What does fixed term contract mean? Can a fixed term contract be extended? Registration of a fixed-term employment contract
As a general rule, an employment contract is concluded with any employee who works in an organization. It regulates the wear between employer and employee.
One of the options for an employment contract with an employee is the conclusion of a fixed-term employment contract. When making it, it is worth considering the formalities that will help to avoid claims during the inspection by the labor inspectorate. These, in particular, are the specific period for which the contract is signed, as well as the grounds for its conclusion.
With whom to conclude?
Usually urgent labor contract is in two cases. The first is when 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. For example, for the duration of the performance of the duties of an absent employee, for whom the place of work is retained (maternity leave).
A fixed-term employment contract must be concluded when performing temporary (up to two months) or seasonal work when in force natural conditions it can only be produced during a certain period, season.
Such an agreement is also concluded with employees sent to work abroad. You need to sign an agreement with them for a period not exceeding three years (Article 338 of the Labor Code of the Russian Federation). At the end of three years, the employment contract will have to be renegotiated for a new term.
Labor legislation obliges to sign fixed-term employment contracts when carrying out work that goes beyond the normal activities of the employer. For example, reconstruction, installation, commissioning and other works.
Need to know
A fixed-term employment contract can be concluded in two cases: by agreement of the parties and depending on the nature of the work performed.
With employees performing temporary (up to one year) work, it is also necessary to conclude a fixed-term employment contract. In particular, if this is work related to the expansion of production or the volume of services provided.
A fixed-term employment contract is also concluded with persons entering work in organizations created for a predetermined period (or when this period cannot be precisely determined), as well as for performing a predetermined job.
It is worth remembering that a fixed-term employment contract must be signed with personnel who are aimed at performing work directly related to internships and vocational training. The same story, when an employee is sent by the employment service authorities to work of a temporary nature or public works.
The second situation when the conclusion of a fixed-term employment contract is required is the performance of work without taking into account its nature and conditions of performance. For example, such an agreement is concluded with employees who work for employers - small businesses (including individual entrepreneurs), the number of employees of which does not exceed 35 people. For retail and domestic services, the minimum number is 20 people.
A fixed-term employment contract is concluded with old-age pensioners entering work, as well as with persons who, for health reasons, in accordance with a medical report, are allowed to work exclusively of a temporary nature.
Special rules
The maximum term for concluding a fixed-term employment contract is five years.
In addition, a fixed-term employment contract is concluded when the company is located in areas Far North and the area equated to them, if admission to work is associated with moving to the place of work.
A fixed-term employment contract can be concluded with managers, deputy heads and chief accountants of organizations, regardless of organizational and legal forms and forms of ownership.
The list of cases in which a fixed-term employment contract can be concluded is open, so it can also be concluded in other situations that are permitted by law, for example, when carrying out urgent work to prevent disasters, accidents or other emergencies. However, such an agreement must also contain information and mandatory conditions under which he is considered a prisoner. In particular, it is necessary to indicate the place of work, labor functions, information about the parties concluding the contract, and others (Article 57 of the Labor Code of the Russian Federation).
Term of imprisonment
A fixed-term employment contract is an agreement that defines its validity period (Article 59 of the Labor Code of the Russian Federation). This rule means that the contract must contain a specific period for which the employee is hired. Otherwise, the contract is automatically transferred to the category of perpetual.
The expiration of such an agreement may be the occurrence of certain events (for example, the employee who was replaced, came out of vacation or the end of seasonal work) or a certain date.
The maximum term of an employment contract is five years (Article 58 of the Labor Code of the Russian Federation). As for the minimum period, it is not regulated by law. It can be concluded for a month, for a week and even for one day. If a fixed-term employment contract is signed for one day, then the employer must have a justification for concluding such a contract. In this case, it is much more profitable to conclude civil law contracts (contract, paid services).
Repeated renegotiation of a fixed-term employment contract for a short period to perform the same labor function is a reason for retraining into a contract concluded for an indefinite period (Resolution of the Plenum Supreme Court RF dated March 17, 2004 No. 2).
However, if the employee replaced another employee and he went to work, then the current contract can be terminated with the “conscript” and, by agreement of the parties, a new fixed-term employment contract can be concluded.
Basis for conclusion
A fixed-term employment contract must contain the grounds on which it has the character of urgency. For example, this is the performance of seasonal work, in connection with which an employee is hired for several months, or work abroad. Such circumstances should be listed in the employment contract. With absence sufficient grounds capable of qualifying the contract as urgent, the regulatory authorities will consider its conclusion unlawful and establish it as a contract concluded for an indefinite period.
Therefore, the employment contract must contain the reason (grounds) and the period for which it is concluded.
Decor
When hiring under a fixed-term employment contract in the order for hiring form No. T-1 or T-1a you need to specify the expiration date of its validity or the event that will serve as the basis for its termination, for example, the employee's exit from parental leave.
Attention
Payments under a fixed-term employment contract are subject to both personal income tax and contributions to funds in general order.
In addition, in the section “Conditions for employment, nature of work”, it should be indicated that the employee is hired for a certain period, and (or) the performance of specific work. For example, “under a fixed-term employment contract in connection with being sent to work in Amsterdam” (see an example of filling out an order for employment under a fixed-term employment contract).
The nuances of work
Having concluded a fixed-term employment contract with an employee, the accountant of the organization must comply with certain conditions. So, if none of the parties demanded the termination of such an agreement due to the expiration of its validity period and the employee continues to work, the condition on the urgent nature of the employment contract becomes invalid. Then the employment contract is considered concluded for an indefinite period (Article 58 of the Labor Code of the Russian Federation).
