Article makes comments on the labor law of Ukraine in a part an oformleneiya for work of seasonal workers in agricultural industry.
The branch of agricultural production has one specific feature – seasonal nature. It means that works are carried out not all year, and during the corresponding period (season). Let’s consider the nuances connected with hiring of workers for seasonal works.
Civil-law or labor?
In practice of seasonal workers accept under the contract of civil-law character (podryada, about service) or to the employment contract. Differences between them are systematized on the basis of Letters No. 18, 42 and 200 further in the table.
It is necessary to take into consideration the next moment. If work has constant character, that is in a dogoyovor the period and time of its performance is specified, vypolnyat this work (Letter No. 1558) is possible only on the basis of the employment contract.
Example 1
It is planned to employ the worker for performance of silage works – pasture preparations in silage holes a trambovaniye method. In the contract the work schedule, time of its beginning and the termination is provided.
Here it is possible to conclude only the employment contract (rabochego it is necessary to accept in "silosnik") as regulation of process of labor activity (schedule), instead of receiving result is provided.
Example 2
For scraps of garden trees it is planned nanyat workers. The contract establishes only limiting (final) term of works, without submission internal labor rasporyadku. Payment by result of work is carried out from calculation for each cut-off tree.
On these conditions it is expedient to sign the civil-law contract as a subject of such contract is the result of works, instead of process their performance.
Features of employment
Under the civil-law contract. When hiring workers on the terms of such contract prepare, as a rule, the bilateral document under the name "Labor agreement". However, it can be and a doyogovor podryada or the contract on service.
In the agreement surely specify:
• concrete work, a task or the order which needs to be executed;
• result of works which is subject to acceptance predyopriyatiy (for example, quantity cut off derevev);
• the size payments (sum) by result.
Thus the application for admission on rabotu isn’t made out, the order isn’t issued, records aren’t brought in the service record, the sheet of the accounting of working hours isn’t kept.
After performance of work of the party sign the act of acceptance transfer of works (services) on the basis of which compensation is paid to the worker.
According to the employment contract. From a position the Labour Code labor doyogovor which consist with seasonal workers, belong to the urgent. Despite the general features inherent in such contracts, regulation of labor relations with these workers has the specific nuances provided by the Decree No. 310 (further – the Decree).
Works which owing to natural and climatic conditions are carried out not all the year round, and during the certain period (season) which doesn’t exceed six months (Decree item 1) are considered as the seasonal.
The exhaustive list of seasonal works is provided in the List No. 278. Among them for branch "Agricultural industry" works in vegetable growing, gardening, wine growing, a sveklovodstvo, a hmeleyovodstvo, on cultivation and collecting potatoes, tobacco, forages, bakhchevy cultures, herbs, work at inkubatorno-poultry-farming and mezhkhozyayyostvenny inkubatorny stations (item 3) are provided.
Make out seasonal workers as follows:
• first, the worker writes the application for acceptance for seasonal work on a certain spetsialyyonost;
• secondly, on the basis of the statement the order (order) on employment where it is specified is issued that this worker is accepted for seasonal work (and term of the seasonal contract can’t exceed duration of a season). Let’s note that in it sluchae test with a view of check of compliance of a rabotyonik isn’t established to work charged to it;
• thirdly, in a generally established order zapolnyaetsya the service record (without the instruction on seasonal nature of work). If the worker in previous year fulfilled a full season at the enterprise and in the current year again signed the relevant contract for a season, length of service on given to a predpriyayotiya it is considered for it continuous. Thus in grafe 3 Data on work the service record make entry: Uninterrupted length of service of work remains (Instruction No. 58 item 1.1, 2.19).
Seasonal workers leave by order of which is published the last day validity, approximately with such formulation: To dismiss [such from such date] in connection with the termination of term of a labor doyogovor, Art. 36 item 2 the Labour Code. Similar record do in the service record.
I pay attention: if workers carry out any types of the seasonal works which have not been provided by the List No. 278 (for example, stacking for a harvest) to extend to them action of the Decree isn’t present the bases. The usual srochyony employment contract, without the features provided by the Decree in that case consists.
Taxation of the income of seasonal workers
The income of the workers accepted on the basis of the civil-law contract, is assessed:
• The personal income tax on a rate of 15 %. The taxation object doesn’t decrease by the sum of the added pension contributions, NSL isn’t applied, as these payments aren’t a salary;
• contributions to PF under contracts on performance as works, and services (Letter No. 2790). With contributions to other types of social insurance (on vreyomenny disability, on unemployment, from occupational accidents) such doxody aren’t assessed.
