The conclusion of a fixed-term employment contract to replace a maternity worker is a fairly common case of hiring a temporary worker. Given that it has its own characteristics, employers often have many questions related to its execution and termination.

Such labor contract is concluded when an absent employee, in accordance with labor legislation and other regulatory legal acts containing norms labor law, collective agreement, agreement, local regulations, employment contract, the place of work is preserved. Recall workplace retained by the employee:

• if he is on a business trip;
• if he is on annual paid leave, on leave without pay, on study leave, on maternity leave, on leave to care for a child until he reaches the age of three years;
• during the period of temporary disability of the employee himself, as well as if he is on sick leave to care for a child under 14 years of age, a disabled child under 18 years of age, an adult family member in cases provided for by law;
• if he is on advanced training with a break from work;
• in other cases.

In the absence of an employee at work for one of the above reasons, in order not to disrupt the normal course of the organization's work, it is allowed to take another person in his place. The term of the employment contract in this case is made dependent on the time when the absent employee begins to fulfill his obligations. job duties.

Date of termination of a fixed-term contract: how to determine?

When concluding a fixed-term employment contract to replace a woman on maternity leave, the exact date of entry to work of the main employee is not always known. Despite the fact that parental leave is issued by order of the head of the organization, which indicates the end date, it is likely that she will leave the leave before the child is three years old. Labor law does not require such leave to last continuously for three years. The mother of the child (or any relative) may take him in parts (Article 256 Labor Code RF). This means that the employee has the right to interrupt this vacation at any time without additional agreement with the employer.

In this case, if a specific (later) date for the end of a fixed-term employment contract is indicated in the employment contract, difficulties may arise with the dismissal of a temporary worker. It will be possible for the employer to part with the employee only by mutual agreement of the parties (paragraph 1 of part one of Article 77 of the Labor Code of the Russian Federation) or (if the employee is against) he will have to wait until the end of the employment contract. And this will entail additional financial costs.

Therefore, in an employment contract with a temporary worker, we recommend that you indicate not a specific end date for its validity, but indicate that its validity is terminated by the date of exit from maternity leave. At the same time, the contract must necessarily indicate the reason for concluding a fixed-term employment contract and the person to replace whom the temporary worker is accepted.

Sample wording of an employment contract concluded to replace maternity leave (extract)

1.5. This employment contract is concluded in accordance with part 1 of article 59 of the Labor Code Russian Federation for the period of fulfillment of the duties of an absent employee, who, in accordance with labor legislation, retains a place of work, the leading economist of the economic department, Anna Viktorovna Kropova, who is on parental leave until the child reaches the age of three years.

1.6. Date of commencement of work: 15.05.2012

1.7. End date of work: exit from parental leave of the leading economist Kropova A.V.

It is important to note that in the order (instruction) of the employer on hiring, in the column "Date" the phrase is written: "the exit from parental leave of the leading economist Kropova A.V." In the column "Conditions for employment, nature of work" the phrase is indicated: "under a fixed-term employment contract, for the duration of the performance of the duties of an absent employee, who, in accordance with labor legislation, retains a place of work, article 59 of the Labor Code of the Russian Federation." The remaining columns of the order (instruction) are filled in in the usual manner. An employment record is entered in the work book without indicating that the employment contract is concluded for a certain period.

Expiration of the employment contract

This fixed-term employment contract terminates after the main employee enters work (paragraph 2 of the first part of Article 77 of the Labor Code of the Russian Federation). It is not required to warn the employee about the expiration of the employment contract 3 days in advance, as is done in other cases, since the employer himself may not know that the main employee will start work ahead of schedule. In this case, the day of dismissal will be the last working day preceding the day the main employee leaves (letter of Rostrud dated October 31, 2007 No. 4413-6).

For example, an employee decided to terminate parental leave early and returned to work on June 10. The employer only became aware of the end of her vacation on the day she returned to work - June 10. In this case, the last day of work of the “temporary” employee, accepted for the period of her absence, will be June 09. Upon dismissal, a "temporary" employee is paid all the amounts due, is handed over employment history.

It is worth noting that before the child reaches the age of three, a woman (or other relative of the child) has the right to go on parental leave again. In this case, the employer will have to look again for a "temporary" employee and conclude a new fixed-term employment contract with him.

Maternity leave followed by parental leave is granted to working women based on the relevant regulations of the Russian Labor Code. Any woman who has a baby has the right to take care of him for up to three years without working.

Throughout this three-year period, indicated in the law, an employee who has given birth to a child retains a workplace. In addition, she is given the opportunity to receive maternity and child benefits, accrued depending on earnings for the 2 years preceding the decree.

If an employee on maternity leave needs to resume work and, accordingly, interrupt the vacation granted, she needs to notify the employer's administration of her decision in advance.

I must say that today a woman working on maternity leave is not at all uncommon. Many modern mothers, while caring for a newborn baby, continue to work at home or go to work, but only for part of the day. Situations are not uncommon when a pregnant employee who has already received a sick leave at 30 weeks does not use the granted right to leave and works until the last, right up to childbirth.

Work during the period maternity leave has its own legal features. Consider the main five options that can occur when a woman enters work who has the right to be on maternity leave or on leave provided to all mothers to care for a young child:

• a pregnant employee continues to go to work after 30 weeks of pregnancy, already having the appropriate sick leave in her hands;
• a female employee returns to work ahead of schedule from the maternity leave granted by the employer;
• a woman works under a civil law agreement until the end of her maternity leave;
• an employee, while on leave to care for a newborn baby, works part-time;
• a woman goes to work full time, interrupting the leave intended for caring for a young child.

Continuation of work if a pregnant woman has a sick leave

With the payment of the prescribed maternity allowance, it is provided to a pregnant working woman at the 30-week gestation period (earlier in case of multiple pregnancy). The grounds for such leave, according to the rules, are:

• the corresponding application of the woman, drawn up by her in any form and submitted to the employer;
• certificate of incapacity for work issued by a medical institution in the prescribed form.

Based on these regulatory requirements, and given that a pregnant worker must write a statement, the maternity leave is her right, and not at all an imperative duty. Therefore, it can implement said right on own will.