Upon the expiration of a fixed-term employment contract during the woman's pregnancy, the employer is obliged, upon her written application and upon presentation of a medical certificate confirming the state of pregnancy, to extend the term of the employment contract (until the end of pregnancy). Such an employee, at the request of the employer, is required to submit a medical certificate confirming pregnancy once every three months.
Employees working under a fixed-term employment contract are prohibited from setting probation(Article 289 of the Labor Code of the Russian Federation).
Employees with whom an employment contract has been concluded for a period of up to two months, with their written consent, may be involved in work on weekends and non-working days. holidays. Work for these days is compensated in cash at least twice. Recall that, as a general rule, for work on a weekend or non-working holiday, an employee can be provided, at his choice, with either monetary compensation or the right to an additional day of rest (Article 153 of the Labor Code of the Russian Federation). However, "conscripts" cannot take another day for rest, but only monetary compensation.
An employee who has concluded an employment contract for a period of up to two months is not paid severance pay upon dismissal. However, otherwise may be established by agreement of the parties by a collective or labor agreement or federal laws (Article 292 of the Labor Code of the Russian Federation).
"Conscripts" are provided with paid vacations or compensation is paid upon dismissal at the rate of two working days per month of work (Article 291 of the Labor Code of the Russian Federation).
An employee who has concluded an employment contract for a period of up to two months, in case of its termination, is obliged to notify the employer in writing three calendar days in advance. If the employer plans to dismiss such an employee in connection with the liquidation of the organization, downsizing or staff, it is necessary to notify the employee in writing against signature also at least three calendar days in advance (Article 292 of the Labor Code of the Russian Federation).
Yu.L. Ternovka, expert editor
In Russia, when a citizen finds a job in an organization or individual entrepreneur The legislation provides for the mandatory conclusion of an employment contract. Such an agreement can be concluded without specifying the period of its validity - this is an agreement for an indefinite period. As well as Russian legislation provides for the conclusion of fixed-term employment contracts. Such contracts are not always allowed to be concluded. Therefore, employers should figure out by whom, when and for how long a fixed-term employment contract can be signed, whether it can be changed, terminated or made indefinite. And also to study all the pros and cons of a fixed-term employment contract.
Fixed-term employment contract: concept, features
To begin with, let's define how a fixed-term labor contract differs from a contract concluded for an indefinite period, and what they have in common.
Art. 58 of the Labor Code of the Russian Federation establishes that if the term of its validity is not indicated in the employment contract, then it cannot be classified as fixed-term employment contracts. Russia has not established (as, for example, in Japan) the procedure for concluding a life-long employment contract. However, our labor legislation is focused on protecting the labor rights of employees.
That is why the employer cannot conclude a fixed-term employment contract with an employee solely at his own request. Labor Code in Art. 59 of the Labor Code of the Russian Federation determines in which cases it is necessary to conclude a fixed-term employment contract, and when this is permissible by agreement of the parties.
The differences between a fixed-term employment contract and a regular one are due to the reasons for their conclusion and the duration
Note that a fixed-term employment contract, in terms of its main characteristics, aimed at protecting the labor rights of employees, does not differ from a contract concluded for an indefinite period.
The most important quality of a fixed-term employment contract is that this contract has all the basic qualities of an employment contract. Such an agreement must contain all the main characteristics specified for an employment contract, Art. 56 of the Labor Code of the Russian Federation. A fixed-term employment contract fixes the mode of work and rest, the employee's work function, working conditions, payment terms, social insurance, etc.
For a fixed-term employment contract, all the essential conditions prescribed in the usual TD apply
What are the grounds for concluding a fixed-term employment contract?
Russian legislation provides for two options when it is possible to conclude a fixed-term employment contract:
- A fixed-term employment contract is concluded when an employment relationship cannot be established for an indefinite period, taking into account the nature of the work to be performed or the conditions for its performance. These cases are provided for by part one of Article 59 of the Labor Code of the Russian Federation.
- A fixed-term employment contract may be concluded by agreement of the parties to the employment contract without taking into account the nature of the work to be done and the conditions for its implementation. This is permissible in cases where the temporary nature of the employment contract cannot significantly violate the labor rights of the employee. Such cases are provided for by part two of Article 59 of the Labor Code of the Russian Federation.
The grounds for concluding a fixed-term employment contract are set out in Art. 59 Labor Code of the Russian Federation
Disadvantages and advantages of a fixed-term employment contract
The conclusion of a fixed-term employment contract can have pros and cons for both the employee and the employer.
Employee Disadvantages:
- cooperation with the employer will inevitably end at some point;
- simplified dismissal procedure (after the end of the contract period or after the work is completed);
- reduced dismissal period: notification 3 days before the end of work or a day before the main employee leaves (Article 79 of the Labor Code of the Russian Federation);
- if the text of the contract was drawn up incorrectly, the employee has a chance to transfer urgent cooperation to indefinite cooperation in court.
Cons for the employer:
- the pregnancy of an employee on a temporary contract makes it impossible to dismiss her before childbirth (except in the event of liquidation of the company);
- if the employer did not warn the employee in time about the expiration of the contract, this contract automatically takes on an unlimited character;
- if the contract is not executed correctly, the dismissal of an employee is illegal, therefore, by a court decision, he is reinstated in his position, which causes great inconvenience, especially if a temporary employee was hired during the absence of the main one.
In addition to direct disadvantages, for the employer, the possibility of hidden problems can be noted.
