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Work permit for seconded foreigners


Despite the difficult political situation, Ukraine is still attractive for foreign capital, and therefore for the employment of foreigners.

As a rule, foreigners are employed in Ukraine according to the classical scheme, that is, they conclude an employment contract and work in the state. But with the globalization of international business, secondment agreements are becoming more common.

What does it mean? Secondment of personnel, or secondment, is a temporary transfer of an individual ("Secondment") from one employer ("Sending Company") to another employer ("Client"), in which the Secondment of the Secondment is supposed to return to the first employer. In this case, the seconded person remains on the staff and receives a salary from the sending company. The Sending Company, in turn, enters into an agreement with the Client, according to which the seconded person performs labor functions for the Client for a certain period of time, and the Client agrees to reimburse the costs of wages paid to the seconded Sending Company, often taking into account additional costs. The secondment requires the Secondary to be subordinate to the management and internal regulations of the Client, as well as to fulfill the range of work duties entrusted by the Client. The only thing that connects the seconded and the sending company during this period is an employment contract and payment of wages.

Thus, foreign specialists can work in Ukraine either through actual employment in a Ukrainian company, or by performing a certain amount of work (services) on the basis of an agreement concluded between a Ukrainian and a foreign company. The second way is attractive for those foreigners who come to the territory of Ukraine in order, for example, to share their experience and skills with Ukrainian colleagues in various industries or to introduce new technologies in production.

However, the registration of such a category of foreign employees is still an unregulated and complex process for some companies, mainly due to the ambiguity of the application of legislation.

And in the case of employment of a foreigner in a Ukrainian company, and in the case of his work according to the secondment, the Ukrainian company must obtain a permit to use the labor of a foreigner.

What is the procedure for obtaining a work permit for a seconded foreigner?

The permit is obtained in accordance with the Law of Ukraine "On Employment of the Population" as amended on September 27, 2017, since September 27, 2017, the Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine regarding the elimination of barriers to attracting foreign investment" came into force.

To obtain a permit, a Ukrainian company submits the following documents to the employment center:

1) an application in the form established by the Cabinet of Ministers of Ukraine;

2) copies of the pages of the passport of a foreigner or stateless person with personal data, together with a translation into Ukrainian, certified by a notary;

3) color photograph of a foreigner or stateless person measuring 3.5 x 4.5 centimeters;

4) a copy of the agreement (contract) concluded between the Ukrainian and foreign business entities, which provides for the use of labor of foreigners sent by a foreign employer to Ukraine to perform a certain amount of work (provision of services).

Here it is worth paying attention to the legal conflict in the definition of the list of documents in article 42-2 of the Law of Ukraine "On employment of the population", the first part of which determines the general list of documents, which includes a draft labor contract with a foreigner. If we do not go into the legal nature of the relationship between the seconded employees and the Ukrainian company, then we can assume that in order to obtain a permit for this category of foreigners, it is necessary to submit a copy of the employment contract. And this does not correspond to the status of seconded employees. As already mentioned above, with a second house, a foreigner remains in an employment relationship with a foreign company, which is obliged to pay him wages and charge all the necessary taxes. With the Ukrainian company he is bound only by obligations that come from the agreement on the provision of personnel (secondment of personnel, secondment). The Ukrainian company pays only for the services of a foreign company in the provision of personnel. Failure to submit a copy of the employment contract could formally lead to refusals to issue permits, but the employment centers received an order not to require this document, since this does not correspond to these legal relations.

Thus, it is not necessary to submit to the employment center a copy of the draft employment contract with the seconded employee and, accordingly, there is no need to conclude an employment contract after obtaining a permit.

There is a practice that, in the presence of a secondment agreement, a secondment sent to a foreigner is formalized as an employee of the receiving company and an additional labor contract is concluded with him as with a regular one.

an employee. In this regard, the Ukrainian company assumes all existing obligations of the employer and undertakes to pay such a foreigner wages and comply with all the requirements of the current legislation. Such a situation should not be allowed, because such double registration can entail negative consequences for the company. So, if, having registered a seconded foreigner on the staff, a Ukrainian company does not pay wages, does not charge taxes, then it is brought to financial and administrative responsibility.

As for the agreement itself for the provision of personnel by a foreign Ukrainian company, this is a foreign economic agreement concluded in simple written form in two languages, one of which must be Ukrainian. A notarized copy of this agreement is submitted to the employment center.

From a business point of view, the secondment provides the Ukrainian company with advantages, allowing it to reduce the number of its staff and taxes levied in connection with payroll. The procedure for obtaining a permit to use the labor of seconded workers is relatively simple, and a permit for such workers can be issued for the duration of the secondment agreement, but not more than three years.



Yakubova Sevinj

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