Mandatory clauses of a fixed-term employment contract. How to draw up a fixed-term employment contract

1. Article 59 of the Labor Code of the Russian Federation contains two parts, each of which provides for different types of work (cases), for the performance of which a fixed-term employment contract is concluded with an employee.

The lists of works (cases) provided for in both Part 1 and Part 2 are not exhaustive. The Labor Code or other federal laws may also provide for other cases where the conclusion of a fixed-term employment contract is either mandatory by law or is allowed by agreement of the parties to the employment contract. Since the article refers to the Labor Code or other federal law, neither the law of the constituent entity of the Russian Federation, nor the decree of the President of the Russian Federation, nor the decree of the Government of the Russian Federation, nor any other subordinate regulatory legal act can establish any additional grounds (cases) for concluding a fixed-term employment contract .

2. Cases (types of work) listed in Part 1 of Art. 59 of the Labor Code of the Russian Federation, meet the general criterion for concluding a fixed-term employment contract, formulated in Part 2 of Art. 58 TK. That is, all the cases listed in it determine the urgent nature of the labor connection.

Thus, the conclusion of a fixed-term employment contract in the cases listed in paragraph 1 of this article is due to the very nature of the work or the conditions for its implementation, and therefore is mandatory.

Part 1 Art. 59 of the Labor Code of the Russian Federation names 11 specific cases when a fixed-term employment contract is concluded with an employee:

• 1) for the period of performance of the duties of a temporarily absent employee. Such an employment contract is concluded when an absent employee, in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract, retains a place of work (for example, while an employee is on a long business trip , on maternity leave). The term of the employment contract in this case is made dependent on the time of the return of the absent employee to the performance of his labor (service) duties. Since the law speaks of the temporary absence of an employee who retains the place of work (position), a fixed-term employment contract cannot be concluded to perform duties in a vacant position until another permanent employee is hired for this position;

2) to perform temporary (up to 2 months) work, as well as seasonal work, when, due to natural conditions, work can only be carried out for a certain period (season), which, as a rule, does not exceed 6 months (see comments to Art. 293).

The conclusion of a fixed-term employment contract for a period of up to 2 months is possible provided that the work is obviously temporary in nature, i.e. it is known in advance that it will last no more than 2 months (for example, during the preparation of the annual report). At the same time, in the contract, by agreement of the parties, a specific term of the employment contract must be determined within 2 months (3 weeks, 1 month, 1.5 months, etc.).

It will be illegal to conclude a fixed-term employment contract for up to 2 months to perform work that is permanent for the employer.

The conclusion of a fixed-term employment contract for the performance of seasonal work is allowed provided that these works are provided for by a special list of seasonal work. Lists of seasonal work, incl. certain seasonal works, which can be carried out during a period (season) exceeding 6 months, and the maximum duration of these separate seasonal works are determined by sectoral (intersectoral) agreements concluded at the federal level of social partnership (part 2 of article 293, see comment. To her).

The conclusion of a fixed-term employment contract for a certain season to perform work not covered by the named list will be considered illegal;

• 3) with persons sent to work abroad. It does not matter to which organization abroad the employee is sent. These can be diplomatic missions and consular offices of the Russian Federation abroad, as well as representative offices of federal executive authorities and state institutions of the Russian Federation, commercial organizations, scientific and educational institutions, etc.;

4) for carrying out work that goes beyond the normal activities of the employer, as well as for carrying out work related to a deliberately temporary (up to 1 year) expansion of production or the volume of services provided.

In this case, the usual activities of the employer should be understood as such types of work that correspond to the main activities of the organization, enshrined in its charter.

As an example of work that goes beyond the normal activities of the organization, the law calls the reconstruction, installation, commissioning. Depending on the nature (type) of the ordinary activities of the organization, this may be other work, for example, repair, construction. However, in all cases, work that goes beyond the normal (main) activities of the organization, for the performance of which fixed-term employment contracts may be concluded, must be of a temporary (urgent) nature. Since the law does not establish any special deadline for which such an employment contract can be concluded, the term of the employment contract is determined in each specific case by agreement of the parties based on specific circumstances and the period of time during which there remains a need to perform work outside the ordinary activities of the organization. Here, the general rules on the deadline for the employment contract, established by Art. 58 TC, i.e. 5 years.

Unlike an employment contract concluded for work that goes beyond the normal activities of the employer, the term of an employment contract concluded in connection with the need to temporarily expand production or the volume of services provided is limited. It cannot exceed one year. This is due to the fact that work under such an agreement is carried out as part of the normal activities of the organization and the need to expand production or the volume of services provided is limited to certain time limits, known to the employer.

The specific term of the employment contract for the performance of work related to the obviously temporary expansion of production or the volume of services provided, within one year, is determined by agreement of the parties. For example, due to the increase in the number of tourists in the summer and the expansion in connection with this volume of services provided, hotels, cafes, restaurants, transport organizations, etc. can hire an additional number of workers by concluding employment contracts with them for a certain period (1, 2, 3 months, etc.);

5) with persons entering work in organizations created for a predetermined period of time or to perform a predetermined job.