It is extremely important to correctly draw up a fixed-term employment contract. Missed nuances can lead to the fact that the contract will be considered indefinite:
- it is unacceptable to draw up several fixed-term contracts with one employee in a row if the labor function specified in the contract does not change;
- the text of the contract must indicate the reason for its preparation (Article 57 of the Labor Code of the Russian Federation);
- The end date of the contract must be specified.
The benefits for the employee can be considered that he has entered into a formal employment contract, albeit for a limited period. Under a fixed-term contract, the employee will enjoy the same labor and social rights as under an indefinite one.
The advantage of a fixed-term contract for the employer can be considered that when carrying out temporary work, the company does not need to expand the staff. Upon dismissal permanent employee you will have to pay compensation related to the reduction in staff, and the employment of an employee in a temporary position will avoid unnecessary costs.
Video: if you signed a fixed-term contract, what awaits you
For how long can a fixed-term employment contract be concluded
A fixed-term employment contract is concluded for no more than five years (Article 58 of the Labor Code of the Russian Federation).
The urgent TD should describe the reason for this type of recruitment.
The Labor Code of the Russian Federation does not provide for the extension of a fixed-term contract. There is only one exception here: if a woman whose employment contract has ended writes a statement and indicates that she is pregnant. In this situation, the contract is extended until the full expiration of the maternity leave.
The procedure and rules for registration under a fixed-term employment contract
The procedure and rules for registering an employee for work under a fixed-term employment contract practically do not differ from registration under an open-ended contract.
The initial document for hiring for a temporary job is usually an employee's application addressed to the head of the company or individual entrepreneur. After the employer puts a work visa on the application, the employer's personnel department prepares a draft fixed-term employment contract.
The applicant for the conclusion of an employment contract must prepare a package of documents for the conclusion of the contract.
Necessary documents for concluding a fixed-term employment contract
The following documents are required from the employee:
- passport of a citizen of the Russian Federation or a document replacing it;
- insurance certificate of state pension insurance (SNILS);
- a document on special education, if it is supposed to conclude an agreement for the performance of work requiring a certain qualification;
- document of military registration (for military persons liable for military service);
- a medical book, if it is necessary for the nature of the work (trade, education, public catering, etc.);
- for a minor employee under the age of 16 - the written consent of the parent (guardian).
According to the Labor Code, an employer does not have the right to request a TIN from an employee, as well as registration at the place of residence, but they are often needed to draw up personnel documents and therefore are requested.
The employee's TIN is required to submit personal income tax returns
How to draw up a fixed-term employment contract: structure and content, basic conditions, sample
When applying for a job under a fixed-term contract in the contract, in accordance with Art. 70 of the Labor Code of the Russian Federation, a test period for employment may be established. The test is established by agreement of the parties in order to verify the compliance of the employee with the assigned work. The absence of a test clause in the employment contract means that the employee is hired without a test.
If the employee is actually allowed to work without drawing up an employment contract (part 2 of article 67 of the Labor Code of the Russian Federation), the test condition can only be included in the employment contract by issuing it as a separate agreement before starting work. Wherein:
- A test for employment is not established if a fixed-term employment contract is concluded for a period of up to two months (Article 289 of the Labor Code of the Russian Federation).
- When concluding a fixed-term employment contract for a period of two to six months, the probationary period may not exceed two weeks.
- If a fixed-term contract drawn up for a period of more than six months, the probationary period is set as standard - up to three months.
An example of a form for a fixed-term employment contract is possible. Attention should be paid to filling out clause 2.1.3 of the contract indicating the start and end of work. A sample of filling out a fixed-term employment contract is possible.
AT without fail even before signing the contract, the employee must familiarize himself with the rules of internal work schedule, his job description, as well as confirm your familiarization with a signature in the appropriate journal.
After signing a fixed-term employment contract, the employer's personnel department must perform at least two mandatory operations:
- issue an order for employment under a fixed-term employment contract;
- make an entry in the work book of the hired employee, reflecting the start of work with the employer.
Order on employment and filling out a work book
This has no fundamental differences with the order for admission to a permanent job. The main difference between such an order is that it must contain the date or conditions for the completion of this contract. Order example.
When drawing up a fixed-term employment contract, the work book is filled out according to the general rules.
However, making an entry in the work book about the deadline for completing the contract is a violation of the provisions of the Instructions for filling out work books. If the inspection authorities discover the fact of a record of the deadline for the completion of the employment contract, the employer may be held administratively liable under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation . In addition, the employer will be issued an order to eliminate the violation, failure to comply with which may result in liability in accordance with Art. 19.5 of the Code of Administrative Offenses of the Russian Federation.
Features and procedure for payment under a fixed-term employment contract
An employee with whom a fixed-term employment contract has been concluded enjoys all the rights to pay for the work performed on an equal basis with permanent employees.
All social payments to a temporary worker are also required. But there are some nuances here. So, in order to receive payments for sick leave and vacations, the average salary is calculated not for the last 12 months, but from the calculation of the average salary for the period from the moment of employment to the month preceding the sick leave or vacation.
There are also specifics for temporary workers upon dismissal. In the event of the dismissal of a permanent employee due to staff reduction, he is entitled to compensation, which is not provided for temporary workers.
Upon dismissal, a temporary worker, in addition to payment for work performed, is only entitled to compensation for unused days of the next vacation.
The procedure for terminating a fixed-term employment contract, including at the expiration of the term
The procedure for terminating a fixed-term employment contract is regulated by Art. 79 of the Labor Code of the Russian Federation. The employer warns the employee about the end of a fixed-term employment contract at least three calendar days before the date indicated in the contract as the date of its expiration.
