receiving party, introduction by the receiving party of a part-time regime in order to preserve jobs in the event of the threat of mass layoffs of workers of the receiving party;
To replace workers of the receiving party who refused to perform work in cases and in the manner established by labor legislation, including replacing workers who temporarily suspended work due to a delay in paying them wages for a period of more than 15 days (clause 12 of article 18.1 Law N 1032-1).
A private employment agency can provide services for the provision of personnel only in cases where workers are sent:
To an individual who is not an individual entrepreneur, for the purpose of personal service, assistance with housekeeping;
To an individual entrepreneur or legal entity for the temporary performance of duties of absent employees, who, in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, employment contracts, retain their place of work;
To an individual entrepreneur or legal entity to carry out work related to a deliberately temporary (up to nine months) expansion of production or the volume of services provided;
To perform work when fixed-term employment contracts are or may be concluded with employees (Article 59 of the Labor Code of the Russian Federation), however, this applies only to certain categories of persons seeking temporary work (persons studying full-time, single and large parents raising minor children; persons released from institutions serving a sentence of imprisonment) with whom a private employment agency has the right to conclude employment contracts on their temporary assignment to work for a customer for the purpose of temporary employment of such persons (parts two and three of Article 341.2 of the Labor Code of the Russian Federation).
A private employment agency does not have the right to provide services for the provision of personnel for the purposes of:
Carrying out certain types of work at hazardous production facilities of hazard classes I and II according to lists approved in the manner established by the Government of the Russian Federation;
Performing work in workplaces with hazardous working conditions of 3 or 4 degrees or with hazardous working conditions;
Replacement of individual positions in accordance with the staffing table of the receiving party, if the presence of employees filling the corresponding positions is a condition for the receiving party to obtain a license or other special permission to carry out a certain type of activity, a condition for membership in a self-regulatory organization or the issuance of a certificate of admission to a certain type by a self-regulatory organization works;
Performing work by employees as crew members of sea vessels and mixed (river-sea) navigation vessels (clause 13 of article 18.1 of Law No. 1032-1).
Unlike private employment agencies, other legal entities that have the right to provide services for the provision of personnel labor are not bound by any restrictions regarding the scope of activity of the assigned workers. However, restrictions on the use of labor of such workers established by paragraph 12 of Art. 18.1 of Law N 1032-1 also apply to them.
Federal laws may establish additional restrictions on sending workers to work with the receiving party under a personnel supply agreement (Clause 14, Article 18.1 of Law No. 1032-1). To date, such laws have not yet been adopted.
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On the issue of changes to the rules for leasing the labor of third-party workers registered in other organizations. I read that since 2015, some restrictions have been introduced for outsourcing and outstaffing. What are these changes and who do these restrictions apply to? Will they relate to the right to engage cleaning companies, external lawyers, and other consultants necessary to carry out the Company’s work?
Answer
From 01/01/2016, agency work is prohibited and restrictions are introduced on the provision of personnel (outstaffing).
If a cleaning company cleans premises using its own employees, then it does not provide personnel, but rather the service as a whole. Such contracts are ordinary contracts for the provision of services and do not fall under.
But it is important that the cleaning service includes the entire cycle of this process. If, as part of cleaning the premises, they provide only staff and do not control the process, are not responsible for the result, etc., then this is prohibited by the new law.
Therefore, it is important that the contract clearly states that the entire process is transferred to the contractor.
The same applies to third-party lawyers and consultants.
The rationale for this position is given below in the materials of the “Lawyer System” .
« What exactly was banned?
Authorized capital of at least 1 million rubles;
There should be no debt on taxes, fees and other obligatory payments to the budget;
The head of the agency must have a higher education, work experience in the field of employment or promotion of employment for at least two years over the last three years. Also, he must not have a criminal record for crimes against the person or in the economic sphere.
Private employment agencies cannot be companies under special tax regimes (STS, etc.). This limitation is established in Article 18.1 of Law No. 1032-1. And from January 1, 2016, this is directly stated in paragraph 3 of Article 346.12 of the Tax Code of the Russian Federation.
The list of persons who can be classified as affiliated is given in Article 4 of the RSFSR Law of March 22, 1991 No. 948-1 “On competition and restriction of monopolistic activities in commodity markets.” These include, in particular, persons who control more than 20 percent of the authorized capital.
Other legal entities, including foreign ones. Companies that do not have the status of a private employment agency may provide personnel in exceptional cases.
Thus, a company can send workers to another organization if this organization (the receiving party):
Affiliated with respect to the sending party, or
Is a joint-stock company, and the sending company is a party to a shareholder agreement on the exercise of rights certified by the shares of such a company, or
Acts as a party to the shareholder agreement concluded with the sending party.
Such rules are established in paragraph 3 of Article 18.1 of Law No. 1032-1.
