Legal relations arising when a person is accepted for civil service are regulated by Article 79-FZ. Chapter 5 of this normative act is devoted to the peculiarities of filling out a service contract and fulfilling its conditions.
Legal status of civil servant
State civil servants are persons hired by government agencies. These entities are recruited employees who enjoy the protection of their rights from all kinds of abuse and discrimination.
As established by Part 7 of Article 11 of the Labor Code, the norms of labor law apply to state and municipal employees with some features enshrined in special federal laws and other legal documents regulating civil service. In this regard, some lawyers rightly point out the need to consolidate the rules governing this area in a separate chapter of the Labor Code.
Meanwhile, the Federal Law "On the State Civil Service of the Russian Federation" 79-FZ provides for a different provision. Article 73 of the normative act stipulates that laws and other legal acts of constituent entities of the Russian Federation, which contain the rules governing labor relations, are applicable to civil service entities in the part not regulated by the said Federal Law.
Concept and parties to a service contract
For the first time, the word “contract” is enshrined in Article 12 of Federal Law No. 58. According to the norm, citizens who speak the official state language of the Russian Federation and have reached the age established by law for a particular type of state activity can enter the civil service under the contract. As you can see, the article gives the general characteristics of the contract. The definition itself is normal.
The concept and parties to a service contract are defined in the Federal Law No. 79. Currently, the terms “contract” and “contract” are considered synonyms.
The definition is disclosed in Article 23 of the Federal Law No. 79. According to the norm, a service contract is an agreement concluded by a representative of a tenant and a citizen wishing to enter the service of a state structure. It says about his service and occupation of the corresponding position. This definition contains an indication of the participants in the legal relationship. They are the candidate for the position and representative of the employer.
Features of participants
In accordance with the provisions of Part 2 of Article 1 of the Federal Law "On the State Civil Service of the Russian Federation" 79-FZ, the representative of the employer is the head of the state agency, a citizen who replaces the public position, or a representative of the head or person acting as the employer on behalf of the Russian Federation or constituent entity of the Russian Federation . It is worth noting that the provisions enshrined in Article 23 of the specified normative act do not quite correspond to the content of Part 2 of Art. 1.
From the foregoing, it follows that the client’s principal is involved in the conclusion of the service contract not on his own behalf, but on behalf of the person he represents. In other words, the obligations and rights under the agreement arise with the relevant state agency with which the citizen entered into legal relations. Here you need to contact the Civil Code. Given the content of article 182 of the Code, the Russian Federation or its region acts as the employer of a civil servant. To this extent, paragraph 3 of article 10 of the Federal Law No. 58 is consistent to a certain extent. According to it, the corresponding subject of the Russian Federation acts as the tenant of a federal civil servant.
Taking into account the foregoing, it is impossible to recognize the representative of the employer as one of the parties to the agreement, since the party is exclusively a state agency.
Content and form of service contract
They are referred to in article 24 of the Federal Law No. 79. The norm provides a list of information that must be indicated in the service contract. This is primarily the name of the citizen who enters the service, and the name of the state agency (name of the representative of the employer).
The agreement must also establish the following essential conditions:
- The name of the position that the citizen will replace, the name of the unit in which it is established.
- Date of commencement of official activity.
- Responsibilities and rights of a citizen, job regulations.
- Conditions and types of medical and other insurance of a person.
- Duties and rights of the representative of the employer.
- Conditions of employment, benefits and compensation established for work in difficult, dangerous or harmful conditions.
- Mode of rest and work. Information about this should be present in the agreement if the schedule of the civil servant differs from the schedule of the state agency.
- The conditions for the payment of remuneration, enshrined in Federal Law No. 79 and other regulatory acts. This paragraph should indicate the size of the salary, allowances and other deductions, including those provided for the effectiveness of the civil servant.
- Conditions and types of social insurance.