If none of the parties demanded the termination of a fixed-term employment contract due to its expiration and the employee continues to work after the expiration of the employment contract, the condition on the urgent nature of the employment contract becomes invalid, and the employment contract is considered concluded for an indefinite period.
But there are certain features in the dismissal of an employee under a temporary employment contract:
- an employment contract concluded for the duration of a certain work is terminated upon completion of this work;
- an employment contract concluded for the duration of the performance of the duties of an absent employee is terminated when this employee returns to work;
- an employment contract concluded for the performance of seasonal work is terminated at the end of the period (season) specified in the contract.
Special nuances relate to the conclusion of an employment contract for a certain period in the absence of sufficient grounds for this established by law. In this case, the contract is considered concluded for an indefinite period by a court decision.
If a pregnant woman works under a fixed-term contract, 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 a woman is employed during the absence of an employee, and he returns to his previous position, then the pregnant woman is offered another position. If the employer does not have a vacant position suitable for her qualifications and health characteristics, then the contract is terminated. A pregnant employee working under a fixed-term contract may also be dismissed before the completion of maternity leave if the employer's activities are completely terminated (the employer - entity or an individual entrepreneur is deregistered as a business entity).
If the term of the contract has expired, the employee is not entitled to insist on further work on this spot. The management, in turn, cannot keep the employee, prevent his dismissal. If the agreements expired, the employee notified the employer that he was stopping work, worked the last day and did not come back, this cannot be considered absenteeism. Temporary employee upon dismissal own will the obligation to work the prescribed number of days is not imputed.
The dismissal of an employee at the expiration of the employment contract is usually quick and painless
How to convert a fixed-term contract into an open-ended one
In some cases, a fixed-term employment contract may be converted into an indefinite one. This happens if:
- an agreement has been reached between the employer and the employee on the transfer of the employee to a permanent job;
- the employee applies to the court with a claim to recognize the contract as open-ended, and based on the materials submitted, the court makes a positive decision.
If the parties to the contract have agreed that the employee hired under a fixed-term contract will become a permanent employee, it is necessary to conclude an appropriate agreement.
A sample additional agreement between an employer and an employee with a joint decision to transfer a fixed-term employment contract to the status of an open-ended one is possible. After signing it, a temporary worker automatically becomes a permanent one.
After the conclusion of an additional agreement on the transfer of a fixed-term contract to an open-ended contract, the employer must issue an order approving this agreement. An example can be downloaded.
The procedure for retraining a fixed-term employment contract into an open-ended one in a judicial proceeding
In practice, a situation may arise when one of the parties to a fixed-term employment contract, usually the employer, believes that the contract has ended, and the other party believes that this fixed-term contract can be considered open-ended and the employee can be considered a permanent employee.
When the parties fail to reach an agreement, the person concerned, usually an employee, goes to court. When applying to the court, an employee can substantiate his claim by one of the following circumstances:
- a fixed-term employment contract was concluded without legal grounds, provided for in Art. 59 of the Labor Code of the Russian Federation;
- the expiration date of the contract (or the amount of work to be performed) is not indicated, i.e. the contract does not contain a reference to the event in connection with which it is terminated, or the date of termination of the employment relationship is not indicated;
- a fixed-term employment contract is concluded for a period of more than five years;
- the employer did not warn the employee about the end of the contract 3 days before its expiration;
- a fixed-term contract is repeatedly concluded for a short period of time to perform the same labor function.
And another reason to challenge the contract in court are banal violations of the norms of Art. 59 of the Labor Code of the Russian Federation. In accordance with it, a fixed-term contract must necessarily contain the validity of the execution of a fixed-term contract.
A fixed-term employment contract is an important element of the Russian labor law. Such an agreement is often convenient for both the employer and the employee. Therefore, all employers need to understand when it is permissible to conclude a fixed-term employment contract, how to draw it up, how to change it, in which cases it is possible to convert such an agreement into an open-ended one.
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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.
- Work must not be dangerous or harmful.
- The working day should not exceed the norms that are established for a certain age.
- Minors may not be sent on business trips or employed at night.
- 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 term of the employment contract does not apply to the initiative of the employer, which means that in this case this procedure possible without the involvement of the labor inspectorate and the commission on juvenile affairs.
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:
- Write an application for an extension indicating the reason.
- 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 occurrence retirement age he worked in an organization and had an indefinite employment contract, then he cannot be transferred to a temporary job.
Leaders
An employment contract with a manager can be temporary for two reasons:
- By agreement of the parties.
- 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, general principles calculation of holidays and compensation for them.
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.
Temporary work is understood as work, which is known in advance that it will last no more than two months (for example, during the preparation of the annual report). It will be illegal to conclude a fixed-term employment contract for up to two months to perform work that is permanent.
When concluding a fixed-term employment contract, the parties must determine its specific period within two months (a month, a month and a half, etc.). Such wording as "for up to two months" is unacceptable.
The conclusion of a fixed-term employment contract for the performance of seasonal work is allowed provided that these works are provided for in a special list. The lists of seasonal works, including works that can be carried out during a period (season) exceeding six months, and the maximum duration of these individual seasonal works are determined by sectoral (intersectoral) agreements concluded on federal level social partnership (part 2 of article 293 of the Labor Code);
3) with persons sent to work abroad. These can be diplomatic missions and consular offices Russian Federation abroad, as well as representative offices of federal executive authorities and public institutions Russian Federation, commercial organizations, scientific and educational institutions and 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 one year) expansion of production or the volume of services provided.
In this case, activities that correspond to the main directions of the organization's work, enshrined in its charter, will be normal.