The conditions and procedure for providing labor to employees by affiliated and other entities should be established by a special federal law, but it does not exist yet.
Therefore, such a work scheme is not yet available. Today we can only talk about the specifics of an outstaffing agreement with a private employment agency.
What kind of work can a private agency provide employees for?
The following restrictions do not apply to cases where workers are referred by an organization other than a private agency in the exceptional cases described above.
Entrepreneurs and legal entities have the right to attract personnel:
To temporarily fulfill the duties of absent employees who, by law, retain their place of work. The term of the contract is limited to the period while there are no replacement employees of the customer;
To carry out work related to a deliberately temporary (up to nine months) expansion of production or the volume of services provided. The maximum period is 9 months.
Private employment agencies may send employees to an individual to perform personal service work and to provide assistance with housekeeping.
Such rules are established in Article 341.2 of the Labor Code of the Russian Federation.
A special rule has been established for certain categories of persons who are looking for temporary work, namely:
Full-time students;
Single and large parents raising minor children;
Former prisoners.
When concluding contracts with these persons, the period is limited to a fixed-term employment contract ().
When a private agency is not entitled to provide employees
“You can enter into an outsourcing agreement, but do not specify elements of labor relations in it”
You cannot send employees to work for the receiving party for the following purposes:
Performing work at facilities classified as hazardous production facilities of hazard classes I and II, certain types of work, the lists of which are approved by the Government of the Russian Federation ();
Performing work in workplaces where working conditions are classified as hazardous working conditions of the 3rd or 4th degree or hazardous working conditions;
Filling positions according to the staffing table, if such employees are needed to obtain special permission from the receiving party. For example, licenses or membership in an SRO, SRO certificate of admission to a certain type of work;
Replacement of workers who refused to perform work in cases established by labor legislation. For example, due to a delay in wages for more than 15 days;
Carrying out work in the event of downtime, bankruptcy, introducing a part-time regime to preserve jobs in the face of the threat of mass layoffs of workers of the receiving party;
Replacement of employees participating in the strike;
Performing work by hired employees as crew members of sea vessels and mixed navigation vessels.
Such rules are established in paragraphs, Article 18.1 of Law No. 1032-1.
Special laws may introduce additional restrictions on the assignment of workers under a personnel supply agreement ().
How not to violate the interests of employees
The legislator obliges to respect the interests of employees when sending them to another employer.
The employee must agree to work temporarily with the customer (). The presence of consent is confirmed by the concluded additional agreement to the employment contract with him, which indicates information about the receiving party ().
The employee’s remuneration conditions should not be worse than those of the receiving party’s employees with similar job functions and qualifications (). If the receiving party does not have a similar position in the staffing table, then any wage can be set, but not lower than the minimum wage.
A private employment agency is obliged to enter into the employee’s work book information about work under a contract for the provision of personnel labor with the receiving party ().
Nota bene!
The contract for the provision of personnel must provide for the agency’s obligation to send the receiving party reports on payments due to employees. If such a condition is not prescribed, and the agency’s funds are not enough to pay employees, employees will be able to present demands to the receiving party ().
The receiving party bears subsidiary liability for the obligations of the private employment agency that arise from the labor relationship with the referred workers. Including non-payment of wages ().
The receiving party is obliged to comply with the requirements of the law regarding safety conditions and labor protection (). It is obliged to investigate accidents involving provided employees ().
When concluding a contract for the provision of personnel, the opinion of the trade union, if any, must be taken into account (). But this is only necessary if:
Employees are involved in work related to a deliberately temporary (up to 9 months) expansion of production or the volume of services provided, and
The number of employees exceeds 10 percent of the average number of employees of the receiving party.
What should be in the documents
The employment contract between a private agency and an employee who is assigned to another employer must contain a provision that the employee is accepted to perform work under the direction and control of a person other than his employer ().
When sent to a customer, the employee and the agency must enter into an additional agreement to the employment contract, containing a number of information about the receiving party and the agreement on the provision of personnel (). In particular, you need to indicate:
Name of the receiving party;
TIN for the customer - a legal entity (passport data for the customer - an individual);
Place, date of conclusion, number and validity period of the contract for the provision of personnel.
Additional agreements may contain conditions on a set of rights and obligations of the receiving party, which are inherent, as a rule, to the employer - a legal entity. This could be information, for example:
On the right of the receiving party to demand that the assigned employee perform his job duties, take care of the property of the receiving party, etc.;
On the obligation of the receiving party to remove from work or not allow the assigned employee to work in the cases specified in Article 76 of the Labor Code of the Russian Federation.
An employment contract with a private employment agency can be either fixed-term or indefinite. The conclusion of a fixed-term contract occurs on the general basis provided for by the Labor Code of the Russian Federation.