The current Russian labor legislation does not provide for any specific restrictions on the ability of pregnant women to continue working during the established period of maternity leave. It follows that labor activity pregnant woman on maternity leave is completely legal.

If an employee who has a sick leave certificate in her hands, which gives her the right to the required maternity leave, does not present it to the employer of her own free will, she can visit the workplace and continue to work as long as possible and permissible, based on her state of health and desire.

However, women who do not want to take maternity leave on time should take into account that they will not be able to receive both maternity allowance and salary for the same period.

Unfortunately, the legislator did not provide for such a possibility. Assigned at 30 weeks of pregnancy, the maternity allowance is essentially a compensation for the earnings that a woman loses before childbirth. Maternity allowance assigned during vacation days for pregnancy and childbirth, is paid from the funds of the Russian Social Insurance Fund, since the employee's decree is an insured event.

If the employee prefers not to use the prescribed vacation and receive a salary at work, the insured event, accordingly, does not occur, and the FSS of the Russian Federation does not pay benefits for these days. Therefore, the continuation of labor activity in this situation is not always profitable and expedient from a financial point of view.

According to available regulatory clarifications of the Social Insurance Fund, set out in letter No. 02-10 / 11-6671 of the Russian FSS dated 08.10.2004, employees of enterprises who applied to the employer for maternity leave later than the day specified in the sick leave, subsequently receive maternity benefits based on the rest of the prescribed vacation days for pregnancy, childbirth.

And although the labor legislation does not directly address this issue, judicial law enforcement practice also proceeds from the above principle. Thus, in January 2010, the Federal Arbitration Court in the West Siberian District, in accordance with the proceedings No. A45-9720 / 2009, made a similar conclusion that the actually granted maternity leave may not coincide with the sick leave issued by the medical institution.

Thus, a woman who continues to work during the decree will not be able to receive all benefits, since labor activity on maternity leave, according to the rules, requires a reduction.

Early departure of an employee from maternity leave

The employer, on his own initiative, recall an employee from vacation pregnancy cannot, since this leave acts as a certain state guarantee. Such a guarantee, first of all, is aimed at caring for the health of the born baby and the mother herself, so the employee can use the leave provided until last day without losing your job.

However, the Russian Labor Code does not prohibit an employee from voluntarily interrupting this vacation and returning to work early. She can exercise the relevant right if the employer does not object to this (Rostrud letter No. 1755-TZ of 2013). To do this, a woman needs to submit an application containing a request to interrupt maternity leave. If management agrees, an employer order is issued allowing admission to work.

During this period, an employee who has left the decree ahead of schedule is accrued and paid a salary, so the accounting department of the employer will have to recalculate the previously paid maternity allowance.

According to existing rules, the above allowance is paid to the expectant mother by the employer even before leaving on maternity leave in full for all 140 days. If the woman went to work ahead of schedule, the corresponding part of the allowance is not required by the employer back, but simply sent to the account of future wages.

Consequently, for a certain period, the employee will work without actually receiving a salary. Nevertheless, according to Article 137 of the Labor Code, a woman who has left the decree ahead of schedule must return the excessively received maternity allowance to the employer only voluntarily. When a woman does not agree to this condition, the employer may refuse her the possibility of early exit to the workplace.

Work on civil law agreements in the decree

This is the most common and beneficial option for an employee on maternity leave when part of the benefit paid is not required to be returned. A woman, being on maternity leave provided by the employer, by agreement of the parties can perform some individual works and receive equal compensation. Such legal relations with the employer are formalized by contract agreements or paid provision services. As a result, the woman will retain the right to the paid maternity allowance in full.

Resuming work by a woman during parental leave

The leave provided by the employer to care for a recently born baby can be used by the mother (or other relative, guardian) immediately after the end of maternity leave, and at any time before the baby reaches the age of three. If, after the decree, the employee does not declare in writing that she is granted the due care leave, she has the right to immediately start work without drawing up any additional papers. Nevertheless, the employer himself has the right, according to the norms of the Labor Code, to withdraw a woman from such leave only with her consent.

By agreement with the employer, it is permissible for a woman to work part-time (a week) or work at home. In both of these situations, she will continue to be registered on parental leave according to personnel and accounting documents, fully retaining her child benefit payments. Consequently, in this case, the woman will receive both the salary for the time actually worked and the allowance due.

If, however, the woman caring for the child returns from full-time leave, she is no longer entitled to child allowance, so further payments of the allowance will cease.

A situation is possible when an employee went to work, but then some circumstances arose, for example, the child began to get sick more often, or the woman simply changed her mind. In this case, the employee has the right, when she wishes, to submit to the employer an application for the need to resume parental leave until the third anniversary of the child.

