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, an urgent contract is concluded with him labor contract.

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)
Temporary absence of the main employee Temporary work Seasonal work Work abroad Jobs outside the normal activities of the employer Temporary increase in production Employer established for a fixed period For the period of study and internship Election to office Ensuring the activities of elected bodies The direction of the employee by the employment authorities for temporary work Alternative civilian service	The employer is a small business entity The employee is retired Medical indications The execution of the work requires moving to the districts Far North Urgent work to prevent disasters, etc. Election to a position on a competitive basis Creative professions in the media, cinematography, etc.* With managers, deputy heads, chief accountants The employee is undergoing training The employee is a part-time worker

* 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 about 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 courts Russian Federation Labor Code of the Russian Federation" (hereinafter referred to as 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 fixed-term contract may 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 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?

Decision

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 on 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?

Decision

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 labor activity or dismissal The employer extends this agreement with his replacement Employee 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 norms labor law;
• under the age of 18;
• graduates with state accreditation educational institutions primary, secondary and higher vocational education and for the first time entering a job in the acquired 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, collective agreement.

The probation 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 of organizations - six months, unless otherwise established 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 works must 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?

Decision

The fixed term contract is below.

Entry in the work book upon employment

According to paragraph 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 general order an annual paid leave is provided 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 rules of internal work schedule 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

Validity of a fixed-term employment contract without fail can be extended only in one case - if it coincides with the period of pregnancy of the employee. 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 neither 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 work book

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.

Thus, part 4 of article 178 of the Labor Code states that labor or collective agreements can establish not only the payment of severance benefits not provided for in parts 1-3 of article 178 of the Labor Code of the Russian Federation, 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 limits 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"

The company can hire employees either for a permanent term or for a strictly limited one. In the latter case, a fixed-term employment contract is signed. Depending on the circumstances of a particular hiring and the specifics of the work of the organization, a fixed-term employment contract is concluded either taking into account the work assigned (part 1 of article 59 of the Labor Code of the Russian Federation), or by mutual agreement of the head and employee (part 2 of article 59 of the Labor Code of the Russian Federation).

When you don't need employee consent

The Labor Code provides for certain categories of employees who can only be hired for a period when a fixed-term employment contract is mandatory, in other words, when a contract for an indefinite period cannot be concluded.

So, for example, it would be unlawful to hire an employee not on a fixed-term employment contract who, for health reasons, is only allowed to work temporarily, or CEO if the constituent documents of the company provide that an employment contract is concluded with it for a certain period (part 1 of article 275 of the Labor Code of the Russian Federation).

The absence of the consent of the employee in this case means that the employment contract will not be concluded at all. In other words, if the employee does not agree to sign a temporary contract, the company will not have an obligation to conclude an open-ended contract (as will happen if a fixed-term employment contract is signed by agreement of the parties - see below).

Cases when a temporary contract can be concluded without the consent of the employee

A fixed-term employment contract is concluded in cases where either the specifics of the work or the conditions for its implementation do not allow hiring an employee permanently (part 1 of article 59 of the Labor Code of the Russian Federation). At the same time, the contract itself must indicate how long a fixed-term employment contract is concluded. The maximum term of the contract is five years.

The list of grounds for concluding a temporary contract is open and can be supplemented by grounds that will be further provided for by the Labor Code of the Russian Federation or other laws.

Today it is:

• replacement of a temporarily absent employee (as a rule, we are talking about a decree);
• performance of temporary works (no more than two months);
• seasonal workers;
• employees sent to work abroad;
• employees hired for non-standard work for the organization (installation, reconstruction) or in case of temporary expansion of production;
• the entire staff of employees hired by the company, created for a limited period or for specific temporary work ( project work), including if the time of completion of work cannot be determined in advance;
• interns and trainees;
• replacement of an elective office;
• employees sent by the employment service for temporary (public) work;
• alternative civil servants.