The receiving party is also obliged to provide the sending party with the following information:
About its main type of economic activity;
On the results of a special assessment of working conditions in the workplace;
Other information necessary to determine the insurance rate and establish premiums and discounts to the insurance rate for insurance against accidents at work (“On compulsory social insurance against accidents at work and occupational diseases”).
The private agency makes a record of work with the receiving party under a personnel supply agreement in the workers’ work books. This is provided for in Article 341.2 of the Labor Code of the Russian Federation.
How can you work without turning to private employment agencies?
Prohibitions and restrictions apply to the provision of personnel to the territory and under the control of the customer; this occurs during outstaffing. At the same time, the restrictions do not apply to the outsourcing agreement.
When outsourcing, a company transfers certain functions to another organization. For example, accounting. In this case, the employee continues to work at his workplace and receives all work assignments from his employer. The customer pays for the result of the work (service), and not the process of its execution. Claims regarding the quality of work are made to the organization, and not to a specific employee.
However, in practice, an outsourcing agreement often provides for the provision of personnel under the control of the customer. Courts do not always see the difference between it and outstaffing (rulings,). Therefore, if the relationship can be called the provision of services or a contract, then in order to avoid unnecessary disputes, it is worth moving away from the term “outsourcing” in the contract, and concluding contracts for the provision of services (performance of work).
The subject matter of the transaction will help differentiate an outstaffing agreement from outsourcing. If the subject of the contract is the implementation of certain activities on the instructions of the customer, this is outsourcing. And if the staff is leased, then we are talking about an outstaffing agreement.
It is important that the relationship actually meets the criteria for the provision of services. When determining the subject of the contract for the provision of services, it is necessary to agree on their list and volume* (). For example, if we are talking about accounting services, then the following wording can be used in the contract:
“The Customer instructs, and the Contractor assumes responsibilities for the provision of the following services:
Maintaining accounting and tax records in accordance with the current legislation on accounting and the Tax Code of the Russian Federation;
Drawing up the necessary reports to tax authorities, extra-budgetary funds and state statistical authorities.”
Control over the work of the contractor’s employees should not pass to the customer. The relationship between the customer and the contractor’s employees cannot contain elements of labor relations. Then the risk of retraining into a staff provision relationship or agency labor will be minimal.”
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From January 1, a ban on agency work was established. Are organizations now allowed to use outside workers? How has the regulation of private employment agencies changed? A representative of Rostrud answered readers' questions.
Ivan Ivanovich, agency work is prohibited, but the provision of personnel is allowed. What are the differences between these concepts?
I.I. Shklovets: The definition of agency labor is given in the new article. 56.1 TK. This is when an employee works at the direction of the employer, but “for the benefit, direction and control” of another person or entity other than his employer. And agency work is prohibited. But temporary assignment of workers to other individuals and legal entities under a labor supply agreement is permitted in strictly defined cases and subject to the fulfillment of certain conditions. For example, workers can only be provided for a specific period of time:
For a temporary expansion of production - no more than 9 months;
When replacing a temporarily absent main employee - for the period of his absence.
Employees can be sent to another employer only with the consent of these employees. An additional agreement to the employment contract must be concluded with them. The term of the employment contract with the employee is determined in accordance with the contract for the provision of personnel.
Who can provide labor?
I.I. Shklovets: Activities to provide labor for workers have the right to be carried out by private employment agencies, which will undergo the accreditation procedure in accordance with the established procedure.
In addition, affiliated companies, as well as participants in shareholder agreements, can provide labor to each other. However, this process must be regulated by a separate federal law. The draft of such a law was prepared back in 2014, but it is still being discussed and approved.
So, until this law is adopted, only private employment agencies can provide personnel?
I.I. Shklovets: There is no direct prohibition to engage in this activity for organizations that are not such agencies. However, until a special law has been adopted and separate rules for providing labor to workers, for example, by affiliated companies, have been prescribed, they will have to fulfill all the requirements that are established for private employment agencies, and this is problematic.
Do outsourcing and outstaffing agreements fall under the definition of agency labor? Should companies terminate such contracts?
I.I. Shklovets: Under an outsourcing agreement, one company provides another company with a service to perform some type of work. It does not transfer management and control over its employees to the customer company. So outsourcing agreements are not prohibited.
But outstaffing, the removal of workers from the staff with the subsequent use of their labor and leasing of personnel may fully or partially fall under the definition of agency labor. If an organization has such agreements, they must be brought into compliance with the requirements of the law or terminated.
What are the mandatory requirements for private employment agencies?
I.I. Shklovets: In order for a private employment agency to be accredited for the right to conduct activities providing labor for workers, it is necessary:
Authorized capital of at least 1 million rubles;
No debt in payment of taxes, fees and other obligatory payments;
Higher education and work experience in the field of employment or promotion of employment for at least 2 years over the last 3 years with the head of the agency;
He has no criminal record for committing crimes against the person or crimes in the economic sphere.