Employment contract 2014, 2015 - legal advice, conclusion. * Form of an employment contract with the director (in Word, doc format) - Download. terminate my employment contract during my maternity leave. Recruitment for the period of maternity leave * You draw up a regular job - an employment contract (in this case, an urgent one until the engineer Ivanova leaves her care leave. Ideal document: An order that will not allow. * One writes the reason for terminating the employment contract in the exact. during the absence of another employee (for example, during maternity leave). a fixed-term employment contract is concluded in accordance with Part 2 of Art. time of maternity leave and storage of work books, production of work forms Application for maternity leave: how to apply correctly? based on the basis of the application that is submitted to. know a few nuances that will help you do everything right and on time. work at the enterprises and with them the labor contract is concluded. franchises, samples of templates of documents, forms and forms for 2014. A fixed-term employment contract - from conclusion to termination. * A fixed-term employment contract is one of the types of employment contracts. Also, do not forget that according to article 261 of the Labor Code of the Russian Federation in the event of the expiration of a fixed-term employment contract during pregnancy. before she has the right to maternity leave (due to pregnancy and. Forms of documents © 2015. Entry in the work book about hiring for a while. * September 11, 2014. Fixed-term employment contract concluded with a new employee. for the period of maternity leave entry in the labor The book is made according to the Employment contract with a temporary employee | SPOK.BY * If any labor contract is concluded with the employee for a period of up to 2 months, and for. the contract concluded during the vacation of the main employee. Dismissal of an employee who works on a labor basis. I work under an employment contract for the duration of maternity leave of the main Employment contract concluded for the duration of Pregnancy and work What we are entitled to pregnancy * 1 July 2011. If your employment contract expires just in time. term, even if pregnancy occurs during this period (or if. Throughout the duration of the maternity leave, the woman will receive. up to 1.5 years in the place of the main employee Work in the place of the main employee who went on maternity leave * when the main employee returns to work during parental leave Termination of a fixed-term employment contract at the initiative of the employee Maternity leave and rights to benefits * You must be provided maternity leave in the presence of medical. if the employment contract was concluded for the period of performance of duties. help me figure out about maternity leave - Labor. * Topic help figure out about maternity leave in the section. for the period of mother's absence, conclude fixed-term employment contracts. for work during the employee's maternity leave , and at the end of the same. and childbirth. * 1 Aug 2014. She receives an allowance during her maternity leave. However, the Labor Code does not prohibit an employee at will. Labor Code of the Russian Federation Article 59. Fixed-term employment contract * for the duration of temporary (up to two months) work. By agreement of the parties, a fixed-term employment contract may be concluded. salary only in the form of a salary) to the place of an employee who is on maternity leave, and now. How to register an employee for maternity leave. * Dec 20, 2011. How to register an employee for maternity leave. employee documents - the Labor Code of the Russian Federation - an order form in the form T-1. Maternity leave - Wikipedia * During maternity leave, the employer is not entitled. having children, upon termination of the employment contract " Russian newspaper". Full information about going on maternity leave in Kazakhstan: how,. Changing the terms of an employment contract during maternity leave. * August 21, 2014. Changing the terms of an employment contract during an employee's maternity leave - answers from lawyers, legal assistance, etc.

We arrange for the work of a temporary employee for the period when the main employee is on maternity leave and parental leave

When an employee goes on maternity leave or parental leave, you have to look for a replacement for a while. Can:

(or) hire a new employee for her position (in particular, part-time) under a fixed-term employment contract (Articles 59, 60.1 of the Labor Code of the Russian Federation)

(or) temporarily transfer one of your employees to her position. At the same time, he is released from duties in his position for the duration of the transfer (Article 72.2 of the Labor Code of the Russian Federation)

(or) entrust the performance of all or part of her work to one of the employees on the terms of combination (Article 60.2 of the Labor Code of the Russian Federation) or internal combination (Article 60.1 of the Labor Code of the Russian Federation).

Given the fact that the main employee is on vacation, as a rule, long time(from several months to 3 years), most often resort to the first two options. Consider the nuances of applying for a job and dismissing temporary workers in these cases.

We draw up a fixed-term employment contract

It is important to correctly formulate the conditions for the term of the contract and the moment of its termination (Article 59 of the Labor Code of the Russian Federation). Otherwise, if the main employee leaves the vacation, you will have two employees at one workplace for some period.

Indicate in the contract with a temporary worker its validity period as a specific calendar date is not worth it. Despite the fact that maternity leave is granted for a certain number of days, it can be extended (Article 255 of the Labor Code of the Russian Federation, Article 7 federal law dated 05/19/1995 N 81-FZ "On state benefits to citizens with children" (hereinafter - Law N 81-FZ) paragraphs 46 - 48 of the Procedure for issuing sick leave certificates, approved. Order of the Ministry of Health and Social Development of Russia dated June 29, 2011 N 624n).

As for parental leave, the main employee may not go on it. And if she nevertheless goes on this vacation, then she can interrupt it at any time and go to work before the child turns 3 years old (Article 256 of the Labor Code of the Russian Federation).

Therefore, the only correct option is to prescribe a condition on the term of the contract as a period of absence from work of the main employee both in connection with maternity leave and in connection with parental leave.

Rostrud explained to us how to determine the last day of work of a temporary worker in the event that the main employee leaves the vacation.

Shklovets Ivan Ivanovich, Deputy Head Federal Service for work and employment

"The day of termination of the employment contract in all cases is the last day of the employee's work, except for cases when the employee did not actually work, but in accordance with the Labor Code of the Russian Federation or other federal law, the place of work (position) was retained (Article 84.1 of the Labor Code of the Russian Federation).

In this situation, the last day of work and, accordingly, the day of dismissal of an employee hired for the period of absence of the main employee will be the day preceding the day the main employee leaves (Letter of Rostrud dated October 31, 2007 N 4413-6). On the last day of work, the employee should be given a work book and make the final settlement with him. The employer must be ready to issue a work book and make the final payment in any case. If the main worker goes to work when the child reaches 3 years old, the date of her going to work is known in advance. If the main worker goes to work ahead of schedule, before the child reaches 3 years old, she, as a rule, submits an application in advance.

However, if the main employee does not warn you in advance about her early exit from parental leave, then it may turn out that two employees will be in the same workplace on the same day. To avoid this, it is better to indicate in a fixed-term employment contract with a temporary worker the moment of its termination as a specific event - the main employee's entry to work. At the same time, the day of dismissal. that is, the last day of work of a temporary worker will be the working day preceding the day the main worker leaves the vacation.

These conditions in the contract can be formulated as follows.

6. The employment contract is urgent and is concluded for the period of temporary absence of the accountant Petrova I.I. in connection with the birth and care of a child.

27. The employment contract is terminated on the working day preceding the day Petrova I.I.

If you entered into an employment contract with a temporary worker only for the period of maternity leave, and the main employee immediately after its completion took parental leave, there is nothing to worry about. Rostrud recommends simply drawing up an additional agreement and extending the employment contract (Article 79 of the Labor Code of the Russian Federation). Of course, with the consent of a temporary worker (after all, by this time he can find another job for himself).

The clause of the additional agreement, which changes the condition on the term of the employment contract, can be formulated as follows.

1. Extend the term of the employment contract dated May 23, 2011 N 21 for the period of the cashier E.A. Tikhomirova’s stay. on parental leave until the child reaches the age of 3 years.

In the work book of a temporary worker, when making an entry for employment, it is not necessary to indicate that he has been concluded fixed-term contract, as well as the fact that it was extended.