The law, as an example of work that goes beyond the normal activities of the organization, calls the reconstruction, installation, commissioning. Depending on the nature (type) of the ordinary activities of the organization, these can be repair, construction works.
In any case, 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.
The law does not establish any special deadline for which such an employment contract can be concluded, therefore its term in each case is determined by agreement of the parties based on specific circumstances and the period of time during which there remains a need to perform work that goes beyond normal activities of the organization. Should apply here general rules on the deadline for the employment contract, established by Art. 58 TC, i.e. five years.
As for the employment contract concluded in connection with the need to temporarily expand production or the volume of services provided, its term 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 frames that are known to the employer.
The specific period of validity of such an employment contract within one year is determined by agreement of the parties. For example, due to the increase in the number of tourists in summer time and in connection with the expansion of the volume of services provided, hotels, cafes, restaurants, transport organizations can accept an additional number of employees 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.
If an organization is established for a fixed term or only to perform certain work, this should be recorded in its charter. It also defines the specific period of time for which it was created or during which the work will be completed, the implementation of which is the goal of creating an organization (for example, for 2, 3, 4 years).
The term of an employment contract with persons entering such organizations is determined by the period for which they were created. Therefore, the termination of the employment contract with the specified employees after the expiration of the period is permissible if this organization really terminates its activities due to the expiration of the period for which it was created, or the achievement of the purpose for which it was created, without the transfer of rights and obligations by succession to other persons (paragraph 14 of the decision of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 . N 2 "On the application by the courts of the Russian Federation Labor Code Russian Federation" * (17));
6) with persons hired to perform a deliberately defined work in cases where its performance (completion) cannot be determined by a specific date.
The employment contract concluded on this basis must indicate that it is concluded for the period of performing this particular work (for example, for the time of office renovation, for the period of construction of the facility). Completion (completion) of the specified work will serve as the basis for termination of the employment contract due to the expiration of its validity.
However, if during judicial trial the fact of the 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 Resolution of the Plenum of the Supreme Court of the Russian Federation 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 a student agreement concluded by the organization with the student himself (see Articles 198-208 of the Labor Code);
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 the faculty or head of the department of a higher educational institution. According to Art. 12 federal law dated August 22, 1996 N 125-FZ "On higher and postgraduate professional education" * (18), 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) when applying for a job related to the direct support of the activities of members of elected bodies or officials in bodies state power and bodies local government, in political parties and other public associations.
So, not all persons entering the work in these elected bodies can be concluded a fixed-term employment contract. We are talking about such work that 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).
In these cases, the term of the employment contract is established by agreement of the parties within the term of office of the relevant elected body or official. Moreover, the early termination of their powers should entail the termination of employment contracts with persons hired to directly ensure their activities;
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, job seekers. The term of the employment contract for the performance of such work is determined by agreement of the parties.
The conclusion of a fixed-term employment contract is not allowed if the work for which the citizen is sent by the employment service is of a permanent nature;
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" * (19) in accordance with the Constitution of the Russian Federation .
Alternative civilian service is special kind labor activity in the interests of society and the state, carried out by citizens in return for military service by invitation. The procedure for sending citizens to alternative civilian service is determined by the named Federal Law, other federal laws, the Regulations on the procedure for performing alternative civilian service, approved by Decree of the Government of the Russian Federation of May 28, 2004 N 256 * (20), and other regulatory legal acts adopted in accordance with them acts of the Russian Federation. The labor activity of citizens undergoing alternative civilian service is regulated by the Labor Code, taking into account the specifics provided for by this Law.
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.
6) with heads, deputy heads and chief accountants of organizations. It does not matter what the organizational and legal form of these organizations - joint-stock company, limited liability company, state unitary enterprise etc.
In accordance with Part 1 of Art. 275 of the Labor Code, the term of the employment contract with the head of the organization is determined by the constituent documents of the organization or by agreement of the parties. Based on this, it should be assumed that 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.
Part-time employment is the performance by an employee of another regular paid job on the terms of an employment contract in his spare time from his main job (Article 282 of the Labor Code). The conclusion of employment contracts for part-time work is allowed with an unlimited number of employers, unless otherwise provided by federal law. Part-time work can be performed by an employee both at the place of his main job, and with other employers. It is not allowed to work part-time for persons under the age of 18, in heavy work, work with harmful and (or) hazardous conditions labor, if the main work is associated with the same conditions, as well as in other cases provided for by the Labor Code and other federal laws.
The employment contract must indicate that the work is part-time.
4. Except for the cases listed in part 2
Summer is the time for vacations, seasonal and temporary work. During this period, fixed-term employment contracts are most often concluded. What are their features compared to perpetual contracts? What do employees and employers lose and gain when concluding a fixed-term employment contract? You will find answers to these and other questions in the article.
Labor legislation provides for two types of employment contract. According to part 1 of article 58 of the Labor Code of the Russian Federation, contracts can be concluded:
- For undefined period;
- for a specified period, but not more than five years. Let's talk more about a fixed-term employment contract.
When is a fixed-term contract concluded?
In some cases, the nature of the upcoming work or the conditions for its implementation do not allow formalizing an employment relationship with an employee for an indefinite period. Therefore, a fixed-term employment contract is concluded with him.
The grounds for concluding a fixed-term employment contract are listed in Part 1 of Article 59 of the Labor Code. And in part 2 of article 59 of the Labor Code of the Russian Federation, cases are prescribed when a fixed-term employment contract can be concluded by agreement of the parties (see table below). At the same time, the list of grounds for establishing the term of labor relations is exhaustive. This is also stated in the letter of Ros-Labor dated December 18, 2008 No. 6963-TZ.