The fact that an organization is established for a fixed term or only to perform certain work should be recorded in the charter of this organization. The charter of the organization also determines the specific period of time for which it was created or during which the work will be completed, the implementation of which is the purpose of creating the organization (for example, for 2, 3, 4 years).

The term of an employment contract with persons entering organizations created for a known period of time or to perform a known work is determined by the period for which such an organization was created. Therefore, the termination of the employment contract with the specified employees on the basis of the expiration of the term of the employment contract can be carried out if this organization really ceases to operate due to the expiration of the period for which it was created, or the achievement of the goal for which it was created, without transfer of rights and obligations in the order of succession to other persons (clause 14 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2);

6) with persons hired to perform a deliberately defined work in cases where its performance (completion) cannot be determined by a specific date.

In these cases, the employment contract with the employees must indicate that it is concluded for the duration of this particular work (for example, during the repair of an office, during the construction of an object). The end (completion) of the specified work will be the basis for termination of the employment contract due to the expiration of its validity. At the same time, it should be borne in mind that if during the trial the fact of multiple conclusion of fixed-term employment contracts for a short period of time to perform the same labor function is established, the court has the right, taking into account the circumstances of each case, to recognize the employment contract as concluded for an indefinite period ( paragraph 14 of the Decree of the Plenum of the RF Armed Forces dated March 17, 2004 N 2);

7) to perform work directly related to the internship or vocational training of an employee. In this case, the employment contract is concluded for the period of internship or vocational training.

Internship or vocational training of employees in an organization can be carried out both on the basis of an agreement with another organization that sent its employee for an internship or vocational training, and on the basis of an apprenticeship agreement concluded by the organization with the student himself (see comments to Article 198 - 208);

• 8) in case of election for a certain period to an elected body or to an elective position for a paid job. For example, for the position of rector of a state or municipal higher educational institution, dean of a faculty or head of a department of a higher educational institution. According to Art. 12 of the Law on Vocational Education, art. 332 of the Labor Code, these positions are filled on the basis of elections held in the manner prescribed by the charter of the educational institution (see Art. 17, 332 of the Labor Code);

9) upon admission to work related to the direct support of the activities of members of elected bodies or officials in state authorities and local governments, in political parties and other public associations. In this case, we are talking about work related to the direct support of the activities of members of these bodies or officials. This means that not all persons applying for work in these elected bodies can be concluded a fixed-term employment contract. We are talking about contracts concluded for the performance of such work, which is directly aimed at ensuring the activities of members of the relevant elected bodies or officials (for example, work as an assistant, secretary, adviser to the governor; assistant, assistant to the chairman of the party).

The term of the employment contract in these cases is established by agreement of the parties within the term of office of the relevant elected body or official.

Early termination of the powers of certain bodies or officials should also entail the termination of employment contracts with persons hired to ensure this activity;

10) with persons sent by the bodies of the employment service to work of a temporary nature and public works. Such works are organized as additional social support for citizens looking for work. The term of the employment contract for the performance of such work is determined by agreement of the parties.

If the work to which the citizen is sent by the employment service is of a permanent nature, the conclusion of a fixed-term employment contract with him is not allowed;

• 11) with citizens sent for alternative civilian service. When concluding an employment contract with this category of citizens, it should be borne in mind that the status of citizens undergoing alternative civilian service is established by the Federal Law of July 25, 2002 N 113-FZ "On Alternative Civil Service" (SZ RF. 2002. N 30. Article 3030) in accordance with the Constitution of the Russian Federation. Alternative civilian service is a special type of labor activity in the interests of society and the state, carried out by citizens in return for conscription military service. The procedure for sending citizens to alternative civilian service is determined by the named Law, other federal laws, the Regulations on the procedure for performing alternative civilian service, approved. Decree of the Government of the Russian Federation of May 28, 2004 N 256 (SZ RF. 2004. N 23. Art. 2309), and other regulatory legal acts of the Russian Federation adopted in accordance with them.

The labor activity of citizens undergoing alternative civilian service is regulated by the Labor Code, taking into account the specifics provided for by the said Federal Law.

In accordance with Art. 5 of this Law, the term of alternative civilian service is 1.75 times longer than the term of military service established by the Law on Military Duty and is 21 months for citizens sent for its passage after January 1, 2008. The term of alternative civilian service for citizens undergoing this service in organizations of the Armed Forces of the Russian Federation, other troops, military formations and bodies is 1.5 times higher than the term of military service on conscription established by the Law on Military Duty and is 18 months for citizens sent for its passing after January 1, 2008.

In accordance with the specified terms, the term of the employment contract with citizens sent for alternative civilian service is also determined. When concluding an employment contract, the parties are not entitled to establish a different period of its validity.

3. Unlike part 1 of the commented article, in accordance with which the conclusion of an employment contract for a certain period is mandatory due to the nature of the work to be done or the conditions for its implementation, part 2 of the article provides a list of cases when the conclusion of a fixed-term employment contract is allowed by agreement of the parties . Moreover, by agreement of the parties, a fixed-term employment contract in the cases listed in Part 2 of Article 59 of the Labor Code of the Russian Federation can be concluded without taking into account the nature of the work to be done or the conditions for its implementation. At the same time, it must be borne in mind that such an agreement can be recognized as lawful if there was an agreement between the parties, i.e. if it is concluded on the basis of the voluntary consent of the employee and the employer. If the court, when resolving a dispute on the legality of concluding a fixed-term employment contract, establishes that it was concluded by the employee involuntarily, the court applies the rules of the contract concluded for an indefinite period (clause 13 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2).