Obligations and rights of the parties
A service contract is a document that acts as the basis for the emergence of legal relations between a citizen and a state body. Consequently, the obligations and rights of participants must be prescribed in the agreement.
The representative of the employer must create conditions for the citizen to perform the service, to fulfill duties in a replaced position in accordance with Federal Law No. 79 and other legal acts. The state agency, to whose staff the person enters, is obliged to timely and fully pay remuneration, provide the employee with state guarantees.
In turn, a citizen who has concluded a service contract must fulfill his duties in accordance with the regulations and comply with the internal regulations of the state structure.
The agreement establishes the liability of the parties for non-fulfillment or improper fulfillment of obligations undertaken by law. It is forbidden to demand that a public servant take actions that are not provided for in the contract and regulations.
The agreement is made in writing in 2 copies, each of which must be signed by the participants. One copy is handed over to the civil servant, the second remains with the representative of the employer and is stored in the personal file of the citizen.
Additional items
The law allows for the inclusion of special conditions in a service contract. This is necessary when the service takes place in specific conditions. Among the additional conditions may include the following:
- Mandatory test for admission to the service.
- Preservation of confidentiality of information classified as state, official and other secrets protected by law, if its use is provided for in the job regulations.
- The obligation of a citizen to undergo civil service after completing training at a vocational education institution is not less than the period established by the contract, if the training was financed from budgetary funds.
- Establishment of performance indicators of a person’s professional activities and related payment terms.
Changes to the essential terms of the service contract are made solely by agreement of the parties. Other points may be enshrined in the contract, the content of which does not contradict the current legislation.
Nuances
The law provides for two types of service contracts: fixed-term and indefinite. In the first case, the content of the agreement should indicate the reasons for which this type of agreement is being drawn up. In addition, the duration of the service contract is indicated.
Fixed-term contract: features
This type of agreement is concluded for a period of one to 5 years, unless a different time period is established by federal law. A fixed-term contract is drawn up in the case when legal relations concerning the civil service cannot last indefinitely, taking into account the working conditions and the category of the post.
Federal Law No. 79 establishes that for a number of posts in the “advisers” (“assistants”) and “managers” categories, a service contract is drawn up for a specific term. The same type of agreement is concluded in case of filling a position of an absent civil servant. A fixed-term contract is executed in the performance of duties on the following posts:
- After completion of training, a person who has concluded an agreement with a vocational education institution, one of the conditions of which was an obligation to subsequently undergo civil service.
- In the diplomatic missions and consulates of the Russian Federation, other missions of Russia and government agencies located abroad.
- In the state structure, formed for a certain period or for the implementation of specific functions and tasks.
- Temporary, for which part 14 of article 50 of the Federal Law No. 79 provides for a special procedure for the payment of remuneration.
Important points
With a civil servant filling a position in accordance with an agreement drawn up for an indefinite period of time and reaching 60 years, this agreement is renegotiated for a period of one to 5 years.
Legislation does not allow people aged 65 years to be in the civil service. Upon reaching 60 years of age or the maximum age of being in the office, upon expiration of the term of the service contract by the decision of the representative of the employer and with the consent of the citizen, a labor agreement is concluded for a certain period to fill a position that is not related to public service. In this case, the qualifications of the person, the results of his professional activities, health status and other significant circumstances are taken into account.
Features of the application of standards
When analyzing paragraph 1 of part 2 of article 9 of the Federal Law No. 79, many lawyers pay attention to the union "or", which is not consistent with paragraph 1 of part 4 of Art. 25 of the same normative act. From these provisions it follows that not with some, but with all managers, you can conclude a contract for an indefinite and a specific period.
In accordance with paragraph 2 of Part 2 of Art. 9, with advisers (assistants) the agreement is drawn up for a period limited by the duration of the authority of the head. But, as indicated above, the latter can conclude both an urgent and an unlimited contract. Accordingly, in the opinion of lawyers, it is advisable to provide for a norm in the law fixing the possibility of drawing up a contract with advisers (assistants) also for an indefinite period.