Agreement of the parties for a fixed-term employment contract

If there are no circumstances of the temporary nature of the work that would justify the urgency of the employment relationship, the employee and his manager can agree to sign a fixed-term employment contract - the Labor Code provides for this possibility. However, this can not always be done, but in strictly defined cases (part 2 of article 59 of the Labor Code of the Russian Federation):

• hiring to a small business entity (number of employees - less than 35, and if we are talking about retail and consumer services - less than 20);
• hiring old-age pensioners or employees who, for health reasons, are only allowed to work temporarily. Here it must be emphasized that we are talking specifically about hiring a new employee, and not about a working pensioner under an indefinite employment contract. In the latter case, it is categorically impossible to “transfer” him to a fixed-term employment contract, this is illegal;
• hiring an employee to the Far North, if he is supposed to move;
• recruitment of employees on a competitive basis;
• hiring creative workers (media, circuses, theaters, etc.);
• hiring managers, their deputies and chief accountants of companies;
• hiring full-time students;
• recruitment of seafarers;
• hiring partners;
• hiring employees to prevent emergencies, accidents, epidemics and other similar events, as well as to eliminate the consequences of these events, if they have already occurred.

The nuances of concluding a temporary contract by agreement of the parties

The main point that needs to be monitored when concluding a fixed-term contract by agreement of the parties is voluntariness. This means that both the employee and his manager really prefer to limit the term of their employment relationship and voluntarily waive an indefinite employment contract.

The fact of voluntariness is confirmed by the signatures of the parties on the contract; a separate written agreement for a fixed-term employment contract is not required to be signed.

In the contract itself, it is necessary to emphasize that it is urgent, confirm this with an appropriate basis (for example, by the fact that the employee is studying at a university for full-time department). It is necessary to make sure that the employee has a supporting document (training document, pension certificate, etc.).

Registration of a fixed-term employment contract

The fact of signing the contract must be recorded by order (indicate in it the grounds for concluding a temporary contract), and the personnel worker must make a record of employment in the work book.

The term of the contract must be fixed in it, otherwise, de jure, the contract will be considered unlimited (part 3 of article 58 of the Labor Code of the Russian Federation). In this case, it will be possible to terminate it only on the general grounds of the Labor Code of the Russian Federation for fixed-term contracts (Chapter 13 of the Labor Code of the Russian Federation).

In the work book, unlike the order and the contract, it is impossible to indicate that the employee is temporarily hired by the company - neither the Labor Code, nor the Instruction for filling out work books, nor the Rules for maintaining and storing work books give permission for this. Otherwise, the company may be held administratively liable (

1. Article 59 of the Labor Code of the Russian Federation contains two parts, each of which provides different kinds works (cases) for the performance of which a fixed-term employment contract is concluded with the 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 subject 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, the employment contract retains the place of work (for example, while the employee is on a long business trip, on parental 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 be carried out only during a certain period (season), which, as a rule, does not exceed 6 months (see comments to article 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 on federal level social partnership (Part 2, Article 293, see comments to it).

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 public institutions RF, 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 may 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 is a need to perform work that goes beyond the normal 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 summer time and in connection with the expansion of the volume of services provided, hotels, cafes, restaurants, transport organizations, etc. can hire 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.

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 these employees on the basis of the expiration of the employment contract can be made 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 Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. No. 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. However, it should be kept in mind that if during judicial trial the fact of the repeated 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 Armed Forces of the Russian Federation of 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 commentary to Art. 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 the faculty or head of the 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) 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. 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. It's about on 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, job seekers. 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 body 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 special kind labor activity in the interests of society and the state, carried out by citizens in exchange for military service by invitation. 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 civil 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 higher than that established by the Law on military service the term of military service and is for citizens sent for its passage after January 1, 2008, 21 months. 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, 1.5 times exceeds the period of conscripted military service established by the Law on Military Duty and is 18 months for citizens sent for its passage 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 and consumer services- 20 people).

The concept and types of small businesses 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 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 those entered into the Unified State Register legal entities consumer cooperatives and commercial organizations (with the exception of state and municipal unitary enterprises), as well as individuals, entered in the Unified State Register of Individual Entrepreneurs and carrying out entrepreneurial activity without formation of a legal entity (hereinafter referred to as 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% (except for the assets of joint-stock investment funds and closed-end investment funds ), a share held by one or more legal entities, which are not subjects of 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 book 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 specified 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 areas 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, 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 - joint-stock company, limited liability company, 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). At the same time, 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 named 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 comments to Article 332).