According to part 2 of the commented article, by agreement of the parties, a fixed-term employment contract can be concluded:

1) with persons entering work for employers - small businesses (including individual entrepreneurs), the number of employees of which does not exceed 35 people (in the field of retail trade and consumer services - 20 people).

The concept and types of small business entities are defined by the Federal Law of July 24, 2007 N 209-FZ "On the development of small and medium-sized businesses in the Russian Federation" (SZ RF. 2007. N 31. Art. 4006). In accordance with Art. 3 subjects of small and medium-sized businesses - business entities (legal entities and individual entrepreneurs), classified in accordance with the conditions established by this Federal Law, to small enterprises, incl. to micro and medium enterprises.

According to Art. 4 small and medium-sized businesses include consumer cooperatives and commercial organizations entered in the Unified State Register of Legal Entities (with the exception of state and municipal unitary enterprises), as well as individuals entered in the Unified State Register of Individual Entrepreneurs and engaged in entrepreneurial activities without forming a legal entity (hereinafter - individual entrepreneurs), peasant (farm) enterprises that meet the following conditions:

• for legal entities - the total share of participation of the Russian Federation, constituent entities of the Russian Federation, municipalities, foreign legal entities, foreign citizens, public and religious organizations (associations), charitable and other funds in the authorized (share) capital (share fund) of these legal entities should not exceed 25% (with the exception of the assets of joint-stock investment funds and closed-end investment funds), the share of participation owned by one or more legal entities that are not small and medium-sized businesses should not exceed 25%;
• the average number of employees for the previous calendar year should not exceed the following limit values ​​for the average number of employees for each category of small and medium-sized businesses:
  • a) from 101 to 250 people inclusive for medium-sized enterprises;
  • b) up to 100 people inclusive for small businesses; among small enterprises, micro-enterprises stand out - up to 15 people;
• proceeds from the sale of goods (works, services) excluding value added tax or the book value of assets (residual value of fixed assets and intangible assets) for the previous calendar year should not exceed the limit values ​​established by the Government of the Russian Federation for each category of small and medium-sized businesses.

Newly created organizations or newly registered individual entrepreneurs and peasant (farm) enterprises during the year in which they are registered can be classified as small and medium-sized businesses if their indicators of the average number of employees, proceeds from the sale of goods (works, services) or balance sheet value of assets (residual value of fixed assets and intangible assets) for the period elapsed from the date of their state registration, do not exceed the limit values ​​established by the named article.

The average number of employees of a micro-enterprise, small enterprise or medium-sized enterprise for a calendar year is determined taking into account all its employees, incl. employees working under civil law contracts or part-time jobs, taking into account the actual hours worked, employees of representative offices, branches and other separate divisions of the indicated micro-enterprise, small enterprise or medium-sized enterprise;

2) with pensioners entering work by age, as well as with persons who, for health reasons, in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, are allowed to work exclusively of a temporary nature.

It is necessary to pay attention to what the law says about old-age pensioners entering work, i.e. about those who for the first time or again (after dismissal) conclude an employment contract with this employer. In this regard, the employer is not entitled, incl. and with the consent of the employee who is in an employment relationship with him and has reached retirement age, renegotiate the employment contract concluded with this employee for an indefinite period for a fixed-term employment contract. At the same time, it should be borne in mind that the number of pensioners by age includes persons who have reached retirement age and who, in accordance with pension legislation, have been assigned an old-age pension. If a citizen has reached the age required for the appointment of a pension, but in accordance with the pension legislation has not acquired the right to it or the pension has not been assigned to him due to some other circumstances, he cannot be considered a pensioner and, therefore, the rules for concluding a fixed-term employment contract provided for by the commented norm should not apply to him.

The fact that an employee, for health reasons, can perform work of an exclusively temporary nature must be established by a medical report. A medical opinion of this kind has the right to issue only the body or institution to which such a right has been granted (for example, institutions of medical and social expertise).

The term of the employment contract is determined in this case based on the duration that, according to the medical report, is allowed for this employee in accordance with his state of health. The employer does not have the right, at its discretion, to establish for the employee the term of the employment contract of a longer or shorter duration than that prescribed by the medical report;

3) with persons entering work in organizations located in the regions of the Far North and areas equivalent to them, if this is associated with moving to the place of work. Since the law connects the possibility of concluding a fixed-term employment contract with these persons with their moving to the place of work in organizations located in the regions of the Far North and areas equivalent to them, this rule should not apply to citizens permanently residing in these regions and localities. A fixed-term employment contract is concluded with them on the grounds specified in Part 1 of Art. 59 of the Labor Code of the Russian Federation, by agreement of the parties in the cases specified in part 2 of the same article (for example, when applying for a part-time job), as well as in other cases provided for by the Labor Code or other federal laws.