The salary of the workers accepted on the basis of the trudoyovy contract, is assessed in the general order:
• Personal income tax. The taxation object decreases by the sum of the contributions added in PF and the Social Insurance Fund, NSL can be applied;
• contributions to the Pension fund and funds socstraxa.
Social guarantees
The persons issued on the employment contract, have the same social guarantees, as ordinary workers. For seasonal workers on whom Decree action extends, concerning it there are following features:
• holiday is provided in proportion by otyorabotanny time (to Art. 6 of the Law on holidays). The same concerns compensation for unused holiday;
• sick-lists (except sick-lists as a result of a truyodovy mutilation or occupational illness) are paid no more than in 75 calendar days within a year (h. 2 Art. 35 of the Law No. 2240).
Concerning other guarantees (for example, sick-lists as a result of a labor mutilation or a professionalyyony disease, established by decree), they predostavlyayutsya in accordance with general practice.
It is necessary to remember that for persons who worked (rabotayut) at the enterprises connected with seasonal harakteyory of production according to the List No. 278, the settlement period for definition of an average salary for charge of the hospital and established by decree makes 12 calendar months in a row (with 1st on the 1st), previous to month of approach of insured event (Order No. 1266 item 4). By the way, for nonseasonal workers this period makes six months.
Example 3
The worker is accepted for seasonal work as the watchman of a cheyoreshnevy garden from 26.05.08 to 28.07.08 (a full season).
From 14.07.08 to 16.07.08 it was on the sick-list. The salary for this period made:
• in 5 working days of May – 263,15 UAH.;
• in 19 working days of June – 1 000 UAH.
Last year the worker also protected it predyopriyaty (seasonal work) – from 21.05.07 to 30.07.07. A salary for 21 working days of July – 668,19 UAH.
According to the service record within the last 12 months before illness approach it more nigde didn’t work. The insurance experience makes more than 8 years. Three fulfilled months will be included in the settlement period (July, 2007 – June, 2008). As the worker paid insurance fees of less full 6 calendar months within the last 12 kayolendarny months before approach of insured event, sick-lists are paid proceeding from a faktiyochesky salary from which insurance fees, but not above the size of the minimum salary established for the period of approach of insured event (525,00 UAH were paid.).
1. Let’s define a srednednevny salary: (668,19 UAH. + 263,15 UAH. + 1 000 UAH.): (21 dn. + 5 dn. + 19 dn.) = 42,92 UAH., that doesn’t exceed maksiyomalny size of 423,26 UAH. (9 735 UAH.: 23rd slave. dn. in July).
Note. 9 735 UAH. – it is the size of the maximum size of expenses on compensation, with which vzimayutsya insurance fees, in July, 2008.
2. Let’s estimate the sum of sick-lists: 42,92 UAH. x 3rd slave. dn. = 128,76 UAH.
This sum exceeds the sum of sick-lists calculated proceeding from the minimum salary, that is 68,48 UAH. (525 UAH.: 23rd slave. dn. in July x the 3rd slave. dn.), therefore sick-lists are paid at a rate of 68,48 UAH.
List of documents
1. The law on holidays – the Law of Ukraine from 15.11.96 of No. 504/96-BP About holidays.
2. The law No. 2240 – the Law of Ukraine from 18.01.01 of No. 2240-III About obligatory state social insurance in connection with temporary disability and the expenses caused by burial.
3. The decree No. 310 – the Decree of Presidium of the Supreme Council of the USSR from 24.09.74 of No. 310-IX About working conditions of workers and the employees occupied on seasonal works.
4. The instruction No. 58 – the Instruction about an order of maintaining service records of the workers, approved by the joint order of Ministry of Labor, Ministry of Justice and the Ministry of Social Security from 29.07.93 of No. 58.
5. An order No. 1266 – the Order of calculation of an average salary (income) for calculation of payments for the obligatory state social insurance, approved by the resolution KMU from 26.09.01 of No. 1266.
6. The list No. 278 – the List of seasonal works and the seasonal branches, approved by the resolution KMU from 28.03.97 of No. 278.
7. The letter No. 18 – the letter of Ministry of Labor and social policy of Ukraine from 06.08.04 of No. 18-429.
8. The letter No. 42 – the letter of Ministry of Labor and social policy of Ukraine from 11.03.02 of No. 06/2-4/42.
9. The letter No. 200 – the letter of Ministry of Labor and social policy of Ukraine from 26.12.03 of No. 06/1-4/200.
10. The letter No. 1558 – GNAU letter from 29.03.07 of No. 1558/P/17-0715.
11. The letter No. 2790 – the letter of the Pension fund of Ukraine from 21.02.07 of No. 2790/03-20.