E.A. answered the questions. Shapoval, lawyer, Ph.D. n.

We conclude, extend and terminate a fixed-term employment contract

The court decisions mentioned in the article can be found: "Judicial practice" section of the ConsultantPlus system

A fixed-term employment contract may be concluded if, taking into account the nature of the work or the conditions for its performance, it is impossible to conclude an agreement for an indefinite period. Art. 58 Labor Code of the Russian Federation. And to terminate such an agreement, it is enough to wait for the expiration of its term (of course, in the absence of other grounds). But not everything is as simple as it seems. Here are answers to the most common questions regarding such contracts.

A fixed-term employment contract with a pensioner is possible

A.N. Gladysheva, Samara

We offered a pensioner entering a job to conclude a fixed-term employment contract. But it requires the execution of a contract for an indefinite period. Do we have the right to insist on a fixed-term employment contract just because he is a pensioner?

: It is possible to conclude a fixed-term employment contract for a period of up to 5 years only if the pensioner himself agrees to this articles 58, 59 of the Labor Code of the Russian Federation. True, pensioners often appeal against the legitimacy of concluding fixed-term employment contracts with them. The courts take the side of the employer if the pensioner signed an employment contract containing a condition on its term, thereby expressing agreement with such a condition. Cassation ruling of the Rostov Regional Court dated April 25, 2011 No. 33-5663; Determination of the Moscow Regional Court dated November 17, 2011 No. 33-25523. But if the pensioner proves that consent to the conclusion of the contract was given involuntarily, then the court recognizes the contract as concluded for an indefinite period. clause 13 of the Decree of the Plenum of the Supreme Court of March 17, 2004 No. 2; Clause 3 of the motivational part of the Definition of the Constitutional Court of May 15, 2007 No. 378-O-P.

It should also be borne in mind that the unwillingness of a pensioner to conclude a fixed-term employment contract is not a basis for refusing employment. In such a situation, the employer will have to conclude a contract for an indefinite period.

In small businesses, a fixed-term contract can be concluded with any employee

M.I. Mavlyanova, Taman

We have 7 people in our company. Can we conclude fixed-term employment contracts with all employees?

The employer is a small business entity is an organization or entrepreneur, the number of employees of which does not exceed 35 people, and in the field of retail trade and consumer services - 20 people Art. 59 Labor Code of the Russian Federation.

: You can conclude a fixed-term employment contract with any employee if articles 58, 59 of the Labor Code of the Russian Federation:

• your company is a small business entity;
• the employee agrees to conclude a fixed-term employment contract for up to 5 years. But do not forget to indicate in the contract e Art. 57 of the Labor Code of the Russian Federation:

The term for which it is concluded;

basis for his conclusion. In your case, this is part 2 of Art. 59 of the Labor Code of the Russian Federation.

The condition of the term in the contract for the performance of specific work

NOT. Maxaim Trankova, Mozhaisk

We need to hire employees for the duration of a certain project. How can we indicate the term of the contract if the end date of this project is not yet known?

: In the employment contract, you need to indicate for which particular project the employee is hired. And as a period, indicate that the contract was concluded before the completion of the project (without specifying a specific date) Art. 59 of the Labor Code of the Russian Federation; Appeal rulings of the Moscow City Court of July 16, 2012 No. 11-14184, of May 14, 2014 No. 33-11227 / 2014.

1.5. The employment contract is valid until the completion of work on project No. 20-1, related to the fulfillment by the Employer of obligations under the contract dated 06/01/2015 No. 23/10, concluded with Design LLC.

But you must have documents confirming the existence of the project and the end of its validity. Appeal ruling of the St. Petersburg City Court dated June 10, 2014 No. 33-7964/2014. Otherwise, the employee will be able through the court to retrain the employment contract into an open-ended one.

When the project comes to an end, the date of its completion will become clear. 3 calendar days before this date, notify the employee about dismissal due to the expiration of the employment contract and Art. 79 Labor Code of the Russian Federation.