The list of regions of the Far North and areas equated to them was approved by the Decree of the Council of Ministers of the USSR of November 10, 1967 N 1029 (SP USSR. 1967. N 29. Art. 203) and is valid today as amended. Decrees of the Council of Ministers of the USSR of January 3, 1983 N 12 (SP USSR. 1983. N 5. Art. 21) with additions and changes introduced by the legislation of the Russian Federation;

• 4) to carry out urgent work to prevent catastrophes, accidents, epidemics, epizootics, as well as to eliminate the consequences of these and other emergency circumstances (for example, to eliminate the consequences of floods, fires). Since the law does not establish a minimum or maximum period for which an employment contract can be concluded under the specified circumstances, it is determined by agreement of the parties. If the term of the employment contract does not exceed 2 months, the labor relations that have arisen are regulated taking into account the features established by Ch. 45 of the Labor Code (see comments to Art. Art. 289 - 292);
• 5) with creative workers of the media, cinematography organizations, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works in accordance with the lists of works, professions, positions of these workers, approved by the Government Russian Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations. Decree of the Government of the Russian Federation of April 28, 2007 N 252 approved the List of professions and positions of creative workers in the media, cinematography organizations, television and video crews, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, the features of the labor activity of which are established by the Labor Code of the Russian Federation;

6) with heads, deputy heads and chief accountants of organizations. At the same time, it does not matter what the organizational and legal form and form of ownership of these organizations is - a joint-stock company, a limited liability company, a state unitary enterprise, etc.

The validity of the employment contract with the head of the organization in accordance with Part 1 of Art. 275 of the Labor Code is determined by the constituent documents of the organization or by agreement of the parties. That is, by agreement of the parties, the term of the employment contract with the head of the organization is determined if it is not established by the constituent documents of the organization;

• 7) with persons studying full-time education;
• 8) with persons entering a part-time job (on the procedure and conditions for concluding an employment contract for part-time work, see the comments to Articles 282-288).

4. In addition to the cases expressly provided for in part 2 of article 59 of the Labor Code of the Russian Federation, the conclusion of a fixed-term employment contract by agreement of the parties is also allowed in other cases provided for by the Labor Code or other federal law. So, in accordance with Art. 332 of the Labor Code, by agreement of the parties, fixed-term employment contracts may be concluded for filling the positions of scientific and pedagogical workers in a higher educational institution.

5. In accordance with the general rules for concluding a fixed-term employment contract, established by Art. 58 of the Labor Code, a fixed-term employment contract can be concluded either in cases where labor relations cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation, or by agreement of the parties without taking into account the named circumstances in cases provided for by the Labor Code or other federal by law (part 2 of article 59 of the Labor Code of the Russian Federation). However, in some cases, the Labor Code provides for the conclusion of a fixed-term employment contract without taking into account these general rules. So, according to part 14 of Art. 332 of the Labor Code, a fixed-term employment contract is concluded with vice-rectors of a higher educational institution. The said norm is stated in an imperative form, therefore, the conclusion of a fixed-term employment contract with the specified employees is mandatory by virtue of the direct prescription of the law. However, neither by its nature nor by the conditions of performance, work as a vice-rector of a higher educational institution is a job for which it is impossible to conclude an employment contract for an indefinite period. Thus, by providing for the obligatory conclusion of a fixed-term employment contract with vice-rectors of a higher educational institution, the legislator has shown a clear inconsistency in regulating the relations in question (see commentary to Article 332).

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If the reason is not specified, then it is considered that the contract is concluded as temporary without legal grounds.

Required documents

The fact of concluding a temporary contract is also reflected in several other documents.

Statement

The application form is not approved, as is not approved what the employee must. But in practice it is much more convenient when this fact is reflected. For example: I ask you to accept me as an accountant during the absence of a permanent employee.

The rest of the application is written in the usual manner.

Order

After an employment contract is signed with the employee, an order is drawn up for his admission. Usually use the unified form T-1. It indicates that the employee was hired for a while, and for what reason. If the date of dismissal is determined, then it is also indicated in a special cell.

1. Work must not be dangerous or harmful.
2. The working day should not exceed the norms that are established for a certain age.
3. Minors may not be sent on business trips or employed at night.
4. It is also forbidden to engage in overtime work and work on weekends and holidays.

Termination of labor relations due to the expiration of the employment contract does not apply to the initiative of the employer, which means that in this case this procedure is possible without the involvement of the labor inspectorate and the commission on minors.

Pregnant women

Obliges the employer to extend the contract with a pregnant woman until the end of her pregnancy, that is, until childbirth. If a woman receives sick leave for pregnancy and childbirth and goes on appropriate leave, then the contract is extended until it ends. If she returns to work after giving birth, the employer can terminate the contract with her within 7 days.

In order for the contract to be extended, the employee must do the following:

1. Write an application for an extension indicating the reason.
2. Attach a certificate of pregnancy to the application.

The employer has the right to require a certificate of pregnancy every month until its completion.

If the employer does not have the opportunity to extend the employment contract of the pregnant woman, for example, in the event of the departure of the main employee, then before dismissal, he must offer her all available vacancies that suit her, taking into account her position.

pensioners

By agreement of the parties with pensioners by age, a fixed-term contract can be concluded. The term of such an agreement is limited only to a maximum limit of five years.

