STAFF SCHEDULE AT FLP: OPINION OF MINSOCOLITICS

   Under the pressure of dissent, the "Trudoviks" are forced to "get out". It happened, for example, with the staffing. The letter of the Ministry of Social Policy dated 11/21/2016, No. 5907/0 / 10-16 / 06, contains an unequivocal hint that the staffing table is obligatory for the individual employer. Moreover, it is not even completely clear what the Minsotspolitiki argues for its position.

   Thus, in the said letter there is an appeal to clause 1.6 of section I “General Provisions” of Instruction No. 286, which refers to primary sources for determining the quantitative composition of workers. These are the forms of primary records, listed in the same section 1.6 .: order (instruction) on employment, transfer to another job, termination of an employment contract; personal card; order (order) on the granting of leave; timesheet of the use of working time and payroll; payroll, payroll, payroll, etc.
   But hardly the staff list can be counted among such forms of primary records. Therefore, it is more likely that the Minsotspolitiki sees its “obligation” for an employer in a different context (without reference to Instruction No. 286). They say it is necessary, “because it is needed”: “The compilation of the staffing table is necessary in the work with the staff. Based on the staffing table, decisions are made, in particular, on the admission, transfer of workers to another job, the establishment of official salary, tariff rate (salary) to a particular employee. The presence of staffing is a guarantee of ensuring the rights of workers to work, protection from unlawful dismissal and pay. ”

   Can this be objected, and if so, what? You can start with the fact that the very link to Instruction No. 286 raises a number of questions. Instruction No. 286 is not a document that introduces the obligation of business entities to maintain a personnel document. Formally, from Instruction No. 286 it only follows that when drawing up statistical documentation one should be guided by such and such primary accounting documentation.

   But, where is the employer's FLP, and where is the statistical reporting on labor? FLP per se is not served! Through the “cross-references” in the legislation to Instruction No. 286, the reporting on the employment of persons with disabilities also “relies”, but again, what is important and what we have already said is that the staff list should not be counted among the primary accounting records.

   But if not instruction number 286, then what? The thesis is that without the staffing table it is impossible to ensure the fulfillment of the labor guarantees of workers, and those who inspect that the employer checks that the guarantees are fulfilled. But how close is it to reality? We consider it controversial. FLP may well do without the staffing table and successfully implement (and the “Trudoviks” control) the norms of the Labor Code, the Law on Wages, the Law on Leave, etc.

   Let the Trudoviks substantiate the opposite with concrete examples. This is not done. Again, the current legislation does not define the concept of "staffing". Nowhere is it directly stated that FLP should lead him. Moreover, it is possible to meet judicial decisions, where the courts speak in favor of the non-binding staffing even for legal entities.

   For example, the Dnipropetrovsk Appeals Administrative Court in the decision of 06/15/2017. In case No. 808/478/17 ***, it indicated that employers (with the exception of government bodies and institutions) should not maintain the staffing table.

   But how do these arguments affect Minsotspolitiki? At first glance, it may seem that the Ministry of Social Policy changed its course in the letter No. 34/0/2319/13 dated May 21, 2019. It directly recognizes: "the current labor legislation does not provide for the obligation of an individual entrepreneur to have a staffing table."

   Fine! But ... not so simple as it seems. Immediately after the correct conclusion comes the mysterious text: “Admission to a position not stipulated by the staff list is possible on the basis of a civil law agreement. When performing work, providing services on the basis of an employment contract, the requirements of labor legislation must be observed, and when entering into a civil contract for performing a certain job or providing certain services, it is necessary to be guided by civil legislation. ”

   It seems that the Minsotspolitiki left itself a “space for maneuver”. They say that if the individual entrepreneur exclusively attracts individuals to perform work / services under civil law contracts (and in principle does not practice labor relations), then he really doesn’t need a staff list.

   In this regard, we consider it a bit early to relax. Indeed, there are arguments in favor of the fact that the current legislation does not require from the individual employer an obligatory presence of the staffing table. But checking, apparently, will continue to oppose it.

   Nevertheless, in our opinion, the "Trudoviks" will oppose this in every way. To avoid such situations, law firm "Prikhodko and Partners" provides outsourcing services for accounting, as well as, you can order a separate service for registration of all primary documentation when you design an employee.