To this day, many are tormented by the question - Do I need to make an entry in the work book of an individual entrepreneur about his career.
QUESTION: In the case when an individual entrepreneur does not have employees, should he keep a work book on himself? If a person has stopped working as an individual entrepreneur and goes to work with another employer, is it necessary for the new employer to make an entry in the labor book about his past work as an individual entrepreneur?
In accordance with Art. 66 of the Labor Code of the Russian Federation, the employer (with the exception of employers - individuals who are not individual entrepreneurs) maintains work books for each employee who has worked for him for more than five days, in the case when the work with this employer is primary for the employee. Therefore, if an individual entrepreneur employs workers under an employment contract, he is obliged to keep work books for them, in the manner established by the Government of the Russian Federation. The form, procedure for maintaining and storing labor books, as well as the procedure for the production of forms of labor books and providing them to employers, were approved in the Decree of the Government of the Russian Federation dated April 16, 2003 No. 225 "On labor books".
In article 66 of the Labor Code of the Russian Federation, and in accordance with it and in the Decree of the Government of the Russian Federation of April 16, 2003. No. 225 "On work books" it is indicated that the work book contains information about the employee, his work, transfers to another permanent job and the dismissal of the employee, as well as the grounds for termination of the employment contract and information about awards for success in work. Information about penalties in the work book is not entered, except in cases where the disciplinary sanction is dismissal. At the request of the employee, information about part-time work is entered into the work book at the place of main work on the basis of a document confirming the part-time job.
As can be seen from the above norms, all entries in the work book are made in relation to a particular employee. In order to obtain the status of an employee, it is necessary to enter into an employment relationship with the employer by concluding an employment contract. Article 56 of the Labor Code of the Russian Federation says that an employment contract is an agreement between an employee and an employer, according to which the employer agrees to provide the employee with work according to the stipulated labor function, to ensure the working conditions stipulated by labor legislation and other regulatory legal acts containing labor law norms, collective contract, agreements, local regulations and this agreement, timely and in full to pay the employee wages, and the employee undertakes to personally perform the labor function defined by this agreement, to comply with the internal labor regulations applicable to this employer. The parties to the labor contract are the employer and employee (Article 56 of the Labor Code of the Russian Federation). Due to the fact that the legislator determined the status of an employer, not an employee, for an individual entrepreneur, he accordingly cannot conclude an employment contract with himself (this will contradict the labor code, as there will be no other party to the employment relationship), therefore he has no legal basis for a work book on himself.
As for the fact that the workbook of the established form is the main document on the work activity and the work experience of the employee, this again relates only to the employee. Since the legislator has determined his legal status to an individual entrepreneur, he will have his documents established by law in confirmation of his labor activity. Based on Art. 23 of the Civil Code of the Russian Federation, a citizen has the right to engage in entrepreneurial activity without forming a legal entity from the moment of state registration as an individual entrepreneur. According to the Decree of the Government of the Russian Federation of June 19, 2002 No. 349 "On the approval of forms and requirements for paperwork used in state registration as individual entrepreneurs", form No. 61001 "Certificate of state registration of an individual as an individual entrepreneur" is established, as well as No. 65001 "Certificate of state registration of the termination by an individual of activity as an individual entrepreneur."
As for the seniority of the entrepreneur, according to Art. 2 of the Federal Law of December 15, 2001 No. 166-ФЗ "On State Pension Provision in the Russian Federation" work experience is work experience - taken into account when determining the right to certain types of pensions for state pension provision, the total duration of the periods of work and other activities that are counted in the insurance length of service to receive a pension as provided for by the Federal Law "On Labor Pensions in the Russian Federation"
In accordance with Art. 2 of the Federal Law of December 17, 2001 No. 173-ФЗ "On labor pensions in the Russian Federation", insurance period is the total length of the periods of work and (or) other activities taken into account when determining the right to a labor pension during which insurance contributions to the Pension Fund of the Russian Federation were paid, as well as other periods credited to the insurance period. Based on Art. 6 of the Federal Law of December 15, 2001 No. 167-FZ "On Compulsory Pension Insurance in the Russian Federation", compulsory pension insurance policyholders are: "... individual entrepreneurs, lawyers, notaries engaged in private practice."
Thus, the main document confirming the labor activity and seniority of an individual entrepreneur will be a certificate of state registration of an individual as an individual entrepreneur.
In this case, another question arises: If a person has ceased activities as an individual entrepreneur and enters a job with another employer, does the new employer need to make an entry in the labor book about his past work as an individual entrepreneur?
There are two points of view regarding whether to make an entry in the work book of an individual entrepreneur:
As mentioned above, an individual entrepreneur is an employer, not an employee. In the RF Labor Code, article 66, it is established that information on the employee, the work performed by him, transfers to another permanent job and on the dismissal of the employee, as well as the grounds for termination of the employment contract and information on awards for success in the work are entered in the labor book. Therefore, entering information into the work book not prescribed by law can be regarded as a violation.
A person who has entered into an employment contract with an employer becomes an employee. If the person’s previous work activity is not reflected in the workbook, then a situation may arise that the employer hiring the former individual entrepreneur worsens his position compared to other employees, since the total length of service that is necessary for calculating, for example, benefits is not taken into account for temporary disability, for pregnancy and childbirth, and in accordance with the Federal Law of December 29, 2006 No. 255-ФЗ "On providing benefits for temporary disability, for pregnancy and childbirth of citizens subject to compulsory social insurance." However, the said law does not make the calculation of seniority in the payment of the specified benefits strictly dependent on the indication of this seniority in labor books. So, according to Art. 16 of the Federal Law of December 29, 2006 No. 255-ФЗ "On the provision of temporary disability benefits, maternity benefits for citizens subject to compulsory social insurance" in the insurance record for determining the size of temporary disability benefits, maternity benefits (insurance record) are included in the periods of work of the insured person contract, state civil or municipal service, as well as periods of other activities during which a citizen was subject to compulsory insurance in case of temporary disability and in connection with motherhood. In accordance with this law, the Order of the Ministry of Health and Social Development of the Russian Federation of 06.02.2007 was adopted. No. 91 "On approval of the rules for calculating and confirming the length of insurance for determining the amount of temporary disability benefits, maternity benefits", according to which (paragraph 11) periods of activity of individual entrepreneurs, individual labor activity, labor activity under individual or group rental conditions are confirmed:
a) for the period until January 1, 1991 - a document of financial authorities or certificates of archival institutions on the payment of social insurance payments;
b) for the period from January 1, 1991 to December 31, 2000, and also for the period after January 1, 2003 - by a document of the territorial body of the Social Insurance Fund of the Russian Federation on the payment of social insurance payments.
On fixing in the workbook the insurance experience of an employee - a former individual entrepreneur, confirmed by the indicated documents, in case of his employment, in the Decree of the Government of the Russian Federation of April 16, 2003. No. 225 "On labor books", as well as in the Decree of the Ministry of Labor of the Russian Federation of October 10, 2003. No. 69 "On approval of the Instructions for filling out work books" does not contain instructions. However, this insurance experience may be reflected in the employee’s personal card (form T-2). So, according to the Guidelines for the application and filling out forms of primary accounting documentation (Decree of the Goskomstat of the Russian Federation of January 5, 2004, No. 1) work experience (general, continuous, giving the right to a bonus for long service, giving the right to other benefits established by the organization, etc. .) is calculated on the basis of entries in the workbook and (or) other, confirming the relevant experience of the documents.
source: http: //alianskadrovic.ru/trudovie-knijki/zapis-v-trudovoj-knizhke-individualnogo-predprinimatelya
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