(Dnipropetrovsk OAS No. 804/2857/18 dated August 10, 2018)
In 2018, due to the increase of the minimum wage, according to the Law of Ukraine on the State Budget of Ukraine for 2018, the amount of fines imposed by the bodies of the State Labor Service of Ukraine has increased significantly. At the present time, such fines reach tens, and those hundreds of thousands of UAH.
In this case, the State Labor Organization's body of limited liability was fined in the amount of UAH 3 574 080. For the fact that the company worked without proper registration of labor relations of 32 employees with whom was concluded civil-law contracts of contract. However, in the opinion of the State Labor, the said agreements had signs of employment contracts, which became the reason for the imposition of a fine.
Disagreeing with such a decision of the controlling authority, the company appealed to the court with an administrative claim, arguing that the provisions of the said agreements are not subject to the rules of the internal labor regulations, and organizes the process of performance of works. The main feature that distinguishes labor relations from civil law is the fact that labor law regulates the process of labor activity, its organization, and under a civil contract, the process of organizing work remains outside its borders, the purpose of the contract is to obtain a certain result. The subject of an employment contract is the work of an employee in the process of production, while the subject of a contract of a civil-law nature is the performance by his party of a certain amount of work. Therefore, based on the above contracts, the contracts are civil law, not labor.
Rejecting the claim State Labor Service of Ukraine indicated that analysis given contracts set specified in the contracts for services relating to the permanent nature NACE performance that they can perform only staff, trained, instruction and testing for safety. It is unacceptable to execute civil-law contracts for hazardous works. That is, it refers to the substitution of labor contracts civil law. So, now actually has been a thirty-two employees to work without an employment contract, issued an order or instruction of the owner or the authorized body.
In turn, District Administrative Court agreed with the arguments of the plaintiff and stated that under Part 1 st.626 Civil Code of Ukraine contract is an agreement between two or more parties aimed at the establishment, modification or termination of civil rights and obligations.
Regulations st.901 Civil Code of Ukraine under a contract for services, one party (artist) agrees on the instructions of the other party (the customer) to provide a service that is consumed in the process of committing an action or exercise certain activities, and the customer agrees to pay the artist said services , unless otherwise specified by the agreement.
According to Art. 902-903 of the Civil Code of Ukraine, the performer must provide the service personally. In cases stipulated by the contract, the performer has the right to enforce the contract for the provision of services to another person, while remaining fully responsible to the customer for breach of contract. Fee for a service contract. If the contract provides for the provision of services for a charge, the customer is obliged to pay the service provided to him in the amount, in the terms and in the order established by the contract.
Given these guidelines, we can conclude that the parties signing civil contract, agreed on all its essential terms that do not contradict the laws of Ukraine, as reflected in the relevant contracts.
At the same time, the execution of works and their payment are indicated by the acts of acceptance of work, cash withdrawal orders.
Article 204 of the Civil Code of Ukraine consolidates the presumption of legality of the transaction. This presumption means that the legal transaction is considered lawful, that is, it creates, modifies or terminates civil rights and obligations until this presumption is refuted, in particular, on the basis of a court decision which has become valid.
Thus, in case of non-interruption of the presumption of legality of the contract, all rights acquired by the parties to the transaction should be freely carried out, and the created duties are subject to execution.
In accordance with Article 215 of the Civil Code of Ukraine, the grounds for the invalidity of an agreement are the non-observance of the requirements established by parts one-third, fifth and sixth articles of Article 203 of this Code at the moment of the commission of an agreement by a party (parties).
A transaction is invalid if its invalidity is established by law (void transaction). In this case, the recognition of such a transaction as invalid by the court is not required.
If the invalidity of the transaction isn’t explicitly prescribed by law, but one of the parties or another interested person denies its validity on the grounds established by law, such a transaction may be declared invalid by the court (the disputed transaction).
Evidence of the existence of civil contract contracts of the signs of void transactions by the defendant court is not provided, as well as provided no evidence of recognition of the court of this contract invalid.
In addition, the plaintiff has been provided to the court tax calculations of the amount of income accrued (paid) in favor of individuals, and the amounts deducted from them taxes.