Table.
| Grounds for concluding a fixed-term employment contract | |
| unconditional (part 1 of article 59 of the Labor Code of the Russian Federation) | by agreement of the parties (part 2 of article 59 of the Labor Code of the Russian Federation) |
|
|
* The list of works, professions, positions of creative workers was approved by the Decree of the Government of the Russian Federation of April 28, 2007 No. 252.
If there are no specified grounds when registering an employment relationship, the employer cannot conclude a fixed-term employment contract with the employee. Otherwise, in a labor dispute, this fact will be qualified as a violation of the employee's rights. In addition, it is impossible to conclude fixed-term employment contracts repeatedly without a temporary break if we are talking on the performance by employees of the same labor function. This, in particular, is stated in paragraph 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter - Resolution No. 2). Given the circumstances of the case, such contracts may be considered concluded for an indefinite period.
We draw up a fixed-term employment contract
Now let's move on to the execution of a fixed-term employment contract. As mentioned above, it is concluded only if there are grounds established by the Labor Code or other federal law. Therefore, when drawing up a contract, it is necessary to indicate for what reasons it is concluded with an employee for a certain period. This requirement is set out in paragraph 4 of part 2 of article 57 of the Labor Code of the Russian Federation.
Mandatory terms of an employment contract
A fixed-term employment contract, like any other, must contain mandatory conditions. According to part 2 of article 57 of the Labor Code, these are:
- place of work;
- labor function;
- date of commencement of work;
- salary;
- mode of operation;
- compensation;
- the nature of the work;
- condition on compulsory social insurance, etc.
How to determine the terms of the contract
The condition on the term of the employment contract is probably one of the most important points of this document. Without it, the contract would not be considered urgent. Therefore, we will give him Special attention. How to formulate a term condition? It all depends on the circumstances of the contract. Let's consider them.
The end date of the contract is set. If a specific date is set when the term of the employment contract ends, it must be written in the document. Recall that a fixed-term contract can be concluded for a period not exceeding five years.
In particular, the expiration date of a fixed-term employment contract is indicated in the case when an employing organization is created to perform specific work. Accordingly, employees will be hired for a period not exceeding their duration. This also applies to seasonal work (if the specific end date of the season is known) and elected positions.
Let's consider how a term record can be formulated using an example.
Example 1
L.D. Smekhov got a job at Veseli Gorki LLC (amusement park) as a janitor. The park is open to visitors from May 1 to October 1. The employer concluded a fixed-term employment contract with him for the period of the park operation. How to reflect the term condition in the document?
Solution
The clause of the contract, in which the condition on the term of its validity is written, will look like this:
"2. Contract time
2.3. The contract is concluded for five months for the period of operation of the amusement park from May 1 to September 30.
An end date for the contract has not been set. In some cases, it is impossible to determine the end date of the employment contract. Here are some typical situations when the contract prescribes a condition on its validity period, and not a specific date. So, the conclusion of a fixed-term employment contract is possible:
- in connection with the departure of the employee in maternity leave and parental leave;
- illness of an employee;
- performance of seasonal work.
In these cases, the end of the term of the employment contract is associated with a specific event, for example, with the return of the employee to work after prolonged illness. In this regard, Resolution No. 2 provides the following explanations. If a fixed-term employment contract is concluded for the performance of a specific job, and exact date its end is unknown, the contract is terminated upon completion of this work by virtue of part 2 of article 79 of the Labor Code.
Example 2
Confectioner P.L. Pryanishnikova was accepted into Vanil LLC for the duration of the confectioner V.A. Kalacheva course of treatment in a hospital since August 1, 2010. With P.L. Pryanishnikova signed a fixed-term employment contract. How will the condition on the term of the contract be spelled out if it is not known exactly when V.A. Kalacheva will return to her workplace?
Solution
In the employment contract with P.L. Pryanishnikova should have the following wording:
"2. Contract time
2.1. The Agreement comes into force from the day it is concluded by the Employee and the Employer (or from the day the Employee is actually admitted to work with the knowledge or on behalf of the Employer or his representative).
2.3. The contract was concluded for the period of temporary disability of the confectioner V.A. Kalacheva, who retains her job.
2.4. The term of the contract is determined until the return of the main employee V.A. Kalacheva.
2.5. In the event that the main employee V.A. Kalacheva disability with limited ability to work or dismissal, the Employer extends this contract with the Employee replacing him for an indefinite period.
Probation
Is it possible to establish a probationary period when concluding a fixed-term employment contract? It all depends on how long and for what work the employee is hired.
Seasonal work. When concluding an employment contract for the duration of seasonal work, a trial period of more than two weeks cannot be established (Article 70 of the Labor Code of the Russian Federation). At the same time, the seasonality condition must be included in the text of the contract in accordance with Article 294 of the Labor Code.
Temporary work. When drawing up a fixed-term contract for the duration of temporary work (up to two months), a probationary period is not established (Article 289 of the Labor Code of the Russian Federation).
Other works. When concluding an employment contract for a period of two to six months, the test cannot exceed two weeks (Article 70 of the Labor Code of the Russian Federation).
Recall that according to Article 70 of the Labor Code of the Russian Federation, a test for employment is also not established:
- pregnant women and women with children under the age of one and a half years;
- persons elected by competition for the relevant position held in the manner prescribed by labor law and other normative legal acts containing labor law norms;
- under the age of 18;
- graduated from state-accredited educational institutions of primary, secondary and higher vocational education and for the first time entering work in the received specialty within one year from the date of graduation from an educational institution;
- elected to an elective position for a paid job;
- invited to work in the order of transfer from another employer as agreed between employers;
- to other persons in cases stipulated by the Labor Code, other federal laws, a collective agreement.