It is possible to conclude a fixed-term contract with a pensioner only if he finds a job at a new job. If at the time of retirement age he worked in an organization and had an indefinite employment contract, then he cannot be transferred to temporary work.

Leaders

An employment contract with a manager can be temporary for two reasons:

1. By agreement of the parties.
2. In the case when the position of the head is elective.

According to Article 275 of the Labor Code of the Russian Federation, the validity period of such an agreement must be determined by the statutory or other local regulatory documents, respectively, it can be concluded for more than 5 years.

Payment Features

Temporary workers are paid on the basis of the regulations in force in the organization. But at the same time, there are certain nuances when paying vacation compensation.

Compensation for unused vacation

The Labor Code of the Russian Federation makes a reservation only regarding vacations for employees who have concluded an employment contract for less than two months or their work is seasonal. In this case, they are granted leave (compensation) at the rate of 2 calendar days per month, and not 2.33 as in all other cases.

For all other categories of employees who have concluded temporary employment contracts, the general principles for calculating vacations and compensation for them apply.

Vacations and sick days

Since, for obvious reasons, temporary workers may not fall into vacation schedules, they can be provided with rest only in agreement with the employer, especially for those categories whose employment relationship does not exceed six months.

New edition Art. 59 Labor Code of the Russian Federation

A fixed-term employment contract is:

for the duration of the performance of the duties of an absent employee, for whom, in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract, the place of work is retained;

for the duration of temporary (up to two months) works;

to perform seasonal work, when, due to natural conditions, work can only be done during a certain period (season);

with persons sent to work abroad;

for work that goes beyond the normal activities of the employer (reconstruction, installation, commissioning and other work), as well as work associated with a deliberately temporary (up to one year) expansion of production or the volume of services provided;

with persons entering work in organizations created for a known period or to perform a known work;

with persons hired to perform a deliberately defined work in cases where its completion cannot be determined by a specific date;

to perform work directly related to practice, vocational training or additional professional education in the form of an internship;

in cases of election for a certain period to an elected body or to an elective position for paid work, as well as employment related to the direct support of the activities of members of elected bodies or officials in public authorities and local governments, in political parties and other public associations;

with persons sent by the bodies of the employment service to work of a temporary nature and public works;

with citizens sent for alternative civilian service;

By agreement of the parties, a fixed-term employment contract may be concluded:

with persons entering work for employers - small businesses (including individual entrepreneurs), the number of employees of which does not exceed 35 people (in the field of retail trade and consumer services - 20 people);

with pensioners entering work by age, as well as with persons who, for health reasons, in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, are allowed to work exclusively of a temporary nature;

with persons entering work in organizations located in the regions of the Far North and areas equivalent to them, if this is associated with moving to the place of work;

to carry out urgent work to prevent catastrophes, accidents, epidemics, epizootics, as well as to eliminate the consequences of these and other emergency circumstances;

with persons elected by competition to fill the relevant position, held in the manner prescribed by labor legislation and other regulatory legal acts containing labor law norms;

with creative workers of the media, cinematography organizations, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, in accordance with the lists of works, professions, positions of these workers approved by the Government of the Russian Federation Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations;

with heads, deputy heads and chief accountants of organizations, regardless of their organizational and legal forms and forms of ownership;

with persons receiving full-time education;

with crew members of seagoing vessels, inland navigation vessels and mixed (river - sea) navigation vessels registered in the Russian International Register of Vessels;

with persons entering a part-time job;

in other cases provided for by this Code or other federal laws.

Commentary on Article 59 of the Labor Code of the Russian Federation

As mentioned above, the employment contract must also indicate the circumstances (reasons) that served as the basis for its conclusion. In this regard, we note again that the current version of Article 59 of the Labor Code of the Russian Federation contains a list of situations in accordance with which a fixed-term employment contract must or can be concluded.

We emphasize that an employment contract concluded for a fixed period in the absence of sufficient grounds established by the court is considered concluded for an indefinite period.

The conclusion of fixed-term employment contracts in order to evade the granting of rights and guarantees provided for employees with whom an employment contract is concluded for an indefinite period is prohibited. The circumstances under which a fixed-term employment contract can now be concluded by agreement of its parties are set out in part two of Article 59 of the Labor Code of the Russian Federation. Upon expiration, a fixed-term employment contract may be:

terminated in the manner and on the grounds provided for by law, including early (both at the initiative of the employee and at the initiative of the employer);

by agreement of the parties extended for a new period (as a fixed-term contract).

However, if after the expiration of the term of the fixed-term employment contract, none of the parties demanded its termination and the employee continues to perform the assigned work, then the condition on the urgent nature of this employment contract becomes invalid and the latter is further considered concluded for an indefinite period.

Another commentary on Art. 59 of the Labor Code of the Russian Federation

1. Article 59 of the Labor Code of the Russian Federation in its previous edition proceeded from the fact that a fixed-term employment contract could be concluded at the initiative of the employer or employee. Thus, the presence of the initiative of the party (parties) of the employment contract was considered, along with the presence of a reason (reason) and an indication of the duration of the contract, as a prerequisite for concluding a fixed-term employment contract. However, in practice, such an indication was not always possible to implement. Firstly, there are cases when the conclusion of a fixed-term contract is mandatory by virtue of a direct indication of the law. Secondly, the urgent nature of the contract in a number of cases is dictated by circumstances of an objective nature, the presence of which simply excludes the possibility of concluding an employment contract for an indefinite period.