Work for up to 2 months is always temporary

I.Yu. Duyunova, Novorossiysk

We want to hire an employee to replace the main employee during a rather long vacation. What kind of fixed-term contract to conclude with him?

: If the planned vacation of the main employee is less than 2 months, you need to conclude a fixed-term employment contract with the replacement employee for up to 2 months in Art. 289 of the Labor Code of the Russian Federation. Then you cannot set a probationary period for a new employee when hiring, and for the time worked you will have to provide leave (or pay compensation for leave) at the rate of 2 working days for each month of work articles 289, 291 of the Labor Code of the Russian Federation.

If the vacation of the main employee lasts 2 months or more, then conclude a fixed-term employment contract with the new employee for the duration of the vacation of the main employee (for a period of 2 to 6 months) Art. 58 Labor Code of the Russian Federation. Then everything will be exactly the same for him as for the rest of the workers. That is, you can set him a trial period, but only up to 2 weeks Art. 70 of the Labor Code of the Russian Federation, and leave for hours worked (or compensation for unused leave upon dismissal) to provide in calendar days Art. 115 Labor Code of the Russian Federation.

A migrant’s patent is not a reason to conclude a fixed-term contract with him

S.A. Belonogov, St. Petersburg

We hire a citizen of Moldova with a patent. Do we think that a contract with him can be concluded only for the duration of the patent?

: The fact that you hire a foreigner with a patent that is valid for a certain period is not a basis for concluding a fixed-term employment contract, since there is no such basis in the Labor Code of the Russian Federation articles 58, 59 of the Labor Code of the Russian Federation. As with Russians, a fixed-term contract with migrants is concluded if the nature and conditions of work do not allow concluding a contract for an indefinite period articles 58, 59 of the Labor Code of the Russian Federation. After the expiration of the patent, the migrant worker must be removed from work Art. 327.5 of the Labor Code of the Russian Federation. If the employee does not renew the patent, then after 1 month from the expiration date of the patent, you simply dismiss him p. 5, part 1, part 2, art. 327.6 of the Labor Code of the Russian Federation.

Can a fixed term contract be extended?

E.A. Tereshchenko, Ulyanovsk

Taking into account the nature of the work, we have concluded a fixed-term employment contract with the employee for a period of 1 year. Can we extend the contract with the employee by changing the term of the contract?

: There is no definite answer to this question. There is an opinion that before the expiration of the employment contract with the employee, it is possible to conclude an additional agreement to the employment contract to change the term of its validity, if the circumstances in connection with which the contract was concluded for a certain period have not disappeared. Moreover, according to the courts, the extension of the term of the contract in such a situation does not indicate the repeated conclusion of a fixed-term employment contract, which entails for the employer the recognition of the employment contract as concluded for an indefinite period. Appellate ruling of the Supreme Court of the Chuvash Republic dated December 23, 2013 No. 33-4638/2013; Determination of the St. Petersburg City Court dated October 18, 2010 No. 33-14178 / 2010.

You can formulate a condition for extending the term of an employment contract as follows.

The employee and the employer agreed that the employment contract No. 3 dated 01.01.2014 was concluded for a period until 01.01.2016.

But there are courts that believe that the extension of a fixed-term employment contract violates the rights of the employee. And they recognize the extended fixed-term employment contract concluded for an indefinite period Determination of the Moscow City Court dated February 6, 2012 No. 4g / 3-114 / 12.

Therefore, when deciding to extend the term of an employment contract, it makes sense to familiarize yourself with the judicial practice in your region in similar cases.

Not all summer jobs are seasonal

G.A. Panarina, Shadrinsk

For the summer (June to August) we hired a vendor to sell vegetables and fruits on the street. Do we understand correctly that this is a seasonal job?