Breaking up with a temporary worker

Recall that the employer is obliged to notify the employee with whom a fixed-term employment contract has been concluded of its termination 3 calendar days. But this rule does not apply if the temporary worker is hired for the duration of maternity leave or parental leave of the main employee.

An employee who was taken on maternity leave also goes on maternity leave

Things get more complicated if the worker who was hired during the main worker's decree is also preparing to become a mother. Questions arise as to whether she can be fired, how to formalize this correctly and whether you should pay her benefits.

We fire a temporary worker

Two situations are possible here.

Situation 1. At the time of the expiration of the employment contract (that is, at the time the main employee leaves the vacation), the temporary worker is pregnant.

A pregnant temporary worker, both before going on maternity leave and during this leave, can be dismissed due to the expiration of the employment contract only if two conditions are present simultaneously (Article 261 of the Labor Code of the Russian Federation):

A fixed-term employment contract was concluded with her during the absence of the main employee in connection with the birth and care of a child, and not just a fixed-term employment contract

Your organization does not have a suitable vacant position or a job to which she can be transferred before the end of her pregnancy, or she has refused a position or job offered to her.

We tell the manager

If a fixed-term employment contract is concluded for the duration of the maternity leave of the main employee. the company is not obliged to warn the temporary employee about the impending dismissal (Article 79 of the Labor Code of the Russian Federation).

We tell the manager

It is necessary to offer a temporary worker only work that corresponds to her qualifications or requires a lower qualification, which she can perform taking into account her state of health. And you need to offer her all the vacancies your organization has in the area. It is necessary to offer vacancies in other areas only if it is provided for by the collective agreement, agreements, labor contract.

Note

The situation under consideration must be distinguished from the situation when an ordinary fixed-term employment contract was concluded with the employee (not for the duration of the decree), but at the time of its expiration it turned out that she was pregnant. In such a situation, upon her written application and upon presentation of a medical certificate confirming the state of pregnancy, it is necessary to extend the term of the employment contract until the end of the pregnancy.

If you have suitable job and the woman has given written consent to the transfer, then the fixed-term employment contract with the temporary worker must be extended until the end of the pregnancy. What can be considered the end of pregnancy?

Until the temporary worker goes on maternity leave, you have the right to request a certificate from her confirming the state of pregnancy. If the certificate does not confirm the pregnancy, then you can safely terminate the fixed-term employment contract with it. If you do not do this, then the employment contract with the employee will be considered concluded for an indefinite period (Articles 58, 261 of the Labor Code of the Russian Federation).

After going on maternity leave, a temporary worker can be fired by the date of birth of the child, regardless of when you learned about it.

Situation 2. At the time the main employee starts working, the temporary employee is on parental leave.

You can dismiss her due to the expiration of the employment contract. After all, it is impossible to dismiss, at the initiative of the employer, a woman who has a child under the age of 3 years, only in certain cases. Termination of an employment contract due to the expiration of its term (in this case, in connection with the entry to work of the main employee) (Clause 2, part 1, article 77, article 79 of the Labor Code of the Russian Federation) is not a dismissal at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation) .

We pay benefits to temporary workers

You are required to pay maternity benefit to a temporary worker if:

(or) her maternity leave came before the expiration of the employment contract, that is, before the main employee went to work

(or) you transfer her to another job after the main employee returns to work and extend the employment contract with her until the end of the pregnancy.

In both cases, you need to pay her an allowance for the entire period of maternity leave (Part 1, Article 10 of the Federal Law of December 29, 2006 N 255-ФЗ "On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Motherhood" (hereinafter - Law N 255-FZ) part 1 article 7 of Law N 81-FZ). After all, at the time of her vacation, she worked in your organization. And the fact that you then fire her by the date of the birth of the child does not matter.

If, during the term of a fixed-term employment contract concluded during the absence of the main employee in connection with the birth and care of a child, the temporary employee herself managed to go not only on maternity leave, but also on parental leave, then the allowance to care for a child under the age of one and a half years, you are obliged to pay her only until the moment of dismissal. After all, from that moment on, parental leave ceases for her (Article 11.1 of Law N 255-FZ, part 1 of article 14 of Law N 81-FZ).

We tell the employee

After being fired while on maternity leave. who is not yet one and a half years old, you can contact:

(or) for a minimum allowance for child care to the social security authority at the place of residence (Articles 13, 15 of Law N 81-FZ, paragraphs "e", paragraph 39, paragraphs "c" paragraph 45, paragraphs "b" p 46 of the Procedure and conditions for the appointment and payment of state benefits to citizens with children, approved by Order of the Ministry of Health and Social Development of Russia dated December 23, 2009 N 1012n (hereinafter - Order N 1012n))

(or) for employment and unemployment benefits to the employment center (Clause 40 of Order N 1012n, Article 3, 31 of the Law of the Russian Federation of 19.04.1991 N 1032-1 "On Employment in the Russian Federation").

Temporary worker becomes permanent

If the main employee quits of her own free will, without leaving the vacation, and you want the temporary employee to stay with you, you do not need to fire him and conclude a new employment contract with him. If you do not fire him, the fixed-term employment contract will automatically become indefinite (Article 58 of the Labor Code of the Russian Federation).

Is it possible in such a situation to dismiss a temporary worker if you do not want him to stay with you to work permanently, we were told in Rostrud.

Shklovets I.I. Rostrud

"If in an employment contract with an employee hired for the period of the main employee's absence, the expiration date of the contract is determined by the main employee's return to work, then in the event of the main employee's dismissal of his own free will during parental leave, there are grounds for terminating the employment contract with temporary the employee is not available. It remains for the employer to amend the employment contract in terms of its validity period. "

It turns out that if the main employee does not go to work of his own free will before dismissal, then you will not be able to dismiss the temporary employee.

Making a temporary transfer

By general rule upon agreement with the employee, it is possible to transfer him to another job for up to 1 year. At the same time, he is released from duties in his position for the duration of the transfer. However, if you are transferring an employee to replace a temporarily absent employee who is on maternity or parental leave, the transfer time may be longer. That is, until the temporarily absent employee goes to work (Article 72.2 of the Labor Code of the Russian Federation).

The term of a temporary transfer in the additional agreement on the transfer is determined according to the same rules as the term in the employment contract with a temporary worker, which we talked about.