Article 59, as currently amended, takes this into account. Accordingly, the entire list of reasons that may serve as grounds for concluding a fixed-term employment contract is divided into two parts. The first group of reasons objectively determines the urgent nature of the employment contract, regardless of the discretion of the parties. This conclusion is confirmed by the very wording of Part 1 of Art. 59 of the Labor Code, according to which "a fixed-term employment contract is concluded ...". If there are reasons related to the second group, an employment contract may be concluded by agreement of the parties.

In general, the list of grounds that determine the need or possibility of concluding a fixed-term employment contract has two features. On the one hand, in the wording of Art. 59 it is open. On the other hand, the list is supplemented exclusively by the state, and at a level not lower than the federal law. In this sense, the list is closed, since it cannot be supplemented in the manner of either collective contractual or individual contractual regulation. In other words, no one except the state, and at the level of federal law, has the right to recognize this or that circumstance as a good reason for concluding a fixed-term contract.

In this regard, the Code differs significantly from the previous labor legislation, which treated the question of the validity of the reason for concluding a fixed-term employment contract as a matter of fact, i.e. as a fact subject to a comprehensive assessment, taking into account all specific circumstances. This approach is justified, since it is possible to judge with full certainty the solidity of the reason for concluding a contract only after examining all the circumstances. The legislator has significantly changed the approach to solving this issue: the reason that is the basis for concluding a fixed-term employment contract is now legally formalized, and at the level of federal law. This, in turn, implies the existence of an appropriate list of grounds, and, as one might assume, the list is very extensive. To some extent, this task is intended to be solved by Art. 59 of the Labor Code of the Russian Federation.

So, the conclusion of a fixed-term employment contract is due to the presence of the grounds established in federal law. It follows that one written request of an employee to conclude an agreement with him for a certain period, as is sometimes the case in practice, is not enough. It is necessary that this request of the employee be justified by the reason specified in the federal law.

2. All grounds for concluding a fixed-term employment contract can be combined into at least three groups, determined by: a) the personality (legal status) of the employee or employer; b) limited time due to certain circumstances of the labor activity for which the employee is involved; c) the place of employment of the employee.

3. Part 1 of Art. 59 establishes a list of circumstances under which a fixed-term employment contract must be concluded. In other words, the conclusion of a fixed-term employment contract is determined not by the discretion (initiative) of the parties, but by the presence of objective circumstances that do not depend on their will.

This provision of the law raises at least two problems.

The first one boils down to the question of what could be the consequences of the fact that in the text of the employment contract as a written document there is no indication of the urgent nature of the employment contract. If we approach this problem strictly formally, then we should come to the conclusion that in this case the employment contract should be considered concluded for an indefinite period (part 3 of article 58 of the Labor Code of the Russian Federation). However, it cannot be ignored that in the case under consideration, the employment contract is by its nature urgent and, therefore, cannot exist after the expiration of the circumstance that led to the conclusion of the contract. It seems that in this case, one should proceed from the agreement of the parties regarding the urgent nature of the employment contract, even if this agreement was not reached directly, but indirectly, in the form of default. Accordingly, at the end of the circumstances that served as the basis for the conclusion of a fixed-term employment contract, it is subject to termination in the manner prescribed by Art. 79 of the Labor Code of the Russian Federation.

The second problem comes down to determining the period for which an employment contract is concluded in the presence of the circumstances specified in Part 1 of Art. 59 of the Labor Code of the Russian Federation. As already noted, the legislator, when formulating a list of such circumstances, proceeds from the fact that they objectively dictate the urgent nature of the employment contract, regardless of the will of its parties. If this is the case, then it should be concluded that the term of the employment contract is determined objectively and is limited by the time of existence of the relevant circumstance. In other words, when concluding a fixed-term employment contract in accordance with Part 1 of Art. 59 of the Labor Code of the Russian Federation, the contract must be concluded according to the general rule for the entire period of existence of the circumstance that objectively led to the conclusion of a fixed-term employment contract, but not more than for the deadline established by law. For a period of lesser duration than the effect of the circumstance that led to the conclusion of a fixed-term employment contract, the contract may be concluded only at the motivated request of the employee.

4. Part 2 of Art. 59 of the Labor Code of the Russian Federation formulates a circle of circumstances in the presence of which a fixed-term employment contract may be concluded by agreement of the parties. This wording of the legislator means that a fixed-term employment contract is concluded only if there is the will of the parties. Accordingly, the parties in this case have the right to conclude both a contract for an indefinite period and an urgent one, and in the latter case they have the right to establish any term of the employment contract within the maximum period established by law. The text of the employment contract as a written document should indicate the type of employment contract, the reason that led to the conclusion of a fixed-term employment contract and its validity period (indicating a specific date or circumstance, the occurrence of which determines the termination of the employment contract). Failure to comply with these requirements is fraught in the event of a dispute with the recognition of an employment contract concluded for an indefinite period.