: Not. Seasonal work should be due to the peculiarities of climatic and other natural conditions (for example, rafting and logging; heating season in housing and communal services). Types of seasonal work are determined in special lists contained in Art. 293 of the Labor Code of the Russian Federation:

• in sectoral (intersectoral) federal social partnership agreements х see, for example, clause 2.A of the Industry Agreement on the organizations of the timber industry complex of the Russian Federation for 2015-2017. ; clause 3.7 of the sectoral tariff agreement in the housing and communal services of the Russian Federation for 2014-2016.;
• in normative legal acts, including acts former USSR operating in the part that does not contradict the Labor Code of the Russian Federation see, for example, the List, approved. Decree of the Government of 04.07.2002 No. 498; Art. 423 of the Labor Code of the Russian Federation; List of seasonal works, approved. Decree of the NCT of the USSR dated 11.10.32 No. 185.

You cannot set a probationary period of more than 2 weeks for a seasonal worker; during the time of work, he will need to be granted vacation (or pay compensation for vacation) at the rate of 2 working days for each month of work articles 70, 295 of the Labor Code of the Russian Federation.

Work as a seller does not apply to seasonal types of work, so you need to conclude a fixed-term employment contract with an employee for a period from 06/01/2015 to 08/31/2015 to perform obviously defined work. articles 58, 59 of the Labor Code of the Russian Federation.

What day to dismiss a temporary employee if the main employee left the care leave

I.Yu. Tupeeva, Kazan

We have a fixed-term contract with an employee for the duration of parental leave of the main employee. The main worker went to work without warning. When to fire a temporary worker, because we did not warn her about the dismissal?

: It all depends on how the condition on the term is formulated in the contract with the temporary worker. If the contract states that it is concluded for the period of temporary absence of a particular employee, then the day of dismissal (the last day of work) of the temporary employee will be the day preceding the day the main employee leaves maternity leave Art. 79 of the Labor Code of the Russian Federation; Letter of Rostrud dated October 31, 2007 No. 4413-6; ; Appeal decision of the Tula Regional Court dated November 27, 2014 No. 33-3260.

If the contract with a temporary worker states that it terminates when a particular employee returns to work, then the day of dismissal (the last day of work) of the temporary worker will be the day the main employee leaves maternity leave. Art. 79 of the Labor Code of the Russian Federation; Appeal rulings of the Krasnoyarsk Regional Court dated 06/09/2014 No. 33-5452 / 14A-09; Moscow City Court dated April 16, 2015 No. 33-6310/15.

In any case, you are not required to notify the temporary employee of the dismissal and Art. 79 of the Labor Code of the Russian Federation; Letter of Rostrud dated October 31, 2007 No. 4413-6; Appeal ruling of the Chelyabinsk Regional Court dated July 17, 2014 No. 11-6967/2014. But for the future - ask the main workers to inform you in advance about leaving work so that you can warn temporary workers about dismissal 3 calendar days in advance.

Is it possible to dismiss a temporary employee if the main employee quit without leaving parental leave

L.A. Efremova, Togliatti

We have entered into a fixed-term employment contract with the employee for a period of time maternity leave and parental leave of the main worker. The main employee quit own will without leaving vacation. Do we need to fire a temporary employee at the end of the vacation of the main employee?

: If the main employee quit during the period of parental leave without a work permit, you have no reason to dismiss the temporary employee. After all, the basis for terminating an employment contract with a temporary worker has disappeared. And you just have to change the condition on the term of the contract by concluding an additional agreement with the temporary worker to the employment contract with Art. 58 of the Labor Code of the Russian Federation; Letter of Rostrud dated November 20, 2006 No. 1904-6-1.

It is possible to formulate a condition on the transformation of a fixed-term contract into a contract for an indefinite period as follows.

The employee and the employer agreed that the employment contract No. 10 dated April 30, 2013 was concluded for an indefinite period.

But if the main worker issued a job and then quit of her own free will, then the temporary worker must be fired due to the expiration of the employment contract and Appeal ruling of the Omsk Regional Court dated June 27, 2012 No. 33-3641/12.

A temporary worker on sick leave can be fired

ON THE. Kisileva, Pskov

Can we dismiss an employee due to the expiration of the employment contract concluded for 1 year, if he is sick and will not be at work on the last day of the employment contract?

: Yes, you can. After all, it is forbidden to dismiss during illness only at the initiative of the employer. And dismissal due to the expiration of the employment contract does not apply to such grounds. p. 2 h. 1 art. 77, articles 79, 81 of the Labor Code of the Russian Federation; Determination of the Moscow City Court dated May 24, 2011 No. 33-15449.