At the same time, in the work book an entry about temporary transfer do not need to.

However, if the main employee leaves of her own free will during the vacation, and you want to leave the transferred employee in her position and he agrees with this, then the transfer will become permanent. Then you will need to make an entry about the permanent transfer in the work book of the transferred employee from the first day of work in a new position, and not after the end of the temporary transfer period (Clause 4 of the Rules for maintaining and storing work books, preparing work book forms and providing them to employers, approved by Decree of the Government of the Russian Federation of April 16, 2003 N 225).

But if you do not want the transferred worker to permanently work in this position, then he has no advantages in such a situation. That is, you are not required to leave him in this position permanently. Therefore, after the dismissal of the main employee, you can return him to his previous position, and take a new, more suitable employee to the vacant position.

This was confirmed to us in Rostrud.

Shklovets I.I. Rostrud

"By agreement of the parties, concluded in writing, an employee may be temporarily transferred to another job with the same employer to replace a temporarily absent employee, who, in accordance with the law, retains his job, until this employee returns to work. If at the end of the term transfer, the previous job was not provided to the employee, but he did not demand its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer becomes invalid and the transfer is considered permanent (Article 72.2 of the Labor Code of the Russian Federation).

In this situation, the employer has the opportunity to provide the employee with the previous job by issuing an appropriate order. The employee must return to their original place of work. Remaining in this position is possible only by agreement of the parties.

As they say, there is nothing more permanent than temporary. Often, an employee who was hired for the duration of the decree of the main employee remains to work in the company. Just remember to format it correctly.

Document Author

FIXED-TERM EMPLOYMENT CONTRACT

(part-time work)

g.____________________ ___________________ of the year

LLC ________ represented by the General Director __________, acting on the basis of the Charter, hereinafter referred to as the Employer, on the one hand, and

Citizen of the Russian Federation _____________ passport series ____ No. _____, issued by ______, registered at the address: _____________________________________________________________________________, hereinafter referred to as the Employee, on the other hand, collectively referred to as the parties, have concluded this agreement (hereinafter referred to as the Agreement) as follows:

1. THE SUBJECT OF THE AGREEMENT

1.1. The Employer instructs, and the Employee assumes the performance of labor duties in the position of ________ with the Employer, for the period the main employee _____ (hereinafter referred to as the Main Employee) is on maternity leave.

1.2. This Agreement is concluded in accordance with paragraph 2 of Part 1 of Article 59 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), and the Employee assumes the performance of the labor duties of the Main Employee exclusively for the period the Main Employee is on maternity leave, for which (the Main Employee) in accordance with labor legislation, the place of work is preserved.

1.3. Work under this agreement is a part-time job for the Employee.

1.4. Part-time work is performed by the Employee at the place of his main job.

1.5. The performance of the Employee's labor duties under this contract is carried out under normal conditions. The work obligations of the Employee are not related to the performance heavy work, work in areas with special climatic conditions, work with harmful, dangerous and other special working conditions.

1.6. The employee reports directly to CEO Employer.

2. TERM OF THE CONTRACT

2.1. The employee must begin to perform his labor duties from ___________ _________.

2.2. This contract is urgent (paragraph 2, part 1, article 59 of the Labor Code of the Russian Federation), and is valid until the day the Principal Employee goes to work with the Employer, regardless of whether the Principal Employee leaves before the end of the maternity leave, or after such a vacation. This agreement shall cease to be effective from the day the Principal Employee enters work with the Employer.

3. CONDITIONS OF PAYMENT OF THE EMPLOYEE

3.1. The Employee is paid in proportion to the hours worked based on the salary established by the Employer's staffing table for this position.

3.2. Overtime is paid for the first two hours of work at one and a half times, for subsequent hours - at double the rate. At the request of the employee overtime work instead of increased pay, it can be compensated by the provision of additional rest time, but not less than the time worked overtime.

3.3. Work on weekends and non-working holidays is paid in the amount of a single part official salary for a day or hour of work in excess of the official salary, if work on a weekend or non-working holiday was carried out within the monthly norm of working hours, and in the amount of a double part of the official salary for a day or hour of work in excess of the official salary, if the work was carried out in excess of the monthly norm of working hours. At the request of the Employee, who worked on a weekend or non-working holiday, he may be given another day of rest. In this case, work on a weekend or non-working holiday is paid in a single amount, and the day of rest is not subject to payment.

3.4. Wages are paid to the Employee by transfer to the Employee's bank account twice a month on the days established by the rules of the internal work schedule Employer.

3.5. Deductions may be made from the Employee's salary in cases stipulated by the legislation of the Russian Federation.

4. MODE OF WORKING TIME AND REST TIME

4.1. The employee is given a five-day work week with two days off - Saturday and Sunday.

4.2. The start and end time of work is determined by the Employee independently, taking into account the working hours of the Employer's organization, based on the fact that the duration of working time per day should not exceed four hours. On days when the Employee is free from the performance of labor duties at the main place of work, he can work part-time full-time.

4.3. Within one month, the duration of working hours when the Employee works part-time should not exceed half of the monthly norm of working hours established for the corresponding category of employees.

4.4. The employee is granted annual paid leave of 28 calendar days.

Annual paid holidays are granted to the Employee simultaneously with the leave for the main job. If the Employee has not worked for 6 months, then leave is provided in advance.

4.5. For family reasons and others 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.

5. RIGHTS AND OBLIGATIONS OF THE EMPLOYEE

5.1. In accordance with this Agreement, the Employee is obliged to fulfill in good faith the following official duties:

5.1.1. Organize the work of staging and maintaining accounting organization in order to obtain complete and reliable information about its financial and economic activities and financial position by interested internal and external users.

5.1.2. Form in accordance with the legislation on accounting accounting policy based on the specifics of business conditions, structure, size, industry affiliation and other features of the organization's activities, which allows timely receipt of information for planning, analysis, control, evaluation financial position and performance of the organization.

5.1.3. Lead the work: on the preparation and approval of the working plan of accounts of accounting, containing synthetic and analytical accounts, forms of primary accounting documents used for registration business transactions, forms of internal financial statements to ensure the procedure for conducting an inventory and valuation of property and liabilities, documentary evidence their presence, condition and evaluation.