Order of registration
The rules governing the procedure for concluding a contract are enshrined in Article 26 of Federal Law No. 79. According to the norm, the basis for drawing up an agreement is the act of the state agency on the appointment of a citizen to the position of civil service. Upon entering into a contract, the person entering the service must present to the representative of the employer:
- Statement. It indicates the request for the adoption of a citizen in the civil service and his replacement of a specific position.
- Application form approved. The document is filled out and signed by the candidate himself.
- Passport.
- OPS insurance certificate and work book. These documents are not provided by first-time job seekers.
- St. INN.
- Documents on military registration (for those liable for military service, subject to conscription).
- Education document.
- Certificate of income, property and property obligations.
In some cases, taking into account the specifics of the conditions for passing the civil service, other documents may be required from a citizen when drawing up an agreement.
The content of the contract should not worsen the conditions of service, infringe on the rights of a citizen provided for by domestic law.
The agreement comes into force from the date of its signing, unless otherwise agreed by the parties or is not fixed by the rules.
At the conclusion of the contract, the representative of the employer must familiarize the citizen with the work schedule, other legal documents relating to the performance of his professional tasks. After appointment to the appropriate position, a civil servant is issued a certificate of the established form.
Trial period
It can be established in the act of the state structure, in the staff of which a citizen is enrolled. The trial period is designed to verify the qualifications of the person in the position for which he claims to be filled. The duration of the period can be 3-12 months.
If there is no indication in the act of the state institution on the establishment of a probationary period, a citizen is deemed to be accepted for service without trial. At the time of the audit, the provisions of the Federal Law No. 79, other laws and legal acts on public service apply to the candidate.
Exceptions
A trial period is not set for:
- Pregnant women.
- Citizens who completed training in vocational education institutions and enter the civil service for the first time on the basis of a training agreement with an obligation to subsequently undergo civil service.
- Citizens and officials applying for positions of categories "managers" and "advisers" ("assistants"), replaced for a certain period.
- Civil servants transferred to a state agency in connection with the liquidation or reorganization of their previous place of work or reduction.
The trial period may not be established in other cases stipulated by law.
Special rules
For admission to civil service positions, except for situations stipulated by part 3 of Article 27 of the Federal Law No. 79, to persons transferred from another government agency, the test may be set for 3-6 months.
Upon completion of the audit, if a person does not have a class rank corresponding to his post, a qualification exam is held. According to its results, a civil servant is assigned the rank.
The trial period does not include periods of temporary incapacity for work and other periods in which he actually did not fulfill his duties.
Employer Representative Rights
If the test results are unsatisfactory, the civil servant may be given the position that he had previously replaced. In addition, before the end of the test, the representative of the employer is also entitled to terminate the agreement with the citizen. In the event of termination of the service contract, the civil servant is notified in writing. The legislation requires notification of termination of the agreement at least 3 days in advance. At the same time, the notification should indicate the reasons why the corresponding citizen was recognized as not having passed the test. The civil servant has the right to challenge the decision of the representative of the employer in court.
Conclusion
For a civil servant, a service contract is one of the main documents regulating his professional activities. This agreement, as well as the labor contract, establishes the essential working conditions, including the order and amount of remuneration, the particulars of service, the rights and obligations of participants in official legal relations. The tasks and functions of a civil servant are specified in the instructions and regulations.
Federal Law No. 79 establishes the rules for executing a contract. Violation of them or improper implementation may result in invalidation of the document. It must be emphasized that the legal basis for concluding the contract is a special act of the state body that accepts a citizen for the position of civil service. In its absence, the execution of the agreement is recognized as illegal.
Upon admission to the civil service, a test may be established for a candidate. It allows you to check the conformity of the person to the position that he wants to fill. Test conditions can be prescribed directly in the contract or secured by a separate act. In the case of a satisfactory verification result, the person will be deemed to be enrolled in the state body.