But the fact that the employee is sick does not relieve you of the obligation to notify him of the upcoming dismissal and Art. 79 Labor Code of the Russian Federation. You can send him such notification by mail or telegram. Some courts, in the absence of such notice, reinstate the employee at work. Determination of the Moscow City Court dated February 14, 2011 No. 33-2941.

If on the day of dismissal (the last day of the term of the employment contract) the employee does not come to work, send a notification to his home address by registered mail about the need to come to the employer for work book or agree to send it by mail Art. 84.1 of the Labor Code of the Russian Federation. On this day, you also need:, part 1 of Art. 7 of the Law of December 29, 2006 No. 255-FZ.

The allowance must be accrued no later than 10 calendar days from the date the former employee submitted a certificate of incapacity for work. And you must pay him the allowance on the next day after the accrual of the allowance, set for the payment of salaries. Part 1 Art. 15 of the Law of December 29, 2006 No. 255-FZ.

When to fire an employee if the employment contract expires on a weekend

Fixed term contract ends on the weekend. What day to fire an employee?

: In such a situation, the end date of the term is considered to be the next business day following it Art. 14 Labor Code of the Russian Federation.

Is it possible to fire a former student due to the expiration of the employment contract?

S.A. Bragin, Vologda

Our company hired a full-time student on a fixed-term contract. Before the expiration of the employment contract, he was expelled from the university. Will we be able to fire him later due to the expiration of the employment contract?

: If the only reason for concluding an employment contract was that the employee is studying full-time, then after being expelled from the university, it is impossible to dismiss him due to the expiration of a fixed-term employment contract. After all, you no longer have the basis that served as the reason for concluding a fixed-term employment contract Art. 59 Labor Code of the Russian Federation.

A fixed-term employment contract becomes indefinite, which is formalized by an additional agreement to the employment contract. Above we gave an example of how you can formulate a condition on the term of the contract.

Is it possible to dismiss an employee who did not go to work on the last day of the contract term?

E.V. Mishukov, Astrakhan

3 days before the expiration of the employment contract, we warned the employee with whom a fixed-term employment contract was concluded about dismissal. He didn't show up for work the next day. Can we fire him if he doesn't show up on the last day of the contract, or should we wait until it's clear why he didn't show up?

: You can fire an employee on the last day of the term of the employment contract. Art. 79 Labor Code of the Russian Federation.

If you don’t do this, but you find out why he didn’t go to work, then the fixed-term employment contract will turn into an employment contract for an indefinite period Art. 58 Labor Code of the Russian Federation. And then you will not be able to dismiss the employee due to the expiration of the employment contract. p. 2 h. 1 art. 77 Labor Code of the Russian Federation. And you will have to look for other grounds for dismissing an employee as well. Determination of the Moscow Regional Court of August 18, 2011 No. 33-18584.

Is it possible to fire a “fixed-term” employee if the contract does not specify a period

K.A. Vakhteev, Smolensk

We hired an employee to carry out reconstruction work, but did not indicate this in the contract, and also did not indicate the duration of the contract. Can we dismiss an employee at the end of the reconstruction due to the expiration of the employment contract?

: If the term of its validity is not specified in the employment contract, then the contract is considered concluded for an indefinite period Art. 58 Labor Code of the Russian Federation. That is, it is impossible to dismiss an employee in connection with the expiration of the employment contract. You can dismiss him only on the general grounds provided for permanent employees.

We count the days of unused vacation if the fixed-term contract is terminated before the expiration of 2 months

ON THE. Nakul, Ryazan

The employee was hired during the leave of the main employee to care for the child until the child reaches the age of 3 years. But a month and a half after going on vacation, the main worker returned to work. For which days to calculate compensation for a temporary worker for vacation: for working days or for calendar days?

: The fact that the contract with a temporary worker terminated already one and a half months after the start of the vacation does not mean that it was originally concluded for a period of up to 2 months. Therefore, you need to calculate compensation for unused vacation for calendar days, and not for working days, as when concluding an agreement for up to 2 months in articles 120, 291 of the Labor Code of the Russian Federation.

