Екатерина Чернявская
Верховный суд Российской Федерации пришел к выводу, что договоры возмездного оказания услуг между ИП и юрлицом фактически являются трудовыми в случае, если в них прописан обязательный для соблюдения график работы и вознаграждение формируется за фактически отработанные дни, а не за конкретную выполненную работу или оказанную услугу (определение ВС РФ от 27 февраля 2017 г. № 302-КГ17-382). Это касается случаев, когда в спорных договорах:
предусмотрено систематическое исполнение услуг с их регулярной оплатой в одни и те же даты каждого месяца; предмет договоров содержит четкое указание на специальности и профессии (к примеру, бухгалтер, кассир, менеджер-логист), а также на конкретный вид поручаемой работнику деятельности (в частности, прием, сортировка, хранение, отгрузка лома металлов и т. д.); на исполнителей возложена материальная ответственность за недостачу вверенного им имущества, а также за ущерб, возникший у заказчика в результате возмещения им ущерба иными лицами.
В каких случаях структурные подразделения организации (в том числе филиалы и представительства), не являющиеся работодателями, вправе издавать локальные нормативные акты по тем или иным вопросам? Ответ можно узнать в «Энциклопедии решений. Трудовые отношения, кадры» интернет-версии системы ГАРАНТ. Получите полный доступ на 3 дня бесплатно!
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Кроме того, суд обратил внимание на то, что по рассмотренному делу в течение календарного года размер вознаграждения ИП существенно не менялся или не был вовсе изменен. ВС РФ указал, что формирование вознаграждения за фактически отработанные дни противоречит правилам оплаты услуг по договорам гражданско-правового характера, согласно которым оплате подлежит выполнение конкретной работы или услуги.
Cуд сделал вывод о наличии обязательного графика работы в спорном договоре в силу того, что исполнители на протяжении продолжительного периода времени ежедневно (кроме воскресенья) оказывали свои услуги в течение полного рабочего дня с 09.00 до 18.00 с перерывом на обед с 13.00 по 14.00. При этом оставить рабочее место они могли только при уведомлении руководства.
Совокупность указанных фактов привела ВС РФ к выводу о том, что целью заключенного спорного договора было осуществление ИП трудовой деятельности в качестве наемных работников, а не возмездное оказание услуг.
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