In this regard, the Supreme Court of the Russian Federation reasonably indicates that in accordance with Part 2 of Art. 58 of the Labor Code of the Russian Federation in cases provided for by Part 2 of Art. 59 of the Code, a fixed-term employment contract may be concluded without taking into account the nature of the work to be done and the conditions for its implementation. At the same time, it must be borne in mind that such an agreement can be recognized as lawful if there was an agreement between the parties, i.e. if it is concluded on the basis of the voluntary consent of the employee and the employer. Accordingly, if the court, when resolving a dispute on the legality of concluding a fixed-term employment contract, establishes that it was concluded by the employee involuntarily, the court applies the rules of the contract concluded for an indefinite period (parts 2 - 3, clause 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17 2004 N 2).

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Today, the practice is widespread when staff is being hired. Such a document allows you to agree on the duties, rights of the employee and his employer, to fix the procedure for remuneration. There are several types of employment contracts.

The following highlights issues directly related to the procedure for confinement, the features of the terms of its validity. Since the temporary nature of the agreements between the parties does not guarantee stability, this document raises many questions among citizens.

An employment contract will ensure that the employee's rights are respected

Each employment contract includes a number of mandatory points:

1. Deadlines for starting work.
2. Name of position, profession, qualification level.
3. Where the work will be done.
4. Rights, duties groan.
5. Description of the features of work, compensation in the presence of difficult conditions.
6. Payment order.
7. When the worker will be given rest, when it is necessary to start and finish work.
8. Feature .

If one of the listed items is missing, the contract is called drawn up with violations.

Features of a fixed-term contract

The main feature of a fixed-term employment contract is the conclusion for a certain period, when the specified period passes, the employment relationship ends. This type of contract is concluded if it is not possible to hire an employee on a permanent basis or there is no such need.

This often happens when performing work that is seasonal in nature, or when there is a limited amount of work to be done. There is no minimum time period for a fixed-term contract, the duration is limited to 5 years.

To perform under a fixed-term contract, any workers with the required skill level are used. To prevent a fixed-term contract from becoming a violation, you need to know in what situations it is possible to conclude it. The following are the moments when the type of work requires the preparation of fixed-term contracts:

• If the performance of professional duties does not take more than 2 months.
• If a member of the team is temporarily unable to start performing duties, and it is impossible to replace him with other members of the team.
• If the worker is working
• During the functioning of a temporary organization.
• If necessary, ensure the performance of work that does not correspond to the general profile of the enterprise.
• To perform specific tasks within a limited time frame.
• During an internship.
• When employing a person sent by the employment service.
• When employed as an alternative civilian service.
• Other cases that do not contradict applicable laws.

The employment contract should be studied very carefully

The restrictions mentioned above are not a significant obstacle to signing a fixed-term contract. This method of registration of labor relations is very widespread.

This list can be expanded by situations where the contract is signed. They can be:

1. Recruitment . If a person works on a permanent basis, then reaching retirement age is not considered a legitimate reason for transferring him to a fixed-term contract.
2. The placement of people with disabilities who, by law, have the possibility of only temporary employment. In this case, a medical report drawn up in accordance with the requirements of the current legislation is attached.
3. Employment in companies related to small businesses. In this case, the total number of employees should not exceed 20 people.
4. Place of work - the Far North or regions with a similar status.
5. When hiring to eliminate the consequences of disasters, emergencies.
6. When applying for a place on a competitive basis.
7. When employing creative workers, athletes.
8. Hiring managers, deputies, chief accountants, the type of enterprise does not matter, as well as the form of ownership.
9. Reception.

Registration of a fixed-term contract

Fixed-term employment contract: sample

In contracts of this type, data is recorded similar to the perpetual option. The document must contain the following:

1. Full name of the person, his data;
2. information about the organization;
3. date, place of conclusion of the contract;
4. place of performance of duties;
5. all the main functions of the employee;
6. payment features;
7. information about the employee who is hiring;
8. characteristics of social insurance;
9. additional information about the nature of the work, special conditions.

In addition to the information listed above, the fixed-term contract also includes the following:

• a description of the reason that became the basis for this method of hiring;
• validity period (both a temporary designation and an indication of the implementation of specific scopes of work);
• when hired for a period of 2 months - six months - the possibility of a trial period of 2 weeks; for other terms of employment, the probationary period is made standard;
• when hiring for temporary work - a description of the types of activities, the expiration dates of the contract (no more than 2 months);
• to issue an order, they take the form T-1, T-1a, in which the lines “from” and “to” are filled in detail, and the latter must contain all the specific information;
• the work book is drawn up in the usual way, at the end of the contract they write: "... in connection with the expiration of the employment contract."

Expiry date feature

Termination of a fixed-term contract occurs according to the specified date

The termination of a fixed-term contract is said when the specified period ends. The wishes of the parties do not matter, however, formally, the employee or employer must express their intention to terminate the relationship.

Moreover, the dismissal takes place without. The only exception is vacation pay. The procedure for dismissal under such circumstances is extremely simple. By law, the time frame of the contract varies up to 5 years. The document does not specify the terms for the performance of labor activity or its validity for more than 5 years - it is considered indefinite.

All other time frames for issuing a fixed-term contract only affect the procedure for establishing a probationary period. You can name other cases when a fixed-term contract begins to be considered open-ended.