Can entrepreneurs provide personnel services?
I.I. Shklovets: No, this opportunity is provided only to legal entities. But workers can be sent to work for any employer, including entrepreneurs.
What are the conditions and restrictions imposed on organizations engaged in the provision of personnel?
I.I. Shklovets: They can be divided into two groups. The first contains those that must be completed in order to receive accreditation. I have already named them. In the second - those related to the activity of providing personnel. This is the need to conclude employment contracts and additional agreements with employees. In addition, private employment agencies are required to comply with all requirements provided for by the Labor Code for employers.
For what types of work is it impossible to provide personnel?
I.I. Shklovets: You cannot send workers:
To replace workers participating in a strike;
To perform work in case of downtime (temporary suspension of work by the receiving party);
To replace employees who refused to perform work due to violation of the requirements of the Labor Code;
To perform certain types of harmful and dangerous work;
To work in such full-time positions in the host organization that are necessary for it to obtain a license or special permission to conduct certain activities or for membership in a self-regulatory organization.
There is also a restriction on the work profile - it is prohibited to provide personnel as crew members of sea and mixed (river - sea) navigation vessels.
Private employment agencies engaged in the provision of labor to workers cannot apply special tax regimes. What is the reason for this ban?
I.I. Shklovets: This ban was established to prevent the use of various schemes to optimize costs and pay taxes, which often lead to violations of workers’ rights.
What are the general guarantees for employees of private employment agencies?
I.I. Shklovets: Employment contracts are concluded with employees of private employment agencies.
You can send them to another employer only with their consent. Each time an employee is sent to a new employer, an additional agreement is concluded.
Workers sent to other employers under personnel supply agreements are guaranteed all the rights granted by labor legislation.
Who controls the performance of labor duties by personnel under an employee labor contract?
I.I. Shklovets: The employment agency is obliged to monitor whether the receiving party complies with labor law standards and whether the actual use of the labor of sent workers corresponds to the labor functions defined in their employment contracts. And the receiving party does not have the right to interfere with the employment agency in this.
Who should pay wages, including compensation related to working conditions, to temporary workers - a private employment agency or the receiving party?
I.I. Shklovets: The employer of such workers continues to be a private employment agency. Therefore, it must fulfill all the obligations established for employers, in particular, pay wages to its employees.
This means that the employment agency must also pay personal income tax on employees’ salaries and insurance contributions to funds? Then at what rate will contributions to the Pension Fund and “for injuries” be paid if the work of the receiving party is harmful and (or) dangerous?
I.I. Shklovets: All taxes and contributions to extra-budgetary funds must be calculated and paid by private employment agencies as employers. The rate of insurance contributions from the earnings of temporary workers is determined based on the main type of activity of the receiving party. And discounts and allowances for this tariff are established taking into account the results of a special assessment of working conditions at workplaces where temporary workers work.
Therefore, the receiving party must provide the employment agency with information about its main type of economic activity, the results of the special assessment, as well as all the information necessary to determine the insurance rate, discounts and surcharges.
To do this, does the receiving party need to conduct an unscheduled special assessment of workplaces where temporary workers are employed?
I.I. Shklovets: An unscheduled special assessment should be carried out when commissioning new workplaces.
The labor of employees is provided to another employer to replace a temporarily absent employee or in connection with a temporary expansion of production. In this case, no employment relationship arises with the “adopted” employee and no employment contract is concluded.
If temporary workers are sent to new jobs and their work period is more than 6 months, a special assessment of these jobs must be carried out. And if employees are sent to existing jobs for which a special assessment was previously carried out (and its results are valid), there is no need to conduct an unscheduled special assessment of jobs for such workers.
How are accidents involving provided personnel investigated?
I.I. Shklovets: The receiving party undertakes to ensure safe conditions and labor protection. If an employee temporarily sent under a labor contract participated in the production activities of the receiving party and an accident occurred to him, such an incident is investigated by a commission of the receiving party. But the commission also includes a representative of the employer who sent the employee. If this representative does not arrive in time to investigate the accident, the investigation period will not be extended.
What is the liability for violating the prohibition on the use of agency labor and requirements for the provision of personnel?
I.I. Shklovets: Violation of the ban on the use of agency labor is regarded as a violation of labor legislation and entails administrative liability under Art. 5.27 Code of Administrative Offences. And violation of the requirements for the provision of personnel may fall under Art. 5.27.1 Code of Administrative Offenses as a violation of regulatory labor protection requirements.
The new edition of the Labor Code provides for subsidiary liability of the sending and receiving parties for the obligations of the employer arising from labor relations with employees. When is such liability possible?
I.I. Shklovets: This could be, for example, obligations to pay wages and other amounts due to the employee, to pay monetary compensation for the employer’s violation of the established deadline for paying wages, vacation pay, and dismissal payments.