The trial period may not exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions organizations - six months, unless otherwise provided by federal law.
We draw up a fixed-term employment contract
Let's proceed directly to the design of the document. As we have already noted above, all mandatory conditions must be included in it.
Particular attention should be paid to the reasons why a fixed-term employment contract is concluded, and to the timing of its expiration. Let's take this document as an example.
Example 3
Civil engineer E.V. Nezabudkin was hired by Project-Design LLC, created specifically to serve international youth sports games"Sportlantida", planned in Volgograd in August 2010. Preparation for them began in January 2010, construction work should be completed on July 15, 2010. The organization will function until July 31, 2010. With E.V. Nezabud-kin need to conclude a fixed-term employment contract for the period of existence of this organization. How to compose it?
Solution
The fixed term contract is below.
Entry in the work book upon employment
According to clause 4 of the Rules for maintaining and storing work books, preparing work book forms and providing employers with them, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225, information about the employee, the work performed by him, transfer to another permanent job, dismissal, as well as the grounds for termination of the employment contract and information on the award for success in work.
Accordingly, if a fixed-term employment contract is concluded with an employee for any period, it is necessary to make an entry about this in the work book or start a new one, if there is none. The employer must make a record of hiring a conscript in the work book if he has worked for him for more than five days and this work is the main one for this employee. This is the requirement of paragraph 3 of the Rules for maintaining and storing work books, preparing work book forms and providing employers with them, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225.
However, this does not mean that it is necessary to indicate in the work book that it is a fixed-term employment contract that has been concluded. Also, attention is not focused on the fact that an employee, for example, replaces an absent specialist. enough to produce standard notation, for example: “Employed as a mechanic”, indicating the serial number of the entry, date, as well as the details of the order for employment. This, in particular, is stated in the letter Federal Service on labor and employment of 04/06/2010 No. 937-6-1.
Vacation of a conscript worker
An employee who has entered into a fixed-term employment contract is generally granted annual paid leave with the preservation of the place of work and earnings (Article 114 of the Labor Code of the Russian Federation). Its duration is at least 28 calendar days per working year (Article 115 of the Labor Code of the Russian Federation). If the employee has worked less than a year, the duration of the vacation is calculated in proportion to the hours worked.
The right to use leave for the first year of work arises for the employee after six months of his continuous work with this employer (part 2 of article 122 of the Labor Code of the Russian Federation).
Holidays are paid on the basis of the average wage, which is calculated according to the rules established in Article 139 of the Labor Code, as well as in the Regulation on the peculiarities of the procedure for calculating the average wage, approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922.
In accordance with Part 1 of Article 128 of the Labor Code of the Russian Federation for family reasons and other good reasons an employee, on the basis of his written application, may be granted leave without pay for the duration established by the labor legislation of the Russian Federation and the internal labor regulations of the employer.
Extension of a fixed-term employment contract
In what cases can a fixed-term employment contract be extended? Let's consider several situations.
Mandatory extension of the contract
The validity of a fixed-term employment contract can be mandatory extended only in one case - if it coincides with the period of the employee's pregnancy. In this situation, the employer is obliged to extend the term of the employment contract until the end of the pregnancy. This is stated in part 2 of article 261 of the Labor Code.
The employee must submit a written application and bring a medical certificate confirming the state of pregnancy2.
Extension by agreement of the parties
Part 4 of Article 58 of the Labor Code states the following. In the event that none of the parties demanded the termination of a fixed-term employment contract due to its expiration and the employee continues to work, the condition on the urgent nature of the employment contract becomes invalid. After that, the employment contract is considered concluded for an indefinite period. Does the fact of changing the status of a fixed-term contract to an open-ended contract need to be documented?
In fact, the change in the status of the contract occurs automatically. After that, the conscript employee is subject to the labor law norms that are provided for employees who have concluded open-ended employment contracts. For example, such an employee can no longer be fired on the basis of the expiration of the employment contract (clause 2, article 77 of the Labor Code of the Russian Federation).
However, in this case, it is desirable to draw up a number of documents. Such recommendations are given in the letter of Rostrud dated November 20, 2006 No. 1904-6-1.
First of all, this is an additional agreement to the employment contract. It is possible to give the following wording in it: “To state clause No. ... in the following wording: “This employment contract is concluded for an indefinite period””.
Fixed term contract with pensioner
Often, employers enter into fixed-term contracts with pensioners. However, many believe that this single form relationships with this category of workers. However, it is not. The Ruling of the Constitutional Court dated May 15, 2007 No. 378-O-P states that when concluding an employment contract with a pensioner, a period can be set only by agreement of the parties. A similar conclusion is contained in paragraph 13 of Resolution No. 2.
Therefore, it is possible to conclude employment contracts with pensioners for an indefinite period. There is also no need to dismiss an employee who has received the status of a pensioner and conclude a fixed-term contract with him. He can continue to work on the basis of a previously concluded open-ended contract.
Termination of a fixed-term employment contract
An employment contract with a conscript employee is terminated due to the expiration of its validity. This is stated in part 1 of article 79 of the Labor Code of the Russian Federation. The procedure for terminating a fixed-term employment contract is regulated by Article 79 of the Labor Code of the Russian Federation. The termination of the employment contract upon the expiration of the term of the employee is warned in writing at least three calendar days before the dismissal. Only in the case when a fixed-term contract is concluded with an employee for the period of replacement of an absent specialist, the employer may not warn him in advance.