If the audit reveals violations related to the impossibility of concluding a fixed-term contract, it begins to be considered open-ended.

When extending for another period, because the Labor Code does not provide for the extension of a fixed-term contract. There is the only exception here: if a woman whose employment contract has ended writes a statement and indicates that she is. In this situation, the contract is extended until the full expiration of the maternity leave.

When violations committed by management are established in order to save on providing the employee with the necessary rights, guarantees, usual for employment. The urgent option can be converted into an indefinite one, if there is the will of both parties.

Peculiarities of terminating a fixed-term contract

A fixed-term contract can be converted into an open-ended contract

To terminate a fixed-term contract in compliance with all formalities, you need to take care of the following:

1. When the validity period expires, the contract is terminated or executed for an indefinite period.
2. The reasons must be mentioned.
3. The employee is notified of the termination of the contract no later than 3 days before the date. This is done in writing.
4. Basic requirements for written notification: full name, terms, full name of the organization, reasons that became the basis for terminating the contract. The form doesn't matter.
5. You can terminate the document before the deadline specified in the document.
6. If an employee after a fixed-term contract is hired for a permanent position, dismissal is not required.
7. If a woman carrying a child works under a fixed-term contract, then she remains employed at this place until the end of the maternity leave. You cannot be fired before this time. However, there are exceptions here too. If this woman is employed for the period of absence of the employee, and he returns to his previous place, then the pregnant woman is offered another position. If there is no vacant position suitable for her qualifications and health characteristics, then the contract is terminated.
8. If the term of the contract has expired, the employee is not entitled to insist on further work at this place. The management, in turn, cannot keep the employee, prevent his dismissal.
9. If the agreements have expired, the employee has notified the employer that he is stopping work, has worked the last day and has not returned, this cannot be referred to as.
10. Mode of work, rest.

The video material will acquaint you with the features of drawing up a fixed-term employment contract:

Labor legislation - legislation regulating labor relations between an employee and an employer that arise in the course of labor activity.

The right to work is enshrined in the fundamental law of our country - the Constitution of the Russian Federation. The main legislative act regulating labor relations is the Labor Code of the Russian Federation.

The Labor Code is required to comply with all parties, both employees and employers, regardless of their organizational and legal form. However, not all issues of labor activity are regulated by this law.

Rules for drawing up a fixed-term employment contract

Legal relations not regulated by the code may be regulated by local acts of the employer. Local acts regulate in detail the rights and obligations of the parties to labor relations.

These acts are approved by the management of the enterprise - the employer and are binding not only for employees, but also for the employers themselves. Local acts may take the form of regulations, instructions, orders, etc. Each employee of the employing organization must be familiar with each such act. Local acts should not contradict the labor legislation of the Russian Federation.

If the internal document of the employer contradicts any normative act, then in terms of the contradiction, the local act does not apply, in this case, priority remains with legislative normative acts.

In addition to local acts, the relationship between the parties is regulated by an employment contract. An employment agreement can be drawn up both for a certain period () and indefinitely. In this article, we will consider some of the features of such a document using the example of a sample employment contract with an employee.

Features of the conclusion of fixed-term contracts

A fixed-term employment contract is a written agreement between the employee and the employer on the basic working conditions and concluded for a certain period. The term of such an employment contract may not exceed five years.

The fixed-term employment contract sample below is an exception to the general labor rules. In the overwhelming majority, an employment contract is concluded between the worker and the employer for an indefinite period, and only in cases where this is not possible, a fixed-term employment contract is concluded.

The Labor Code of the Russian Federation establishes cases when a fixed-term contract may be concluded. This list is exhaustive. The conclusion of such an employment contract under other circumstances is not allowed by labor legislation.

If the employment agreement does not contain the period for which it is concluded, then, in accordance with labor law, it is considered that it is concluded for an indefinite period.

Consequences of expiration of the contract

At the end of the term of the labor contract, none of the parties to the agreement demanded its official termination due to the expiration of the term and the employee continues to perform his duties, then such an employment contract is considered concluded indefinitely.

The labor legislation of our country prohibits the conclusion of fixed-term employment contracts in order to avoid granting the rights and guarantees provided for employees with whom an employment contract is concluded for an indefinite period.

An employer is prohibited from requiring an employee to perform labor functions that are not provided for by an employment contract.

This page contains one of these documents. A fixed-term employment contract with an employee, the form of which is located below, you can download absolutely free of charge using the functionality at the end of the page.

Fixed term contract with an employee

Moscow "___" ___________ 201_.

Limited Liability Company "__________________" (abbreviated name "____________" LLC), hereinafter referred to as the "Employer", represented by the General Director _______________________________, acting on the basis of the Charter, on the one hand, and citizen ______________________________, hereinafter referred to as the "Employee", on the one hand on the other hand, have entered into this employment contract, hereinafter referred to as the "Agreement", as follows.

1. The Subject of the Agreement
1.1. Under the Agreement, the Employer undertakes to provide the Employee with work according to the labor function stipulated in this agreement, to ensure the working conditions provided for by the current labor legislation, local regulations of the Employer, to pay the Employee's wages in a timely manner and in full.

etc...

The entire sample of a fixed-term employment contract is available in the attached file.