5.1.4. Carry out other duties assigned to the position __________ Qualification guide positions of managers, specialists and other employees, approved by the Decree of the Ministry of Labor of the Russian Federation of August 21, 1998 No. 37.

5.2. The employee is obliged:

5.2.1. Comply with the Internal Labor Regulations of the Employer and other local regulations Employer.

5.2.2. Observe labor discipline.

5.2.3. Comply with labor protection and labor safety requirements.

5.2.4. Take care of the property of the Employer and other employees.

5.2.5. Immediately inform the Employer or immediate supervisor about the occurrence of a situation that poses a threat to the life and health of people, the safety of the Employer's property.

5.2.6. Do not give interviews, do not hold meetings and negotiations regarding the activities of the Employer, without prior permission from the management.

5.2.7. Do not disclose information that is trade secret Employer.

5.3. The employee has the right to:

5.3.1. Providing him with the work stipulated by this Agreement.

5.3.2. Timely and in full payment of wages in accordance with their qualifications, complexity of work, quantity and quality of work performed.

5.3.3. Rest, including on paid annual vacation, weekly holidays, non-working holidays.

5.3.4. Compulsory social insurance in cases stipulated by federal laws.

5.3.5. Other rights established by the current legislation of the Russian Federation.

6. RIGHTS AND OBLIGATIONS OF THE EMPLOYER

6.1. The employer is obliged:

6.1.1. Comply with laws and other regulatory legal acts, local regulations, the terms of this Agreement.

6.1.2. Provide the Employee with the work stipulated by this agreement.

6.1.3. Provide the Employee with equipment, technical documentation and other means necessary for the performance of their labor duties.

6.1.4. Pay in full size due to the Employee wages within the time limits established by the Internal Labor Regulations.

6.1.5. Provide for the daily needs of the Employee related to the performance of their labor duties.

6.1.6. Carry out compulsory social insurance of the Employee in the manner prescribed by federal laws.

6.1.7. Perform other duties established by the current legislation of the Russian Federation.

6.2. The employer has the right:

6.2.1. Encourage the Employee for conscientious efficient work.

6.2.2. Require the Employee to fulfill the labor duties specified in this agreement, respect the property of the Employer and other employees, and comply with the Internal Labor Regulations.

6.2.3. Involve the Employee in disciplinary and liability in the manner prescribed by the current legislation of the Russian Federation.

6.2.4. Adopt local regulations.

6.2.5. Exercise other rights provided for by the current legislation of the Russian Federation, local regulations.

7. EMPLOYEE SOCIAL INSURANCE

7.1. The employee is subject to social insurance in the manner and on the terms established by the current legislation of the Russian Federation.

8. WARRANTY AND REFUND

8.1. For the period of validity of this Agreement, the Employee shall be subject to all guarantees and compensations provided for by the labor legislation of the Russian Federation, local acts of the Employer and this Agreement.

9. RESPONSIBILITIES OF THE PARTIES

9.1. In the event of non-fulfillment or improper fulfillment by the Employee of his obligations specified in this agreement, violation of labor legislation, the Employer's internal labor regulations, other local regulations of the Employer, as well as causing material damage to the Employer, he shall bear disciplinary, material and other liability in accordance with the current legislation of the Russian Federation.

9.2. The Employer bears material and other liability to the Employee in accordance with the current legislation of the Russian Federation.

9.3. In the cases provided for by law, the Employer is obliged to compensate the Employee for moral damage caused by illegal actions and / or inaction of the Employer.

10. TERMINATION

10.1. This Agreement shall terminate from the day the Principal Employee enters work with the Employer, regardless of whether the Principal Employee leaves before the end of the maternity leave, or after the end of such leave.

10.2. This Agreement may also be terminated for other reasons provided for by the current labor legislation of the Russian Federation, before the expiration of its validity.

11. FINAL PROVISIONS

11.1. The terms of this Agreement are confidential and not subject to disclosure.

11.2. The terms of this Agreement are legally binding on the parties from the moment it is signed by both parties. All changes and additions to this Agreement are formalized by a bilateral written agreement.

11.3. Disputes between the parties arising from the performance of an employment contract are considered in the manner prescribed by the current legislation of the Russian Federation.

11.4. In all other respects that are not provided for by this employment contract, the parties are guided by the legislation of the Russian Federation governing labor Relations.

11.5. The Agreement is made in two copies, having the same legal force, one of which is kept by the Employer, and the other by the Employee.

12. DETAILS AND SIGNATURES OF THE PARTIES

Employer:

OOO __________,

The subtleties of a fixed-term employment contract during maternity leave

About the contract for the period of maternity leave. My wife is employed under a fixed-term employment contract for the period of maternity leave to care for a child up to 3 years (during the absence of an employee). On July 1, 2013, that employee returns to work due to the end of parental leave. My wife herself gave birth during the period of work and went on leave to care for a child up to 3 years old, which ends on 10/09/2013 (the application for leave was written exactly up to 3 years old, and not before the expiration of the fixed-term contract). On May 13, 2013, my wife goes on maternity leave for her second pregnancy (sick leave before and after childbirth for 140 days) which will end on September 29, 2013. There are no problems with sick leave, the employer will pay it.

1) Will my wife be fired at the end of the maternity sick leave (09/29/2013)

2) My wife will be fired at the end of parental leave up to 3 years for the first child (09.10.2013)

3) there are some conditions so that, without dismissing, they provide leave to care for a child up to 1.5 (3 years) for a second child (the most desirable option) and what needs to be done for this. What is the maximum period of maternity leave under the labor code?

Document. What employment contract is concluded for the period of “maternity” leave?

What is the employment contract

for a maternity leave?

“Maternity leave” is a term that has been firmly rooted in the minds of our citizens since Soviet times, but it is absent in Ukrainian legislation. We associate this term with a woman who is granted leave in connection with pregnancy, childbirth, and then to care for a child until the latter reaches the age of three.

Naturally, while a woman is on “maternity leave”, her place needs to be replaced by someone. The hiring of a person for the position of “maternity worker” is a typical example of a fixed-term employment contract.