A fixed-term employment contract - a sample of it is given in our article. In addition, in it we will tell you how to correctly draw up a document using a sample fixed-term employment contract, as well as provide an overview of the most common errors that occur during its execution.

Grounds for concluding a fixed-term employment contract

The grounds for concluding an urgent TD can be divided into 2 groups:

• Associated with the specific characteristics of future work (regulated in paragraphs 1-13 of article 59 of the Labor Code of the Russian Federation).
• Not related to the specifics of labor activity (regulated by paragraphs 14-25 of article 59 of the Labor Code of the Russian Federation). In this case, the preparation of an urgent TD is permissible only with the voluntary consent of both parties to the agreement (paragraph 2, clause 13 of the resolution of the plenum of the Supreme Court of the Russian Federation “On the application by the courts ...” dated March 17, 2004 No. 2).

The will of persons not listed in par. 14-25 Art. 59 of the Labor Code of the Russian Federation, when assessing the existing grounds for concluding an urgent TD, the judicial authority does not take into account (see the ruling of the Krasnoyarsk Regional Court dated November 28, 2012 in case No. 33-10385 / 2012).

An urgent TD concluded in the absence of sufficient grounds identified in a judicial proceeding can be qualified by a judicial authority as an indefinite one with all the ensuing legal consequences (including the reinstatement of a dismissed person at work, the payment of appropriate compensation, etc.).

Recognition by the courts of fixed-term employment contracts as concluded indefinitely: common situations

The judicial authority recognizes an urgent TD as valid indefinitely in the following cases:

1. The grounds for concluding an agreement are not spelled out (paragraph 10 of article 57 of the Labor Code of the Russian Federation). In order to avoid qualifying the contract as open-ended, the employer must prove that the grounds regulated by law actually existed, although they were not spelled out in the TD. For example, the ruling of the Kamchatka Regional Court of May 21, 2015 in case No. 33-808/2015 and the ruling of the Supreme Court of the Republic of Karelia of September 1, 2015 in case No. 33-3390/2015.
2. An urgent TD is concluded on the grounds regulated by par. 1-13 Art. 59 of the Labor Code of the Russian Federation, but in fact the functionality of the worker does not go beyond the standard activities of the organization (determination of the KhMAO-Yugra court dated December 6, 2011 in case No. 33-5544 / 2011).
3. Urgent TD signed with the head structural unit legal entity in the absence of other grounds, regulated by Art. 59 of the Labor Code of the Russian Federation. For the head of the structural unit, the rules of par. 21 art. 59 of the Labor Code of the Russian Federation do not apply (see the ruling of the Moscow City Court dated 12/18/2013 in case No. 4g / 8-12759).
4. An urgent TD is concluded under duress (paragraph 3, clause 13 of resolution No. 2). Usually, the court interprets the very fact of signing a contract by a person as his voluntary conclusion (for example, the decision of the Supreme Court of the Republic of Tatarstan dated 01.12.2014 in case No. 33-16227 / 2014). In the situation under consideration, witness statements can be cited as evidence of the forced signing of the TD (see the ruling of the Voronezh Regional Court dated January 25, 2011 No. 33-340).

Conclusion of a fixed-term employment contract: we determine the term

The longest period for which such an agreement may be entered into general principle is 5 years (Article 58 of the Labor Code of the Russian Federation).

The expiration of an urgent TD is tied to a specific date or the occurrence of certain circumstances. So, if an urgent TD was concluded for the performance of work, the exact date of completion of which cannot be established, the contract will be considered terminated upon completion of such work.

Another option is when an urgent TD is signed with an employee who is hired by an organization created for a predetermined period or to achieve a set goal. In this situation, the termination of an urgent TD is possible only in the event of the actual termination of the organization's activities without the transfer of its rights and obligations in the order of succession (clause 14 of Resolution No. 2).

Important! Identification of the fact of multiple conclusion of urgent TD for a short period to perform similar labor functions gives the judicial authority the right to recognize such an agreement, taking into account other circumstances in each specific case, concluded for an indefinite period.