The notification is made in any form. It must specify the term for terminating the contract and the rationale (for example, in connection with the completion of work).
Dismissal order
After the employee is notified of the expiration of the employment contract and there are no obstacles to its termination, the manager issues an order to dismiss the employee. For this, there are two unified forms No. T-8 and T-8a (in the event of the dismissal of several employees), which are approved by the Decree of the State Statistics Committee of Russia of 01/05/2004 No. 1 "On approval of unified forms of primary accounting documentation for accounting for labor and its payment."
A fixed-term employment contract may also be terminated on the general grounds established in Article 77 of the Labor Code of the Russian Federation, namely:
- by agreement of the parties (Article 78 of the Labor Code of the Russian Federation);
- the initiative of the employee (Article 80 of the Labor Code of the Russian Federation);
- the initiative of the employer (Article 81 of the Labor Code of the Russian Federation).
Entry in the workbook
On the day the employment contract is terminated, the employee must be given a work book in his hands (part 4 of article 84.1 of the Labor Code of the Russian Federation).
According to paragraph 5.2 of the Instructions for filling out work books, approved by Decree of the Ministry of Labor of Russia dated 10.10.2003 No. 69, upon termination of an employment contract on the grounds provided for in Article 77 of the Labor Code of the Russian Federation, a dismissal entry is made in the work book with reference to the corresponding paragraph of this article.
On a note
When to dismiss an employee if a fixed-term employment contract terminates on a holiday or weekend? According to Article 14 of the Labor Code of the Russian Federation, the expiration date of the employment contract, if the last day is a non-working day, is considered the next working day following it.
In the event of the dismissal of a conscript employee, when making an entry on the termination of a fixed-term employment contract, it is necessary to refer to clause 2 of part 1 of article 77 of the Labor Code of the Russian Federation. The wording will look like this: "Fired due to the expiration of the employment contract, clause 2 of part 1 of article 77 of the Labor Code of the Russian Federation."
After receiving the work book, the employee must sign in the book of accounting for work books and inserts to them in the form approved in Appendix 3 to the Decree of the Ministry of Labor of Russia dated 10.10.2003 No. 69, and on the last page of the personal card, the unified form of which No. T-2 was adopted by the Decree Goskomstat of Russia dated 05.01.2004 No. 1.
If temporary disability coincided with the expiration of a fixed-term contract
If an employee is on sick leave at the time when his contract expires, the fixed-term employment contract is not extended. An employee is fired for general reasons. However sick leave must be paid. Article 183 of the Labor Code of the Russian Federation obliges the employer to do this. It states that in the event of temporary disability, the employer pays the employee temporary disability benefits in accordance with federal laws.
In turn, paragraph 2 of Article 5 of the Federal Law of December 29, 2006 No. 255-FZ “On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Motherhood” states that temporary disability benefits are paid to insured persons not only during the period of employment agreement, but also in cases where the disease or injury occurred within 30 calendar days from the date of termination of its validity.
Taxation and accounting of payments upon dismissal
Labor legislation requires the employer on the last working day of the employee to pay him wages for hours worked (Article 140 of the Labor Code of the Russian Federation) and compensation for unused vacation(part 1 of article 127 of the Labor Code of the Russian Federation). It is permissible to establish other payments in a collective or employment agreement.
So, in part 4 of article 178 of the Labor Code it is said that labor or collective agreements not only the payment of severance benefits not provided for by parts 1-3 of Article 178 of the Labor Code of the Russian Federation can be established, but also increased amounts of severance benefits.
An employee is paid upon termination wage for hours worked, compensation for unused vacation and, in some cases, severance pay.
The first two payments are subject to:
- personal income tax (clause 1, article 210 of the Tax Code of the Russian Federation);
- insurance premiums (clause 1, article 7 of the Federal Law of July 24, 2009 No. 212-FZ “On insurance premiums in Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund and the Territorial Compulsory Medical Insurance Funds).
The amounts of wages and compensation are included in the taxpayer's expenses for wages (part 1 of article 255 of the Tax Code of the Russian Federation).
Wages are subject to contributions for injuries (clause 3 of the Rules for the calculation, accounting and spending of funds for the implementation of compulsory social insurance against industrial accidents and occupational diseases, approved by Decree of the Government of the Russian Federation of 02.03.2000 No. 184).
Compensation is not subject to contributions for injuries (clause 1 of the List of payments for which insurance premiums are not charged to the FSS of Russia, approved by Decree of the Government of the Russian Federation of 07.07.99 No. 765).
Severance pay within the norms is not subject to personal income tax, insurance premiums (subparagraph “e”, paragraph 2, part 1, article 9 of the Federal Law of July 24, 2009 No. 212-FZ), is not subject to injury contributions (paragraph 1 of the List of payments , for which insurance premiums are not charged to the FSS of Russia), reduces the taxable base for income tax as part of labor costs (clause 9, article 255 of the Tax Code of the Russian Federation).
In accounting, wages, severance pay and compensation for unused vacation are included in expenses for ordinary species activities (clause 5 PBU 10/99).
The accrual and payment to their employee is reflected in the following entries:
DEBIT 20 (23, 25, 26, 29, 44) CREDIT 70 - payments to the employee upon dismissal were accrued;
DEBIT 70 CREDIT 68 sub-account "Personal income tax settlements" - personal income tax withheld from payments that are subject to this tax;
DEBIT 70 CREDIT 50 (51) - payments to the employee were issued (listed).
Gavrikova I. A., senior scientific editor of the journal "Salary"