However, when a woman or a man is offered a job in the place of an employee who is on “maternity leave”, they have a natural question: do they need to indicate in their work books that they were hired for the period of the main employee’s vacation? Is it reflected in any other documents?

The current legislation provides that for the period of the employee's social leave (to care for a child), another employee is hired under a fixed-term employment contract, as a reservation is made in the employment order.

An entry on the urgent nature of the employment contract is not entered in the work book. That is, the author focuses on the fact that an entry in the work book must be made, but it should not contain a mention of a “fixed-term” employment contract or the expression “accepted for a period from ___ to ___”.

It should not be forgotten that work books are maintained for all employees who work at enterprises of all forms of ownership or individuals over five days, including for persons who are:

Co-owners (owners) of enterprises, peasant (farm) enterprises

Seasonal and temporary workers

Freelance workers, provided that they are subject to state social insurance.

This is required by labor legislation, as well as Instruction No. 58.

All data on the urgent nature of the contract must be in the employee's personal file. We remind you that in the order for employment, it must be noted that the employee is hired under a fixed-term employment contract. The absence of such wording in the order may lead to the recognition of the employment contract as concluded for an indefinite period.

Indeed, according to Art. 23 of the Labor Code of Ukraine, an employment contract can be:

Indefinitely, indefinitely

Imprisoned for a certain period, established by agreement of the parties

Imprisoned for the duration of certain work.

In order to avoid all sorts of problems and disputes when applying for a job, a new employee should indicate the urgency of the employment contract in the application for employment during the “maternity leave”. For example: I ask you to accept me as a cashier for the period of maternity leave and childcare until he reaches the age of three Shatokhina A.L.

If a situation arose when the “maternity leave” intended to go to work immediately after the maternity leave, but then changed her mind and first took the annual main leave, and then the leave to care for the child until he reaches the age of three, then dismissing the new employee is not need.

The employer must issue an order to extend the fixed-term contract with the hired employee for the duration of the “main” employee on parental leave until the child reaches the age of three.

In this case, the employment contract will not be considered concluded indefinitely, since it is concluded in accordance with part two of Art. 23 of the Labor Code of Ukraine, according to which a fixed-term employment contract is concluded in cases where labor relations cannot be established for an indefinite period, taking into account the conditions for performing work, that is, in our case, the work of an “urgent” employee, although permanent, has already been accepted for its implementation a “main” employee who cannot perform his job duties for a certain period.

The basis for termination of the employment contract, in accordance with paragraph 2 of Art. 36 Labor Code of Ukraine, is the end of the employment contract in accordance with paragraph. 2 and 3 Art. 23 of the Labor Code of Ukraine, except for cases when the employment relationship actually lasts and none of the parties has put forward a demand for their termination.

So the day before the release full-time employee from maternity leave (about which he submits an appropriate application), an employee working in a “maternity” position is subject to dismissal under paragraph 2 of Art. 36 Labor Code of Ukraine. An employee entitled to parental leave is not limited in the right to withdraw from this leave at any time and is not limited in the right to take such leave again - until the child reaches the appropriate age (3 years or 6 years - if the child needs care according to medical advice).

Thus, if the “maternity leave” comes out of vacation, but the new employee is not given an order to dismiss (in this case, the application is not submitted by the new employee), then we can assume that he was accepted for an indefinite period.

Therefore, if at the end of the term of the employment contract, the employment relationship actually continues and none of the parties requires their termination, then the validity of this contract is considered extended for an indefinite period (Article 39-1 of the Labor Code of Ukraine). In this case, the next dismissal of an employee should be carried out on a general basis.

It often happens that an “urgent” worker is left on purpose, since the practice of illness of young children who are sent to nurseries or kindergartens is well known. The management of the enterprise may also give preference to the work experience of a new employee or transfer him to another job or position in the same enterprise.

Thus, employees who intend to work under a fixed-term employment contract need to correctly draw up applications, and when reading the order, check the conditions under which they are hired.

In case of non-attendance at the time specified in the application, the main employee of the new employee does not have the right to dismiss. After all, the term of the employment contract depends precisely on the entry to work of the main employee, and not on a specific date, even if it was indicated in the application.

List of used documents

Labor Code of Ukraine - Labor Code of Ukraine

Instruction No. 58 - Instructions on the procedure for maintaining work books of employees, approved by order of the Ministry of Labor of Ukraine, the Ministry of Social Protection of Ukraine, the Ministry of Justice of Ukraine dated July 29, 1993 No. 58

“Express analysis of legislative and regulatory acts”, No. 14-15 (744-745),

mari_010, Read this: Question: An employee with whom a fixed-term employment contract has been granted maternity leave. On the date of birth of the child, the employment contract will still be in force, the contract terminates approximately three months after the birth of the child. What benefits should the employer pay to the employee in this case?