For example, according to the ruling of the Pskov Regional Court dated June 11, 2013 in case No. 33-903 / 2013, the employer was unable to prove the validity of the repeated conclusion of urgent TD, in connection with which the relevant labor relations were recognized as established for an indefinite period.

In another situation, the court did not see in the fact of the repeated conclusion of urgent TD with the same person a violation of the norms of the Labor Code of the Russian Federation, since the need for just such registration of labor relations was directly related to the specifics of the work (see the definition of the Armed Forces of the Republic of Sakha (Yakutia) dated November 16, 2015 in case No. 33-4168/2015).

Termination of a fixed-term employment contract

The basis for the termination of an urgent TD is the expiration of its validity, depending on the date or event specified in it. The only exceptions will be situations where relations within the framework of the agreement de facto continue and none of the parties has expressed their intention to terminate them (clause 2, part 1, article 77 of the Labor Code of the Russian Federation).

The expiration of the term of the TD itself is recognized as the basis for the termination of relations under the relevant agreement. With permission controversial situations the courts point out that the circumstances associated with the expiration of the TD cannot depend on the will of the employer. Consequently, the guarantees regulated by the Labor Code of the Russian Federation for employees whose dismissal is initiated by the second party to the contract, in cases of termination of urgent TD on the grounds of paragraph 2 of Art. 77 of the Labor Code of the Russian Federation do not apply.

In this situation, the employee may be dismissed, including:

• during the period of temporary disability and being on vacation (determination of the Moscow Regional Court dated February 18, 2015 in case No. 33-3722 / 2015);
• while on parental leave (for example, the decision of the Irkutsk Regional Court dated November 19, 2014 in case No. 33-9495/14).

At the same time, the Labor Code of the Russian Federation provides pregnant employees with the right to apply to the employer with an application to extend the TD until the end of pregnancy or the end of maternity leave, if it was provided to her in the proper manner. The application must be accompanied by a medical certificate confirming the pregnancy. If these conditions are met, the employer cannot refuse to extend the term of the TD (paragraph 2 of article 261 of the Labor Code of the Russian Federation).

Labor relations in case of prolongation of a fixed-term employment contract or its transformation into an open-ended one

As mentioned above, an urgent TD can be transformed into an unlimited one if none of the parties to the legal relationship has filed a request to terminate the contract due to the expiration of its validity and the employee has not stopped performing work after the date or event associated with the end of such TD (paragraph 6, article 58 of the Labor Code of the Russian Federation).

Formally, the extension of an urgent TD is allowed by law in 2 cases:

• at the request of a pregnant employee in the framework of the norms of par. 2 tbsp. 261 of the Labor Code of the Russian Federation (the situation is discussed above);
• by written agreement of the parties in relation to a specialist in the pedagogical field, who is part of the teaching staff, elected to the position he fills by competition (paragraph 8 of article 332 of the Labor Code of the Russian Federation).

At the same time, Rostrud notes: the Labor Code of the Russian Federation assumes the admissibility of making adjustments to the TD, regardless of its type (urgent or unlimited), including in terms of changing its validity period (see letter dated 10/31/2007 No. 4413-6). Thus, an urgent TD can be extended by drawing up an additional agreement. While there is no limit to the number of such renewals, the maximum term for each must not exceed 5 years.

The law establishes that a dismissed employee working on an urgent TD must be notified by the employer of the termination of the contract at least 3 days in advance (paragraph 1 of article 79 of the Labor Code of the Russian Federation). Nevertheless, non-compliance by the employer with the regulations is not interpreted by the courts as a basis for recognizing the dismissal of an employee as illegal, and urgent TD - transformed into an indefinite one (see the ruling of the Irkutsk Regional Court dated January 23, 2013 in case No. 33-450 / 13).

So, the conclusion of an urgent TD must have sufficient legal grounds. Otherwise, such an agreement will be recognized as indefinite. The grounds for concluding an urgent TD should be spelled out in the text of the document. Otherwise, if disputes arise, the employer will have to prove their actual existence.

Violation by the employer of the procedure for notifying an employee of dismissal 3 days before the upcoming termination of an urgent TD in itself is not a basis for his reinstatement at work.