Answer: First of all, we note that in accordance with Art. 261 of the Labor Code of the Russian Federation, termination of an employment contract at the initiative of an employer with pregnant women is not allowed, except in cases of liquidation of an organization or termination of activity by an individual entrepreneur.
In the event of 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 validity of the employment contract until the end of pregnancy.
Federal Law No. 81-FZ of May 19, 1995 "On State Benefits for Citizens with Children" establishes the following benefits for citizens with children:
- allowance for pregnancy and childbirth;
- a one-time allowance for women registered in medical institutions in early dates pregnancy;
- one-time allowance for the birth of a child;
- allowance for child care until the child reaches the age of one and a half years.
Women who are subject to compulsory social insurance, in particular, those working under labor contracts, have the right to pregnancy and childbirth benefits (Article 2 of the Federal Law of December 29, 2006 N 255-FZ "On the provision of benefits for temporary disability, compulsory social insurance).
The appointment and payment of benefits for pregnancy and childbirth is carried out by the employer at the woman's place of work (clause 1, article 13 of Law N 255-FZ).
Since the employment contract will continue to be valid during the maternity leave, the employer is obliged to pay the maternity benefit.
The right to a one-time allowance in addition to the allowance for pregnancy and childbirth is given to women who are registered with medical institutions in the early stages of pregnancy (Article 9 of Law N 81-FZ).
This allowance is assigned and paid at the place of destination and payment of maternity benefits (clause 17 of the Regulations on the appointment and payment of state benefits to citizens with children, approved by Decree of the Government of the Russian Federation of December 30, 2006 N 865).
Thus, in this case, the benefit is also paid by the employer.
One of the parents has the right to a one-time allowance at the birth of a child (Article 11 of Law N 81-FZ). A one-time allowance at the birth of a child is assigned and paid to one of the parents or the person replacing him at the place of work (service, study), and if the parents or the person replacing them do not work (do not serve, do not study), - by the body of social protection of the population at the place of residence of the child (clause 23 of the Regulations).
You can apply for the payment of this benefit within 6 months from the date of birth of the child (paragraph 55 of the Regulations).
Therefore, in the event that a woman applies for a benefit during the term of the employment contract, the benefit is paid by the employer. If, by the time the employment contract is terminated, the woman still does not apply to the employer with an application for payment of benefits, the benefit is paid by the social protection authority at the place of residence of the child.
Mothers or fathers, other relatives, guardians who actually care for the child, who are subject to compulsory social insurance (i.e., working under employment contracts) and who are on leave to care, have the right to a monthly allowance for caring for a child until the age of one and a half years for a child (clause 35 of the Regulations).
That is, only working mothers (fathers) who are on parental leave have the right to a monthly childcare allowance.
Therefore, upon termination of the employment contract, the mother (father) of the child loses the right to receive a monthly allowance for child care.
The right to this benefit is retained only as a result of dismissal on the grounds listed in paragraphs. "g" clause 35 of the Regulations, in particular in the event of liquidation of the employing organization.
Thus, the employer pays a monthly allowance to a mother on parental leave only until the termination of the employment contract due to its expiration. After termination of the contract, the payment of benefits ceases.

At work, an employee went on maternity leave and, consequently, a maternity position was vacated. What pitfalls may arise when working at this place, we will consider in this article.

General points

Maternity position -) this is a vacant seat while a pregnant employee is on vacation

As a rule, a vacant seat while a pregnant employee is on vacation implies the emergence of personnel rotations. The employer for this period is looking for an appropriate replacement for a temporary period of time. The position remains the same, but the salary may increase.

A newly hired employee must be clearly aware that if he does not “take root” in the team and does not show himself at work, the performance of duties in a maternity position after the main employee leaves the leave will be terminated with him. Therefore, a fixed-term employment contract will be concluded with the employee, indicating the end of the working time - before the release of the corresponding employee from the decree.

It is also important to understand the fact that even if the main employee does not want to return to work, the place can be given to someone else. Often, employers are cunning and ask the mother who has given birth to go to work for 1 day in order to fire this number of an objectionable worker from a maternity job.

But new employees can also extend their fixed-term contract if they become pregnant during this period and also go on maternity leave. The employer will be forced to extend the contract until the end of the pregnancy. Keep in mind that if a replacement employee is going on parental leave, then the contract is not extended, it will be terminated at the appropriate time. And the end of the term, as we already know, is the exit of the first worker to his position.

If the replacement employee is in the right place, then the company may offer him another similar position in accordance with staffing, or organize another one and create conditions at a new place of work.

The general procedure for hiring a newcomer for a maternity position is practically no different from the usual procedure.

An employment contract is concluded with the employee indicating the expiration date, a personal employee card is entered, and an order for employment is issued. If the first employee goes on the next vacation - to care for the child, then current contract ends and a new fixed-term employment contract is concluded until the “old” employee leaves the second decree. And in this case, the head of the company writes publishes new order about hiring.

Transfer to a maternity place

Transfer to a maternity position is carried out only with the consent of the substitute employee

If the company has been on the market for a long time, has an established friendly team, high salaries, then often such a place is offered to one of the people already working in the company.

It means translation an existing employee on the temporary work. Please note that the termless employment contract previously concluded with the transferring person is retained. Both his position and his salary are preserved. Just for a while he performs other duties.

Therefore, an employee who was offered to switch to a maternity job is more protected under the current labor law. Since in the above large companies it’s quite difficult for a person from the outside to get in, employees are happy to return from maternity leave and try to work as long as possible.

Replacement during maternity leave

Special attention should be paid to the issue of substitution within the company. If the deputy works in a substitute position without interruption from the performance of his duties, then in this case an additional agreement must be concluded with him to his indefinite employment contract indicating the amount of the additional payment being made.

If the deputy is transferred to another position with the performance of only other people's duties, then the salary will be accrued according to the position being replaced.

But in any case, an additional agreement will be concluded with the changer, which should indicate all the nuances of the transfer, payment and performance of duties.

A temporary transfer order is also issued, which the relocated worker must read and sign. In addition, the changes are reflected in the personal card, although there will be no record of the transfer in the work book. In fact, a temporary worker will be listed in the same position in all other documents of the enterprise.

Upon the exit of the woman who has given birth from the decree, he is released from the duties of the maternity position in accordance with the order for transfer to the previous position.

The main disadvantages of this kind of work with an internal replacement in a company for a deputy is the lack of official work experience in a new position and the possible loss of qualifications in a previous position.

Dismissal from a maternity position

With the dismissal of workers is not so simple.

According to Article 261 of the Labor Code, it is impossible to terminate an employment contract with a woman who has a baby under three years old, or with a single mother who has a disabled child under 18 years old or a young child under 14 years old at the initiative of the company's management.

Therefore, according to Russian law, there are two main reasons for the dismissal of an employee who is on maternity leave:

• at the lady's request)
• upon liquidation of the company.

Also, if during social leave a substitute worker also goes on maternity leave, then he can be safely fired after the main employee leaves the maternity leave. With the exception of the condition of pregnancy of the deputy itself, we considered it at the very beginning of the article.

In addition, it is possible to terminate the employment contract with the "vacationer" by agreement of the parties. In this case, a notice of resignation will not be issued. The parties determine the day of dismissal on which the dismissal order will be issued. On the same day, a work book should be issued and a full settlement between the employee and the employer should be made.

Often, such an agreement includes conditions for the payment of certain Money employee, which the head of the company is obliged to pay.